How specific does an EHCP have to be?

A lack of specificity negatively impacts on the ability of a parent or young person to enforce the provision stated in an Education, Health and Care Plan (EHCP). If the provision is not stated specifically enough, then it will not be enforceable under section 42(2) of the Children and Families Act 2014. But how specific does the provision have to be?

The starting point in answering this question is a case which is arguably the most significant judgement on the subject matter, that of Judge Laws in L v Clarke and Somerset County Council [1998] ELR 129. 

He held that the law requires EHCPs to have a “very high degree of specificity” and the question to be asked is whether the provision in Section F is “so specific and so clear as to leave no room for doubt as to what has been decided is necessary in the individual case”. 

This was confirmed by the Upper Tribunal in JD v South Tyneside [2016] UKUT 9 (AAC) and further by paragraph 9.69 of the SEND code of practice which states that “Provision must be detailed and specific and should normally be quantified, for example, in terms of the type, hours and frequency of support and level of expertise, including where this support is secured through a Personal Budget”. 

At this point I expect you may say that the question in the title of this article has been answered. However, that would be too quick.

Judge Laws stated in his decision in Clarke that the requirement that provision should be specified in terms of hours per week is not an “absolute or universal pre-condition of [a] statement… There will be some cases where flexibility should be retained” (SEN statements have been replaced by EHCPs).  The view of Judge Laws as to the need for flexibility in some cases when specifying provision in an EHCP is confirmed in recent cases, including in Worcestershire County Council v SE [2020] UKUT 217 (AAC). In that case, Judge Lane also set out several principles concerning specificity, including:

1.    “A lack of particularity may allow less specific provision, whereas a more detailed case may require more detailed provision”;

2.    The SEND Tribunal does not have to specify every last detail of the special educational provision to be made;

3.    “Failure to specify a level of support after a particular date may lack the required degree of specificity”;

4.    “Provision cast in the form of recommendations as opposed to requirements may lack the requisite degree of specificity”;

5.    There will be some cases where flexibility should be retained. “The degree of flexibility which is appropriate in specifying the special educational provision to be made in any particular case is essentially a matter for the tribunal, taking into account all relevant factors. In some cases a high degree of flexibility may be appropriate, in others not”;

6.    “In distinguishing between cases where provision is sufficiently specific and those where it is not, it is important that the plan should not be counterproductive or hamper rather than help the provision which is appropriate for a child. The plan has to provide not just for the moment it is made, but for the future as well.” 

If absolute precision would require a continual revision of the plan, that is not appropriate. “A plan must allow professionals sufficient freedom to use their judgement on what to do in the circumstances as they are at the time. The SEND Tribunal is entitled to use its expertise to decide on the proper balance between precision and flexibility”.

7.    Greater specificity may be required if a child is to be educated in a mainstream school rather than a special school.

Further guidance was provided by Judge Lane in another case, London Borough of Redbridge HO (SEN) [2020] UKUT 323 (AAC):

1.    “Whilst there may be a need for some flexibility, it should not be used as an excuse for lack of specificity where detail could reasonably have been provided.”

2.    “The nature of the provision will often point towards the necessary level of detail.”

3.    “Using vague words such as “support”, “input”, “interventions” and “opportunities”, when unadorned by specifics, is unlikely to be sufficient.”

Since every case is different, there is no definitive answer to the question in the title of this article. An EHCP must leave a Local Authority with a clear picture of what is required to be provided and should be so specific as to ensure enforceability under section 42(2) of the Children and Families Act 2014.  The degree of flexibility in any case is a matter for the SEND Tribunal to decide if the parties cannot.

If you require advice or assistance with an EHCP, please contact Thomas Emmett, Head of Education, at [email protected].