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• 14 Feb 2022

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  No. It is entirely possible for an LA to decide in the light of a statutory assessment that the CYP does not after all require an EHCP in which case they should still have their SEN meets met by their school, but without the extra protection of an EHCP.

  The legal test for that is in the CFA2014:

  CFA2014 section 37(1):

  “(1) Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan—

  (a) the local authority must secure that an EHC plan is prepared for the child or young person, and

  (b) once an EHC plan has been prepared, it must maintain the plan.”

  Note that the CFA2014 statutory focus as above is now explicitly on what had – through case law – become the EA1996 focus, namely on the simple and practical question of whether an EHCP is required by a CYP in order that the CYP gets the SEP they need (rather than on any particular level of functioning or progress by the child/young person which had in some sometimes - but wrongly - become the focus before).

  Note that COP2015 introduces an additional focus on progress made COP2015 #9.55. The Noddy Guide would simply point out that what matters is the statutory test. The COP can explain that test, but it cannot lawfully change the test as this appears to try and do. More: Can the SEN Code of Practice trump the CFA2014?

  What is “necessary” is not defined by CFA2014 and allows for flexibility, which is not overridden by the COP2015. Whether it is “necessary” is to be deduced rather than defined. Its determination will vary according to the circumstances of a particular case and may well involve a considerable degree of judgment: Hertfordshire CC v MC and KC [2016] UKUT 0385 (AAC) #36. 

  The LA and FTT should generally ask whether, without an EHCP, “can the child’s special educational needs be met through provision from the resources normally available to a mainstream school and will they actually be met?”: JP v Sefton MBC [2017] UKUT 0364 (AAC)#14-15, DH & GH v Staffordshire CC [2018] UKUT 49 (AAC) #30.

  But the Noddy Guide thinks that the case law is currently a bit confused. 

  For a slightly different approach to the legal requirements, see CB v Birmingham CC [2018] UKUT 13 (AAC)#16-17: “there is a clear, albeit rough and ready resource line to be crossed before an EHCP is considered to be necessary. It is based on the kinds of provision a school could make from its own notional SEN budget”; the local offer is relevant as to what the school may provide, but a party may “show that it does not represent what is expected to be available, or that a particular school will not be able to make the provision expected under the local offer”. However, in reaching that different view about what was required the UT in that case did not refer to or appear to apply the decisions above as to the “can” and “will” questions – it proceeded on the assumption that if schools can, then they will; indeed that if all schools in the area can, all will. 

  It is also hard to reconcile the UT’s suggestion in that case that a parent could set out to show that a particular school could not deliver what the LA set out in the local offer, with the suggestion that the LA need not show that the provision would be available at all schools in the area. If no particular school is in the frame at the time, then the questions must indeed relate to all schools in the area since the parent is entitled to express a preference for them all, so all must be assessed by reference to the EHCP trigger.

  The Court of Appeal approved HW and MC and KC (as well as Manchester CC v JW [2014] UKUT 168) that what is necessary is a “value judgment” as to the approach to considering what is “necessary” in Nottinghamshire CC v SF and GD [2020] EWCA Civ 226 #20-26. The Court of Appeal considered that what is “necessary” is a “an evaluative judgment [for the FTT] using its specialist expertise” which “will depend on the nature and extent of the provision required for the child concerned”, and “is not a concept that is to be over-defined”. It also recorded that the provision made for the CYP has to be compared with that available nationally in mainstream (c.f. EA1996 which compared the educational provision provided generally for others in the mainstream schools in the area, which appeared to be the position in CB above). In other words: would a CYP need an EHCP to secure their SEP given the general pattern of provision in mainstream schools across the country (i.e. regardless of the position within that LA’s area or within the actual placement they are to attend). The question of whether an EHCP is necessary may include whether there is a shortfall in provision currently, or if there is not, whether there may be in the future upon a change to a different school or resources. 

  In that case, it is notable that the Court of Appeal upheld the legality of the FTT’s conclusion that an EHCP was required even though the school had correctly identified the child’s SEN and was making the required such that he was making appropriate progress: “We have concluded that the level and quality of provision currently made by [the school] for [HD] is unlikely to be replicated in other LA area mainstream schools, and would require an EHCP to ensure its delivery and monitoring.” That shows that the door is firmly open for EHCPs which are essentially there as only a safety net (to prevent the specified SEP being removed or changed), rather than being used as levers to secure additional SEP as might more generally be the position.

  The FTT can conclude that an EHCP is “necessary” even in the absence of a clear educational programme, particularly where the young person has suffered educational anxiety: Gloucestershire CC v EH (SEN) [2017] UKUT 85 (AAC) #47. 

  In respect of young people specifically, the definition of SEP is to “identify those young persons for whom standard educational provision will not suffice”. In determining what provision is made generally by mainstream post-16 institutions, the FTT need not look at every mainstream post-16 institution but should exercise professional educational judgment to fix the typical nature of provision made for that particular age group. Once that is done, then the FTT can determine whether the provision required for a particular young person is additional to or different from that made generally in England (although a particular LA area is likely to be representative) and therefore is SEP: RBKC v GG [2017] UKUT 141 (AAC) #5.

  More: 
  Does the LA have a duty to make provision where a child or young person will not obtain further qualifications? 

  Can the LA or FTT look only at what the child or young person requires now for the purposes of EHCPs?

  Some of the caselaw under EA1996 section 324 may continue to be relevant. See for example SC & MS v Worcestershire CC [2016] UKUT 267 (AAC) (“whether, without a statement, the decision maker can be satisfied, to a reasonable degree of certainty, that the required educational provision will be delivered”); LS v Oxfordshire CC [2013] UKUT 135 (AAC) (relevance of whether SEP is secure); JS v Worcestershire CC [2012] UKUT 451 (AAC) (progress must be put into context of support being given and whether that support will continue); MC v Somerset CC [2015] UKUT 461 (AAC) (it might be necessary to make a Statement because “there was insufficient awareness of the special educational provision which a child requires. It might be if the child needed to have a statement of SEN to access the relevant specific provision”).

  Go to Glossary

  

  Noddy 'no-nonsense' Guide
  Authors: David Wolfe QC, Leon Glenister

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