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Upper Tribunal confirms, again, need for specificity in EHCP

View profile for Ed Duff
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The Upper Tribunal has released judgment in the matter of B-M and B-M v Oxfordshire County Council [2018] UKUT35 (AAC).
 
This decision relates to the question of whether or not an Education Health and Care Plan (EHCP) needs to contain a high level of specificity in relation to Section F.
 
What this particularly means is, whether or not the young person attends a special school, the special educational provision in an Education Health and Care Plan needs to be very clearly detailed.
 
It is of some surprise that the Upper Tribunal is still having to consider appeals of this nature given that both the SEND Code of Practice and the existing decisions of the Upper Tribunal both point towards the need for a high level of specification within an Education Health and Care Plan.
 
The facts
 
The facts of the matter of this appeal are quite relevant.  In summary, parents appealed to the Special Educational Needs and Disability Tribunal (SENDIST) about Sections B, F and I of their child’s EHCP.
 
The Special Educational Needs and Disability Tribunal upheld that appeal in part, however, did not uphold the appeal in relation to Section I.
 
Parents sought an independent school in Section I whereas the Local Authority preferred a mainstream school which had an additional resourced provision catering particularly for pupils with autistic spectrum disorder.
 
The Special Educational Needs and Disability Tribunal did not uphold the parents’ appeal in relation to Section I, because the Tribunal concluded that a placement in an independent school represented an unreasonable use of public resources. The basis for that decision seemed to be because the Tribunal was happy that the maintained school would be suitable for the young person, especially with the use of additionally resourced unit.
 
The issue that went to the Upper Tribunal was the provision that the Tribunal ordered in Section F of the EHCP.
 
The parents were concerned that the Special Educational Needs and Disability Tribunal had misdirected itself by concluding that there was a general principle that if a young person was attending a special school then there was less requirement for specificity within an EHCP.
 
The local authority opposed the appeal to the Upper Tribunal relying on the decision of S v City and Council of Swansea and Confreywhere the Upper Tribunal indicated that there was a degree of flexibility where a young person would be attending a specialist placement.  However, importantly, the Upper Tribunal has always refused to create a doctrine that where a young person attends a special school the EHCP does not need to be as specific as if the young person was attending a mainstream school.
 
In this particular case, SENDIST concluded that because the young person would be attending an additional resourced unit, then there was no need to go to the level of specificity as if they were attending a main stream school. 
 
For example, the Special Educational Needs and Disability Tribunal ordered provision in Section F as follows:
 
  • C will have support from a learning support assistant.
     
  • C requires a programme to develop his social communication and social interaction skills delivered in one to one and small group settings with opportunities to practice new skills learnt through the day.
     
  • Daily opportunities with the teacher to improve self-esteem and develop a positive self through increased awareness of individual strength and attributes and through achieving success in a variety of contexts.
     
  • C requires a structured programme to develop his motor planning coordination skills.
     
  • C requires the equivalent 25 hours support to be used flexibly across the school day, to include individual, small group and whole class teaching to meet the outcome described.
     
The Upper Tribunal specifically highlighted these paragraphs within the Section F of the EHCP as being inadequate.  What is of importance is that these paragraphs were approved by the Special Educational Needs and Disability Tribunal in disposing of the appeal at first instance.
 
What is of some surprise is that the Special Educational Needs and Disability Tribunal thought that it would be appropriate to specify provision in Section F in the above terms.  We routinely appeal content of EHCPs written in similar terms to the above because they fail to meet the level of specification that is required.
 
Upper Tribunal decision
 
It is helpful that the Upper Tribunal has again reiterated that there is no doctrine in law allowing for any EHCP to be vague in a situation where a young person is attending a special school.  However, it is of some serious concern that the Special Educational Needs and Disability Tribunal approved the content of Section F of an EHCP which would otherwise have attracted an appeal on the basis of being inadequately specified.
 
It is also interesting to note that the Special Educational Needs lead judge, Jane McConnell, recently attended at an event hosted in London and have specific training on the requirement of specification. The parent lead SEND Blog and information site, Special Needs Jungle, attended that event and tweeted a picture of what Judge McConnell deemed to not be sufficient specification. This is what we also work to. In our respectful opinion, Judge McConnell is entirely correct in the interpretation of ‘specificity’.  It is of some concern that SENDIST failed to meet the requirements for specification in its Order and therefore this Upper Tribunal appeal was necessary. What this therefore calls into question is whether or not parents are achieving any consistency in the decision making of SENDIST.
 
Of course, every appeal will be fact specific and we have to acknowledge that the Special Educational Needs and Disability Tribunal is under tremendous pressure to deal with appeals at the moment.  We understand that in the last year, the Tribunal has dealt with almost twice the number of appeals as it did in the previous year. However, bearing in mind the Tribunal now seems to be the only body that is actively scrutinises what local authorities are doing in terms of EHCPs, this varying approach is rather troubling.
 
However, in overview, what this judgment does now mean is that there is no argument, at all, as to the level of specification that is required within an EHCP.  The Educational Health and Care Plan must set out specifically the support that the young person is supposed to be receiving in a language that has previously been used by the Tribunal, the EHCP has to be “so specific and clear as to leave no room for doubt as to what has been decided and what is needed in the individual case”.
 
If an EHCP is issued by either the Local Authority, or indeed the Special Educational Needs and Disability Tribunal, with this level of vague wording then it needs to be subject to further appeal.
 
If you are experiencing difficulties similar to those set out above, or otherwise in securing additional support for your child from the Local Authority then please do not hesitate to contact our specialist team of education solicitors on 0333 2027175.
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