Q:
Characteristics of a setting
We have an LA who are trying to exclude anything that they deem describes a "setting" from section F provisions, claiming it can only go in Section I. We know this is not true and this is not what section I contains.
We also know that it's common to say e.g. needs a low-sensory environment or e.g. needs toileting facilities of a certain type.
But I can't find reference to this in the case law in the Noddy Guide and the LA just keep repeating it.
Kinds of things they want to exclude: sensory environment relating to classrooms and lunch facilities, type of exams and qualifications a school offers, multi-disciplinary teams (e.g. OT and SALT) holistically delivering to child's needs, and working on skill integration (ie theraputic special school ). All of these defined as needs in Section B.
There's lots of really clear reference to case law showing that health care or social care provision which educates or trains a child can be special educational provision in the Noddy guide (thank you!)
It seems to be a catch-22: we are trying to make provision absolutely specific and quantifiable, but LA are trying to exclude anything that "relates to a setting", so some specific items they will claim can't be in Section F. Is there any precedent here?
A: SenseCheck
- 1 Yes
- 0 No
- 0 Other
- 15 Jul 2023
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Yes
Simple
OJ, thank you for your question.
While it is important to note that we cannot provide legal advice, I am pleased to offer some general guidance that you may find helpful.
Firstly, it would be beneficial, though not mandatory, if we had a better understanding of which stage in the 'EHCp process' you are currently at.
In any case, as a starting point, it may be worthwhile for a parent in a similar position to yours to remind the Local Authority (LA) that when determining the educational aspects (excluding section E) of an EHCp, it should follow a specific order. First, section B, which pertains to special educational needs, should be addressed. Next, section F, relating to special educational provision, should be considered. Only then should section I, concerning placement or "setting", be determined.
The need for the above sequential approach is clearly outlined in paragraphs 06.03 and 09.01 of the Noddy Guide, accessible through the following links:
06.03 Should the sections of an EHCP be considered in a particular order?
09.01 Is it permissible to decide on placement (section I) and then fit the SEP (section F) around that?
In cases similar to yours, it seems that the LA may be inclined to determine section B first, followed by section I, and then section F. I am sure you can discern numerous reasons why, intuitively, this may not be appropriate.
I trust that this guidance proves helpful to you. I look forward to reading other contributions, but please do not hesitate to post again if you have any further questions.
Sean Kennedy
Talem Law
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