R v The Secretary of State for Education and Science, ex parte E [1992] 1 FLR 377 CA

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 specified only provision to meet the literacy problems in part 3. The local authority’s explanation was that as the numeracy difficulties were not serious enough for them to have to make any provision (i.e. they could be met from the school’s own resources), they did not have to specify this provision 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 final judgement included these rulings:

“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 have decided that they are required to determine that some special educational provision is provided for him, they have 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 themselves providing the requisite special educational provision. But where the authority take the view that the school is able to provide some part of the special educational provision which the child requires, then they will fulfil their duty by arranging that the school do so provide that part of the special educational provision.”

The Ex parte E judgement means that part 2 of a statement should not be worded vaguely, like this: ‘Jenny has a variety of special educational needs, as revealed by her assessment’.

Also, part 3 of a statement should not be written like this: ‘Jenny should receive the help appropriate to her needs’.

If your child’s statement does not spell out each of his or her special educational needs in part 2, or if it doesn’t describe provision to meet each of those needs in part 3, you should challenge it on the grounds that it is contrary to the judgement in Ex parte E.

This case was about statements of SEN and will remain relevant for the many children with SEN who will still have statements during the transition period.  The same principles will also apply to the sections of an EHC plan which set out special educational needs and special educational provision (Sections B and F). Paragraph 9.69 of the SEN and Disability Code of Practice 2014 specifically refers to and confirms the application of the Ex Parte E principles. For example under Section F, it says  “Provision must be specified for each and every need specified in Section B”. This is a principle which comes directly from this case.

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