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• 14 Feb 2022

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  No. CFA2014 s36(3) specifies that the LA must “determine” whether SEP may be necessary reinforcing that the LA must determine rather than leaving matters for future assessment. 

  In Worcestershire County Council v SE [2020] UKUT 217 (AAC)#82-85, the UT held that a “termly review” was permissible, stating that the “ECHP as amended with the review provision allowed professionals sufficient freedom to use their judgment on what to do in the circumstances as they are at the time. I am therefore satisfied that the provision for termly review also does not offend against the principle laid down by Laws J in L v. Clarke and Somerset.” The Noddy Guide thinks that is perhaps problematic – it leaves it to the “professionals” to decide on SEP rather than either (1) the LA(which is charged with specifying the SEP in an EHCP subject to an appeal), or (2) the FTT in the event that the parent disagrees with what gets decided (since there would be no appeal against the review outcome); and it hard to see how that fits with the bedrock requirements for enforceability.

  The EHCP must actually set out what has been decided by the LA and, on appeal, the FTT. Recall: It cannot leave matters over for future assessment, such as:

  1. the extent of disapplication from the National Curriculum: C v SENT and Greenwich [1999] ELR 5.
  2. the nature or amount of other provision (say speech therapy) which is to be provided: Re A [2000] ELR 639.

  For example, in E v Rotherham MBC [2001] EWHC 432, condemning a statement (now EHCP) which provided speech and language therapy detail but then said that it was to be “formally reviewed every 6 months by a speech and language therapist” and that “any change in the level [of] support will require a formal discussion between the [LA], the NHS Trust and one or both of [C]’s parents, but the above level of support is to remain at no less than the present level until June this year.”

  Although note that the Court of Appeal accepted as lawful a statement which made provision for future assessment of therapy needs where the statement was seen as necessary to get the child back into school and his therapy needs could not be assessed until he was back in school: E v Newham [2003] EWCA Civ 9 #61-66; although presumably the results of the later assessment should then have been encapsulated in a fresh statement.

  Also see Hampshire CC v JP [2009] UKUT 239 (AAC): the FTT did not err simply because there was a risk that a place at a placement would not be available for 9 months. This is because there was a chance a place would open sooner, and to look for other placements may lead to disagreement and stress for the child.

  [paragraph updated November 2022] In DM v Cornwall CC [2022] UKUT 230 (AAC) #32, the UT found an “All You Need to Know” document about a child was unlawful on the basis that “the tribunal, as the arbiter of the document, had to say more about how that document was to be compiled and what it should contain”. 

  More: Why does the Noddy Guide refer to the EA1996 and cases related to it when SEN law is now in CFA2014?

  Go to Glossary

  

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

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