What should be in Section B (special educational needs)?

Section B should specify all of the child or young person’s SEN.

There is a lot of case law relating to the contents of EHC plans (case law is appeals previously decided by the courts, which must be followed by LAs and other tribunals). A lot of these cases were decided under the old SEN legal framework, and refer to statements of SEN (“Statements”), which have been replaced by EHC plans. However, they are still relevant because the duty to specify SEN is identical under the old and new systems. You can find more detail about the below cases on our case law page.

In R v The Secretary of State for Education and Science ex parte E [1992] 1 FLR 377, the Court of Appeal ruled that Part 2 of a Statement must set out all of a child’s special educational needs identified during an assessment. In addition, Part 3 of a Statement (what is now Section F of an EHC plan) must specify the provision required to meet each of the needs identified, whether that provision was to be made by the LA or by the child’s school.

What should be in Section F (special educational provision)?

Section F should contain special educational provision to meet all of the needs specified in Section B of the EHC Plan. The only relevant issue is whether the provision is required to meet the child’s needs (not whether resources or services are locally available). 

The provision set out in the EHC plan must be detailed and specific and should normally be quantified, for example, in terms of the type, hours and frequency of support and level of expertise (Paragraph 9.69 of the Code). It should be clear from reading section F of the EHC plan “who, what, when and how long” in relation to each element of special educational provision listed (EC v North East Lincolnshire LA [2015] UKUT 0648 (AAC)). Simply referring to a funding ‘band’, without further detail, is not specific enough.

If the words used in the plan are unclear or ‘woolly’, it is possible the special educational provision will not be delivered in the right quantity or by the right person. It is even possible it will not be provided at all.

Special educational provision is anything that ‘educates or trains’ a child or young person. This can include therapies provided by the health authorities or social care (section 21(5) of the Children and Families Act 2014). For example in relation to speech and language therapy, “since communication is so fundamental in education, addressing speech and language impairment should normally be recorded as special educational provision unless there are exceptional reasons for not doing so” (paragraph 9.74 of the Code). If it is included in Section F, it must be provided and the LA has the ultimate responsibility for ensuring that it is. (Note that a need for a therapy which educates or trains should be included in Section B, as it is an educational need, even if the therapy is ultimately provided by the NHS.)

This can include occupational therapy, physiotherapy and speech therapy (London Borough of Bromley and Special Educational Needs Tribunal and Others, QBD and CA (1999) ELR 260). Systems which teach a child or young person coping strategies, such as cognitive behavioural therapy and mindfulness, are training them to react in a certain way and so can also be special educational provision (DC & DC v Hertfordshire County Council (SEN) [2016] UKUT 0379 (AAC)).

You can find more detail about the above cases on our case law page.

Can anything be left for the school to decide?

No – the EHC plan should make it clear exactly what support the child or young person needs. It is not sufficient for the LA to leave it up to the school (C v Special Educational Needs Tribunal and London Borough of Greenwich [1999] ELR 5).

It is also not lawful for the LA to leave the provision open to variation – for example by including words such as “the level of provision is to be reviewed after one term”. This is because if the LA wants to change the level of provision, it should do so by amending the EHC plan in consultation with the parents or the young person (E v Rotherham MBC [2002] ELR 266, [2001] EWHC Admin 432 and N v North Tyneside Borough Council [2010] EWCA Civ 135).

 

If you haven’t been able to find the answer to your question on this page or in our EHC plan checklist, our FAQs on EHC needs assessments contain further information about what should be contained in an EHC plan.