08.15 Does section F have to specify things like how much provision a child or young person requires, and how often?

Noddy 'no-nonsense' Guide

Noddy 'no-nonsense' Guide
Authors: David Wolfe QC, Leon Glenister
14 Feb 2022

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  • 14 Feb 2022
  • Yes


    Yes. “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”: COP2015 #9.69(F).

    The previous case law has been applied under the CFA2014 (More: Why does the Noddy Guide refer to the EA1996 and cases related to it when SEN law is now in CFA2014?). 

    For the classic formulation see: “The real question … is whether [the statement] is so specific and so clear as to leave no room for doubt as to what has been decided and what is needed in the individual case”: L v Clarke and Somerset [1998] ELR 129#27.

    For a useful summary on the law on specificity and quantification of SEP, see Worcestershire County Council v SE [2020] UKUT 217 (AAC)#74 per UTJ West, in which the UT set out 11 principles summarising the case law above. The UT gave further guidance, in summary: (i) a primary consideration in relation to specificity are the statutory duties of the LA, (ii) the LA is a free standing legal document which parties are entitled to rely upon if a question arises about provision being made, (iii) where there is a need for flexibility it should not be an excuse for lack of specificity where detail could reasonably have been provided, (iv) the nature of the provision will often point towards the necessary level of detail, (v) vague words like “support”, “input”, “interventions” and “opportunities” are unlikely to be sufficient, (vi) if a SEN pupil is to attend a mainstream school the FTT is likely to need more detail than if the pupil were at a special school, (vii) the FTT can be pragmatic if the evidence does not enable the FTT to set out the detail but it would be inappropriate to adjourn, (viii) the FTT can use its expertise as a specialist panel.

    The requirement for specificity “is carefully worded to depend on what is appropriate in the particular: so specific, so clear, necessary in the individual case, and Very often”, and in certain circumstances 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#22.

    Think who, what, where and when?

    [paragraph updated November 2022] In limited and specific circumstances, the need for specificity must be balanced against the need for flexibility and pragmatism. As articulated by the UT in London Borough of Redbridge v HO (SEN) [2020] UKUT 323 (AAC)#16: “The devil resides in the level of detail that the plan must contain. The EHCP is a legal document of an unusual type. Insofar as the FTT has made an order, the order must have sufficient certainty to be enforced in case of dispute. On the other hand, the plan is a living document for a developing pupil. The tension is between the certainty the parties, in particular the LA, need to comply with or enforce their respective duties and rights and the need for sufficient flexibility for the plan to remain relevant until the next review of the plan takes place. The child [will] develop or deteriorate considerably during that period.” In this case provision that the child “required extracurricular support at home for one hour a week from a trusted and familiar psychologist” was unlawful as it (i) was too vague in respect of content; (ii) impermissibly retrofitted to require, in practice, only one psychologist (a reminder that provision cannot be tied to a named provider or individual, see further DM v Cornwall CC [2022] UKUT 230 (AAC) #27); (iii) contained selection criteria entirely subjective to the pupil; which (iv) may make compliance by the LA practical impossibility; and (v) was in any event unjustified on the evidence or based on insufficient reasons. 

    “The specificity and flexibility of [Section F] is pre-eminently an area within the expertise of the FTT” – it is entitled to take a more flexible approach if it considers it to be appropriate and may delete provisions that are too prescriptive: FC v Suffolk CC [2010] UKUT 368 (AAC)#33. 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. The reference to an assessment that might take place was not an unlawful delegation of the FTT’s duty to specify SEP: CL v Hampshire CC [2011] UKUT 468 (AAC)#15-16.

    As such, following the UT’s decision in Worcestershire County Council v SE [2020] UKUT 217 (AAC), there is now a distilled set of principles to apply when considering whether provision is sufficiently specific, but it remains the case that those principles will have to be applied to the facts of an individual case and that sometimes seemingly fine lines will need to be drawn. 

    Words like “as appropriate”, “as required”, “regular”, “periodic”, “subject to review” are all likely to be indicative of illegality. 

    However, as noted in L, and E v Rotherham MBC [2002] ELR 25 #25, the requirement that provision should be specified in terms of hours per week is not an absolute and universal precondition of the legality of a statement (see further below cases). 

    The requirement to specify is “not a bureaucratic purpose…. by that provision, local authorities … and tribunals… are required to give full and adequate specific consideration to the needs of the child… the requirement for specificity outlaws … a general statement …. in such broad terms that it could lead to specific needs being ignored or inadequately focussed upon…. the second purpose is that, once made in terms which are specific the purpose of the provision can be furthered and effected by enforceability….”: E v Flintshire [2002] EWHC 388

    The legislative purpose is “to require focussed and express consideration to be given to the specific needs of a child and then to provide for them in terms which will further and effect its enforceability as a provision…”: IPSEA Ltd v Secretary of State for Education [2002] EWHC 504#6.

    A FTT should not “rubber stamp” an inadequately vague EHCP: EC v North East Lincolnshire [2015] UKUT 648 (AAC)#28. The FTT is “empowered to take a much closer look at the content of the LEA's statement [than the judicial review court]. Indeed for many purposes it stands in the LEA's shoes, re–evaluating the available information in order if necessary to recast the statement”: LB Bromley v SENT [1999] ELR 260 at 294

    Some examples of wording from the authorities:

    • In B-M and B-M v Oxfordshire CC (SEN) [2018] UKUT 35 (AAC)#5, the following was found unlawful: (1) “support from a learning support assistant” said nothing about how much or their training or experience; (2) “programme to develop his social communication skills” failed to say anything about the nature/content of the programme; (3) “opportunities for” is “vague, meaningless and unenforceable”; (4) “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?
    • In SB v Herefordshire CC [2018] UKUT 141 (AAC)#35 the UT (surprisingly) found that where neither party had advanced any argument on what size of teaching group was required, and where (per the UT) achievement of the aims of the EHCP did not compel the FTT to specify group size, it was not an error of law for the FTT to order that a child would be taught in “small groups” without specifying the size of those small groups. The flexibility was justified as, although the LA did not specify an upper limit on size, it was clear that the groups must be small enough to allow effective delivery of other provision in the plan. The Noddy Guide would note there was no mention by judge of other key cases such as K&K v The Authority [2013] UKUT 624 (AAC), L v Clarke and Somerset [1998] ELR 129, E v Flintshire [2002] EWHC 388 and IPSEA v Secretary of State [2003] EWCA Civ 7. It is hard to see how the requirement of “small groups” the judge contemplated could be enforced.
    • S v SENDIST [2007] EWHC 1139 is an example (of a child in a special school) where “much more detail” was needed: 
      “LS needs direct involvement with speech and language therapy in the classroom, initially a visit once a week for a term, thereafter reducing to at least once a fortnight. This should involve joint planning and delivery with the class teacher.
      The speech and language therapist also needs to manage a structured programme, which will include training, to support ‘out of school’ professionals in providing a consistent approach and assisting LS in developing and generalising his skills in different settings. Similarly LS’s parents and carers need support so they may embed more firmly the full range of communication methods used in school so he can apply them in other contexts, including home and respite provision. The speech and language therapist will visit the home at least three times a year.”
      And per S v SENDIST saying (for example) that the therapist should give “initially a visit once a week for a term thereafter reducing to once a fortnight” was too vague [e.g. How long is each session? What should each session consist of?]. Likewise, that the speech and language therapy “also needs to manage a structured programme, which will include training, to support out of school professionals in providing a consistent approach and assisting LS in developing and generalising his skills in different settings” [what sort of professionals?]. Similarly “LS’s parents and carers need support so they may embed more firmly the full range of communication methods” [what type and intensity of support?]. Nor should the FTT have relied on the LA’s assurance that it would flesh out the detail later [unless that led to amendment to the statement, how would the parents appeal?].
    • The Court in M v Brighton and Hove City Council [2003] EWHC 1722, condemned as impermissibly ambiguous (especially the last sentence): “Opportunities for individual and/or small group support within class and a withdrawal basis as considered appropriate to target literacy difficulties and specific areas of the curriculum. J needs to be in a class setting with others who have similar severity of specific learning difficulty and work across the curriculum. He needs to be taught by specialist teachers trained in teaching pupils with severe specific learning difficulties.”
      In JD v South Tyneside [2016] UKUT 9 (AAC)#8-11 the FTT criticised: (1) the use of the term “it is recommended that the needs and objectives as previously outlined should be met by the following”, as it suggested nothing at all is required, (2) “individual programmes tailored to her needs. She will require a handwriting programme, a PE programme and a reading programme. These programmes can be provided on an individual basis or in a group situation as deemed appropriate by her school (SENCO)” added nothing as the content of programmes is not specified, (3) “access to multi-sensory teaching may be helpful” was beside the point as Part 3 is to specify required provision, (4) “opportunities to encounter success in her work in order to increase her confidence and self-esteem” achieves nothing as the LA would not design opportunities for the child to encounter failure. 
      In K&K v The Authority [2013] UKUT 624 (AAC), the UT had to decide whether “taught in small groups of less than 10 pupils” required small classes, or merely being within a small supported group doing differentiated work in a whole class setting. Recalling that the function of a statement is to “specify” the SEP, the UT said that the FTT should have resolved and made clear what was required and meant; and sent the case back to the FTT to decide.

    More: Can section F be less specific just because the child or young person is in a special school?

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    Noddy 'no-nonsense' Guide

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