Q:
07.03 Can health or social care needs be special educational needs?
Noddy No-nonsense Guide
Authors: David Wolfe KC, Leon Glenister
14 Feb 2022
A: SenseCheck
- 1 Yes
- 0 No
- 0 Other
- 24 Feb 2025
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Yes
Complex
Yes. In specified circumstances something which is generally provided by the NHS or social services ends up being also treated, in SEN law, as “educational provision” (which then ends up being included as part of the SEP in section F of an EHCP and potentially also in the sections of the EHCP dealing with health care provision or social care provision).
See CFA2014 s21(5). SEN will include those needs for what would otherwise be health or social care provision that are treated as SEP because they “educate or train” the CYP. It follows that the mere fact that the provision in question might be considered health or social care, or might in practice be provided by a social services department or the NHS, does not mean that it is not to be treated as SEN. It follows that the needs which require that provision, are then SEN.
The most obvious effect of this is that speech and language therapy is almost always SEP and so communication needs are almost always an SEN and not just a health care need.
Where provision is SEP by virtue of CFA s21(5), then it is SEP “instead of” health care or social care provision i.e. it is no longer health care or social care provision for the purposes of the EHCP. As such, any provision in sections G or H is not SEP: R (LS) v LB Merton [2024] EWHC 584#47. It would therefore only form part of recommendations of the FTT, and not constitute an order. That prohibition on duplication should not though lead to provision being split into components, with an SEP element in section F and an SCP element in section G. More: >12.27 Can you enforce an FTT recommendation that h...
More:
>08.02 Is there a rule specifying what counts as SE...
>08.06 Can health or social care provision also be ...
Noddy No-nonsense Guide
Authors: David Wolfe KC, Leon Glenister
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