E was a 13-year-old boy with literacy and numeracy problems. His Statement referred to both of these as special educational needs in part 2, but in part 3 only specified provision to meet the literacy problems. The local authority’s explanation was that as the school could meet the numeracy provision from its own resources they were not serious enough for them to have to make any provision and did not have to specify this in part 3. The parents disagreed and appealed to the Secretary of State and then the divisional court, which upheld their appeal. The Secretary of State appealed to the Court of Appeal, and lost.

The Court of Appeal stated:

“A child has special educational needs if he has a learning difficulty which requires special educational provision. Of course a child may have more than one learning difficulty. If the special educational provision which the child requires for all his needs can be determined, and provided, by his ordinary school, then no Statement is necessary. But once the local education authority has decided that it is required to determine that some special educational provision is provided for him, it has to maintain a Statement for him under section 7 in respect of that child, not in respect of any particular learning difficulty that he may have. Then the Statement must specify in part 2 the authority’s assessment of the special educational needs of the child ... and in part 3 the special educational provision to be made for the purpose of meeting those needs ...The local education authority is obliged to determine the special educational provision that should be made for the child in respect of each and every educational need identified in the Statement ... the duty of the authority is then to arrange that the special educational provision specified in the Statement is made for the child. It may be that in some cases, or in relation to some particular needs, it will not be possible for the authority to fulfil that duty without itself providing the requisite special educational provision. But where the authority takes the view that the school is able to provide some part of the special educational provision which the child requires, then it will fulfil its duty by arranging that the school do so provide that part of the special educational provision.”

The judge commented that Part 2 of a Statement (Section B of a EHC plan) was like a doctor’s diagnosis of what was wrong with you, and Part 3 (Section F of a EHC plan) was like the prescription. Sometimes LAs write both Sections B & F like diagnoses – writing long lists of a child’s needs, but never getting around to saying what provision they intend to make to meet those needs.

Although this case was about Statements of SEN, the same principles will apply to the Sections B and F of an EHC plan which set out special educational needs and special educational provision. Paragraph 9.69 of the SEN and Disability Code of Practice specifically refers to and confirms the application of the principles in this case. Under Section F it says “Provision must be specified for each and every need specified in Section B”.

No case report is available online.

For more information, see our section on what an EHC plan should contain.