Legal opinion on DfEE’s position on specification and quantification

In September 2000, David Wolfe, a leading barrister in this area of law, looked at the question of whether the DfEE were right to argue that the law did not require LEAs to quantify the provision that children need.

He came to the conclusion that the DfEE’s argument is based on a misunderstanding of the law and may well result in unlawful Statements.

His opinion, which he gave to IPSEA pro bono, began by reviewing all relevant case law, and his conclusions are set out below.

[Note: Section 324 is part of the Education Act 1996, the Regulations referred to are the Education (Special Educational Needs) Regulations 1994, and the names are those of judges whose judgements have made case law in this area of law, and whose cases were reviewed earlier in Mr Wolfe’s opinion.]

“If the changes are made as proposed, there may well be some (early) instances in which the effect sought by the DfEE will be achieved; but such results will be unlawful. Unnecessary litigation will be required to sort out the mess created.”

Conclusions from the case law

32	In my opinion, the above cases indicate, with one exception (on which there has been no judicial view), the DfEE’s assessment (as above) is not consistent with the view taken by the judiciary.
33	In particular:
a.	The requirement for “specificity” comes from section 324 and from the regulations (see, for example, Schiemann J, Laws J, Dyson J)
b.	that requirement includes the need for “quantification” (see, for example, Schiemann J, Laws J, Dyson J, Sullivan J, Elias J)
c.	such “quantification” covers (at least) issues relating to the number of hours per week of a given provision, or the staff:pupil ratios to be enforced (see, for example, Schiemann J, Laws J, Dyson J, Sullivan J, Elias J)
d.	there is no freestanding concept of “quantification”; it is part of the statutory requirement for specificity (see, for example, Dyson J, Laws J, Sullivan J)
e.	there is a strong statutory presumption in favour of such specificity (and including quantification) (see all); if matters can reasonably be quantified, they should be (see, for example, Sullivan J)
f.	the requirement to quantify is particularly strong where quantification is in issue between the parents and the LEA (see, for example, Richards J, Sullivan J)
g.	if read alone, the text of para 4.28 of the Code of Practice imposes, if anything, a *lesser* requirement for specificity/quantification than do section 324 and the regulations (such that, if read alone, it can lead to illegality by reference to those statutory provisions) (see Dyson J)
h.	para. 4.28 of the existing Code must thus only read in conjunction with the statutory provisions and then only providing an example (namely where a child’s needs are changing) of the circumstances in which the normal requirement for specificity/quantification (which comes from the statutes) is not absolute (see, for example, Laws J, Richards J, Dyson J)
i.	even then, the preferable approach is likely to be to specify/quantify a minimum level of provision such that more can be provided as necessary but such that a level of protection for the child remains (seer for example, Sullivan J, Elias J)
j.	it is wholly unacceptable to leave open (for a further assessment, express or implied) the provision to be delivered (see Richards J)
k.	there is a strong legal objection to a statement which leaves room for later dispute (particularly in the light of the lack of any option for further appeal to resolve such a dispute) (see, for example, Richards J, Sullivan J)
l.	a statement will not be lawful unless “there is no room for doubt as to what has been decided” and that is unlikely to are the case where quantification issues (such as hours of provision or staff:pupil ratios) have not been determined and written into the statement (see Sedley J, Laws J, Dyson J, Sullivan J, Elias J)
34.	All of the above points are consistent with each other; and wholly inconsistent with the DfEE’s apparent view (above). I am not aware of any cases which undermine any of those principles: nor of any cases which support the DfEE’s view.
35.	The one point which arises from the DfEE’s view (as above) on which the above cases shed no light is the proposed change from “specify” to “set out” in the regulations. As above, the DfEE considers that this will not change the meaning of the provision but will (somehow) more clearly convey the importance of setting out fully the provision to meet the needs of the individual child. It is not clear to me how the new 1angauge can more clearly convey the importance of setting out fully the provision to meet the needs of the child. It seems to me that further text (in the Regulations or the new Code) would be needed to achieve that effect. However, what is clear is that the new text cannot dilute the requirement for “specificity” which, as the above analysis shows, ultimately comes from the terms of section 324. If the Regulations purported to undermine that requirement, they would be unlawful and ineffective.

“there is no freestanding concept of ‘quantification’; it is part of the statutory requirement for specificity”

Conclusions

36.	Overall, therefore, in my clear opinion:
a.	the proposed changes to the Code and the Regulations will not reduce the requirement for specificity (and quantification which is part of specificity) which comes from section 324 of the 1996 Act. If anything, the opposite will happen.
b.	However, on the way, the change is likely to lead to exactly the sort of confused thinking manifested in the replies given on the point by the DfEE, as above. If the changes are made as proposed, there may well be some (early) instances in which the effect sought by the DfEE will be achieved; but such results will be unlawful. Unnecessary litigation will be required to sort out the mess created.
c.	If the DfEE wants to dilute the requirements for specificity and/or quantification, it can only do so by promoting changes to section 324 of the 1996 Act.

David Wolfe
Matrix www.matrixlaw.co.uk
26 September 2000

“If the DfEE wants to dilute the requirements for specificity and/or quantification, it can only do so by promoting changes to section 324 of the 1996 Act.”