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• 01 Nov 2024

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  ALP needs to be specified in a way which is “detailed, specific and quantifiable”: para 23.37 ALN Code 2021. 

  What is sufficiently specific will depend on the facts of the particular case. 

  The UT in Worcestershire County Council v SE [2020] UKUT 217 (AAC) para 74 provided a useful summary on the English law, which the ETW is likely to follow as there is similar guidance on specificity in the English COP 2015. UTJ West, set out the following  principles: 

  1. A primary consideration in relation to specificity are the statutory duties of the LA, maintained school or FEI.
  2. The EHCP is a free-standing legal document which parties are entitled to rely upon if a question arises about provision being made.
  3. Where there is a need for flexibility it should not be an excuse for lack of specificity where detail could reasonably have been provided.
  4. The nature of the provision will often point towards the necessary level of detail.
  5. Vague words like “support”, “input”, “interventions” and “opportunities” are unlikely to be sufficient.
  6. If a SEN pupil is to attend a mainstream school the tribunal is likely to need more detail than if the pupil were at a special school. 
  7. The tribunal can be pragmatic if the evidence does not enable the tribunal to set out the detail but it would be inappropriate to adjourn. 
  8. The FTT can use its expertise as a specialist panel.

   

  Further relevant principles from English case law include: 

  1. A “plan must allow professionals sufficient freedom to use their judgment on what to do in the circumstances as they are at the time” (here the child was to change schools a few months later): BB v LB Barnet [2019] UKUT 285 para 22. The tribunal has the power to delete provision if they are too prescriptive: FC v Suffolk CC [2010] UKUT 368 (AAC) para 33.
  2. It is important to bear in mind that the IDP is a legal document and so it needs to be sufficiently clear so that it can be enforced in the event there is a dispute: London Borough of Redbridge v HO (SEN) [2020] UKUT 323 (AAC) para 16.
  3. The FTT will be pragmatic, particularly in cases where a child is to start at a new school – the statement will be “realistic and practical” where adjustments will be made to provision, and knowledge develops: CL v Hampshire CC [2011] UKUT 468 (AAC)para 15-16.
  4. It may be necessary to specify the Staff qualifications/experience: e.g. “teacher who is experienced in working with pupils who have significant learning difficulties and autism/communication disorders”: R v Wandsworth ex parte M [1998] ELR 424.
  5. The need for and amount of 1:1 work needs to be specified: L v Clarke and Somerset [1998] ELR 129.
  6. Input from other professionals, such as sessions of speech therapy needs to be clearly set out and quantified: R v Harrow ex parte M [1997] 3 FCR 761.

  Further useful guidance in English case law on wording can be found here: 

  1. Where small group work is involved, the size of the group, the length and frequency of the sessions should usually be included: L v Clarke and Somerset [1998] ELR 129. However to say only that a child needs to be taught in “small groups” will not always be unlawful: SB v Herefordshire CC [2018] UKUT 141 (AAC) para 35. In that case neither party had advanced any argument on what size of teaching group was required.
  2. It needs to be clear whether “small group teaching” requires a small class or being within a small supported group doing differentiated work in a whole class setting: K&K v The Authority [2013] UKUT 624 (AAC)
  3. Words like “as appropriate”, “as required”, “regular”, “periodic”, “subject to review” are all likely to be considered not sufficiently specific. 
  4. In B-M and B-M v Oxfordshire CC (SEN) [2018] UKUT 35 (AAC) para 5, the following was found unlawful: 
     • “support from a learning support assistant” said nothing about how much or their training or experience; 
     • “programme to develop his social communication skills” failed to say anything about the nature/content of the programme; 
     • “opportunities for” is “vague, meaningless and unenforceable”; and
     • “the equivalent of 25 hours of support to be used flexibly across the school day to include individual, small group and whole class teaching to meet the outcomes described” is vague and lacks the required specificity; what is meant by “equivalent”? who is to provide the support?

   

  

  Nodi No-nonsense Guide Wales
  Authors: Civitas Law education team

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