We are often contacted by parents who say that they their son/ daughter needs an EHCp but the local authority (LA) says that this is not necessary as the mainstream school they attend has “Access to the provision their child needs to meet their needs”. The LA’s response essentially reflects the guidance given in the SEND Code of Practice at para 9.55 etc.
So, what is meant by necessary? Earlier this year, the Upper Tribunal gave us some help in JP v Sefton MBC [2017] UKUT 0364 (AAC) a case that concerned a 14-year-old named Dean who it seems was educated in what was described as a “private” school. The First-tier Tribunal decided that Dean did not require an EHCp because his mother:
“did not establish that there is currently a need for provision to be made to meet Dean’s special educational needs in accordance with an EHCP. Such provision as is required may be made within a mainstream school setting and from within existing resources, including available Top-up”
[in this case Top-up funding means additional funding that COULD be available to provide special education provision; this is made as a result of a successful application to the local authority made by a school].
This somewhat robotic reasoning was challenged in the Upper Tribunal.
It was accepted that the case of NC and DH v Leicestershire CC (SEN) [2012] UKUT 85 (AC) laid down a two-part test that should be followed when deciding to issue a statement of special educational needs (now an EHCp of course). In this case HH Judge Pearl asked:
- Can the special educational provision a child requires be provided from within the resources normally available to a mainstream school?
- If so, can the school reasonably be expected to make such provision from within its resources?
In this case, counsel for the mother described this as the “can” and “will” questions, which is helpful. They could also be referred to as the generic and specific question.
In SC and MS v Worcestershire CC (SEN) [2016] UKUT 267 (AAC) reframed the above in the following terms:
“I think perhaps a more practical route to the same destination is simply to ask whether, without a statement, the decision maker can be satisfied, to a reasonable degree of certainty, that the required educational provision will be delivered. In answering that question, regard should be had to the legal consequences of a statement … “
Here the legal consequences of a statement referred to (amongst other things) the stability and certainly of delivery inherent in a statement of special educational needs (now EHCp), something Parliament clearly thought was necessary for some children and young persons.
In JP v Sefton MBC [2017] the Upper Tribunal favoured the position of the LA, the evidence and the way the First-tier Tribunal case was presented were material factors. That said, what is the take away? Whilst others may disagree, it is suggested that parents and LA’s should:
- Not to apply the two-part test in NC and DH v Leicestershire CC (SEN) [2012] UKUT 85 (AC) in a rigid or generic way.
- This will mean identifying a child’s or young person’s special educational needs and the special educational provision they require as specifically and accurately as possibly.
- The practicalities and hurdles associated with securing provision that is theoretically available should be considered in detailed. Put another way, just because, for example, speech and language therapy could be available what is the likelihood of it being available to meet need? If it seems that provision is a theoretical possibility at best, this is evidence that the security of an EHCp is required.
The judgement can be found HERE
Sean Kennedy of Talem Law
13th December, 2017.