Can the LA refuse to make private provision part of Section F of my child's EHCP when I have evidenced the expertise does not exist locally and that it is required clinically?

My child is unable to eat or drink after suffering trauma at birth. A specialist OT intervention has been requested by his consultant but this is not available in our locality. I have exhausted all other options and found a private provider. The intervention must become an integrated part of my son's care to be successful. It must be carried out at school in the same way as at home so I need it to become part of Section F of the EHCP. The LA have agreed to include some of the advice as part of Section G. My child already has statements on his plan in Section F endorsing the need for consistency, routine and stability in all aspects of his learning. Can I use this as legal grounds to make the private intervention part of Section F?


Gill Golden
20 Apr 2024

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A: SenseCheck

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  • 07 May 2024
  • Yes


    Hi Gill,

    Based on my reading of your question, the issue appears to be whether something that is ostensibly a health care provision can be included in Section F as an educational provision.

    The Noddy Guide provides some helpful insight into this legal question.

    08.06 Can health or social care provision also be educational provision? 

    For a health care provision to be deemed a special educational provision that could be included in Section F, the provision must ‘educate’ or ‘train’ a child or young person. This is set out in Section 21(5) CFA 2014

    There is no rule that special educational provision is provision that is exclusively educational. This applies to Section 21(5) CFA 2014 where provision that provides access is not excluded

    However, as referred to in the Noddy Guide, the case of East Sussex CC v KS [2017] UKUT 273 (AAC) something that is medically required for a child to be educated does not of itself make it a special educational provision.  

    In the case of East Sussex County Council v JC [2018] UKUT 81 (AAC), the Upper Tribunal, when considering whether a powered wheelchair (which was accepted was essential to enable the child in question to access education) could be deemed a special educational provision, suggested that the First-tier Tribunal would need to ask itself how the wheelchair educates or trains a child by considering things such as: 

    ‘Is it because learning to use it, and developing and applying that learning, in itself amounts to education or training? If so, is this a one-off process that only takes a very short time, like learning to make a cup of tea? Is it an ongoing, developing and cumulative process, like learning computer skills? Is there nothing to learn in this process but only from the facilities that the wheelchair enables William to travel to?’

    The SEND Code of Practice at 9.75 states that decisions as to whether a health care provision can be treated as a special educational provision must be considered on an individual basis. Therefore, much would depend on the specialist advice obtained in respect how the OT intervention will manifest itself.   

    What to do next?

    In the first instance you should approach your local authority and set out your reasons as to why an OT intervention is a special educational provision and ought to be included in Section F. The quickest way of doing this is to make a request for an early annual review of the EHCP. 

    If they do not agree then ultimately you will need to appeal to the First-tier Tribunal. 

    Kind regards,



    Cameron Dunleavy
    Liverpool Law Clinic