P’s Statement referred to speech therapy under part 3 but in such vague terms that his father did not have a clear idea of how much help to expect for his son. The speech therapist’s advice recommended three hours a week. P received one hour per week.

The Statement did seem to be specific, however, about the money that would be spent on P’s provision: ‘P’s needs entitle him to extra funding at Band Level 3. This is now £6,000 a year.’

P’s father obtained professional advice that three hours of speech therapy a week could not be obtained for the annual sum of £6,000. He concluded that the reason why his son was not receiving the therapy he needed was that the figure of £6,000 acted as a ceiling on the spending that could be made on his son’s special educational provision. He therefore sought judicial review in order to challenge the legality of the LA’s banding policy, in that it seemed to place a fetter on the LA’s ability to give P the provision which his needs called for.

The appeal failed, but the judge’s comments on the situation provide useful guidance to other parents facing a similar problem. This is an extract from the judgement:

“… the County has a policy of allocating pupils with special educational needs into various bands or categories. All but one of these of these has a cash figure against them. Pupils are categorised according to the degree of impairment as assessed by the authority into 12 categories set out in a document entitled the Cumbria Scheme for Local Management of Schools ...I am not persuaded that it is illegal. The scheme does not indicate any unwillingness by the authority to have regard to the need for securing that special education provision is made for pupils who have special educational needs … Nor does the scheme as such fetter the authority’s discretion as to what is contained in the Statements of any of its Statemented pupils ...I am not persuaded that the authority regarded itself in any way as being fettered by the figure of £6,000 ... There is, in my judgment, no need to specify such a figure in the Statement. I am told, and can well believe, that many parents are pleased to know the amount of extra money which their offspring received compared with the generality of pupils. If in the present case nothing other than a sentence on the lines of ‘£6,000 is allocated to pay for all P’s needs’ has appeared in part 3 of the Statement I would have regarded this as not complying with the requirements of specificity contained in the statute and regulations. The reason for that is that the appeal process becomes impossible to operate if the parent, and indeed the Secretary of State, does not know what the nature of the provision is which the authority intends to make. However, that is not this case ...

The Statement is unsatisfactory in several respects and the authority ought to produce a new Statement as soon as is compatible with their duties of consultation and consideration and that the authority ought to produce it in such a form as makes it clear to P’s parents what the authority consider their son ought to receive by way of special educational provision and non-educational provision for his profound communication difficulties. Then the parents will be in a position to appeal if they wish to.”

This case establishes that bands, cash figures or positions on a matrix are not enough to satisfy the law’s requirement to specify provision in part 3 of a Statement. This remains relevant to EHC plans as the requirement to specify needs and provision also appears in the equivalent provisions of the Children and Families Act 2014 (s. 37(2)).

No case report is available online.

For more information, see our sections on what an EHC plan should contain, and on judicial review.