R vs Lancashire County Council ex parte M (1989)

In this case, known as the ‘Lancashire judgement’, M had a statement which specified speech therapy provision under part 3 as ‘special educational provision’. When that provision was not made, the LEA claimed that they had made a clerical error when writing the statement and that speech therapy must always be ‘non-educational provision’ on the grounds that speech therapists are employed by health authorities.

M’s parents challenged this interpretation of the law by seeking judicial review and were successful, in that the court ruled that speech therapy could be either a medical provision or an educational provision, depending on the nature of the child’s needs for the therapy; and, that the question of who employed the therapists was irrelevant to this decision.

The LEA appealed against this judgement, but it was upheld by the court of appeal.

The judgement included this comment, which is still the only guidance parents have as to whether their child’s needs for any kind of therapy is ‘medical’ or ‘educational’:

“To teach an adult who has lost his larynx because of cancer might be considered as treatment rather than education. But to teach a child who has never been able to communicate by language, whether because of some chromosomal disorder ... or because of social cause ... seems to us just as much educational provision as to teach a child to communicate in writing.”

Many LEAs still tell parents that speech therapy belongs under the heading ‘non-educational provision’ (i.e. part 6 of a statement, where no-one has a strict legal duty to provide it). They still tell parents that this is because speech therapists are employed by health authorities. However, the Lancashire judgement specifically rejected this argument. It is the child’s need for therapy which is of key importance. The main task for parents is to argue that their child’s need for speech therapy is ‘educational’ rather than ‘medical’.

All you have to go on is the judge’s comment above, drawing the distinction between a need for speech therapy following surgery on your larynx (medical) and the need for speech therapy due to chromosomal disorder or social cause (educational).

Obviously, under this distinction, the majority of children with special educational needs have speech therapy needs which are ‘educational’ and which therefore should be set out in part 2 of a statement. All Down’s Syndrome children, for example, have an ‘educational’, not ‘medical’, need for speech therapy, according to the distinction made in the Lancashire judgement.

Many LEAs openly disregard the Lancashire judgement. Why? Because once the need for speech therapy is accepted as ‘educational’, it must be set out under part 2 of the statement as one of the child's ‘special educational needs’. And, once the need is set out under part 2, then according to ex parts E, the speech therapy provision must be specified under part 3, so that the ultimate responsibility for making the provision then rests with the LEA. They may ask the health service to provide the therapists but, if that isn’t possible, the LEA themselves must make the arrangements needed and cover the cost.

The message for parents is: ‘Get your child’s need for speech therapy written into part 2, as a special educational need, and the rest should follow’.

Although there is no equivalent to the Lancashire judgement covering other therapies (e.g. occupational therapy), the same argument has been used successfully by parents wanting to make their child’s occupational therapy secure. That is, by arguing that the need for occupational therapy is educational rather than medical, they get the need written into part 2 of the statement. The provision to meet that need must then be specified under part 3, which guarantees the help, as the LEA is ultimately responsible for making the ‘special educational provision’.

The message for parents is: ‘Get your child’s need for speech therapy written into part 2, as a special educational need, and the rest should follow.’

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