Case summary

This case was decided under previous law but the legal principle remains the same, meaning this case is still relevant.

As part of their appeal, the parent wanted their child’s statement of special educational needs (now an EHC plan) changed to say that their child would be educated one year chronologically behind their peers due to their special educational needs (SEN).

The SEND Tribunal said it could not order this change to be made. It considered such an amendment to the statement to be out of its area of authority or remit.

However, the Upper Tribunal said placing a child in a different year group could fall within the definition of special educational provision.

Considering what special educational provision a child requires (and what changes are needed to their EHC plan to make sure all the required special educational provision is set out) is in the SEND Tribunal’s remit to decide and order.

What does this mean?

Special educational provision is defined in section 21(1) of the Children and Families Act 2014.

Broadly speaking, it means for a child aged two or more or a young person:

• educational or training provision that is additional to, or different from that made generally for others of the same age
• in mainstream settings
• in England.

Children and young people in England in mainstream settings generally are educated within their chronological age group. So, if a child or young person’s SEN mean they need to be educated outside of their age group, that is educational provision that is different from that generally provided for others of the same age.

This means that a requirement for education outside of a chronological age group can be special educational provision, and can (and must, if required) be specified in Section F of an EHC plan.

If your child requires this provision and your LA refuses to amend their EHC plan to specify it in Section F, this is something you can appeal to the SEND Tribunal.

A full copy of the case summary for AB v North Somerset Council (SEN) [2010] UKUT 8 (AAC) is available online.

For more information, please see our pages on what are special educational needs, what an EHC plan contains and appealing to the SEND Tribunal.