An Education, Health and Care (EHC) plan is a document which specifies a child or young person’s special educational needs, the outcomes sought for them, and the required special educational provision, together with relevant health and social care needs and provision (section 37 Children and Families Act 2014). 

The contents of an EHC plan must be specified and quantified. The Upper Tribunal has previously looked at how specific an EHC plan needs to be to meet the legal duty in the Children and Families Act 2014.

Worcestershire County Council v SE [2020] UKUT 217 (AAC) 

Case summary

The parents appealed to the SEND Tribunal about the school named in their child’s EHC plan. The plan named a mainstream school but the parent felt that their child should attend a dyslexia specialist school.

The SEND Tribunal agreed and ordered the local authority (LA) to amend the plan to name the dyslexia specialist school in Section I.

The SEND Tribunal added that the child should receive one hour of one-to-one speech and language therapy each week and specified this should be taught by staff with relevant qualifications and experience.

The LA disagreed and appealed to the Upper Tribunal, which reviewed existing case law on the level of specificity needed in an EHC plan.

The Upper Tribunal said that the decision made by the SEND Tribunal was correct - it could order the amendments to name the specified provision and decide that the child was not progressing adequately in a mainstream setting. 

How specific an EHC plan needs to be depends on all the individual facts in a case. An EHC plan should be a realistic and practical document, which helps (rather than hinders) a child or young person.

Factors affecting how specific an EHC plan needs to be include: 

• all the circumstances of the case (a more complex case may require more specificity and detail)
• whether a degree of flexibility is needed to meet the child’s needs, considering all the facts, and
• the setting to be attended (or if it’s not appropriate for the provision to be made in a setting).  For example, where provision is being made at a special school or college, it may allow more flexibility than where it is being made in a mainstream school, depending on the individual circumstances.

The full decision for Worcestershire County Council v SE [2020] UKUT 217 (AAC) is available online.

London Borough of Redbridge v HO (SEN) [2020] UKUT 323 (AAC)  

Case summary 

In this case the SEND Tribunal decided that the child needed extracurricular support for one hour a week to be provided at home from a trusted and familiar psychologist and ordered changes to the child’s EHC plan.

On appeal, the Upper Tribunal said this lacked specificity. The changes were too vague and uncertain, and the order was not supported by expert or professional advice. 

Following on from Worcestershire v SE above, this case confirmed that where detail can reasonably be provided in an EHC plan, it should be. Even where there is a need for flexibility (to meet the child or young person’s needs) in an EHC plan, the duty remains on LAs to specify.  

When deciding how specific a particular EHC plan needs to be, as well as looking at all the principles in Worcestershire v SE, the following also apply:  

• The EHC plan must give the LA a clear picture of what it is required to provide. 
• The EHC plan is a free-standing legal document setting out the LA’s duties. The parent or young person has the right to rely on what the plan says, so it needs to be clear.
• The type of provision ordered by the SEND Tribunal will usually indicate the necessary level of detail. Often, the professionals involved will provide the details of the provision they consider necessary.
• More detail may be needed if the child is to attend a mainstream school, where staff may have less expertise than in special schools.   
• The SEND Tribunal may look at what is sensible and provide a method for how a particular type of provision is to be made. 

The full decision for London Borough of Redbridge v HO (SEN) [2020] UKUT 323 (AAC) is available online.

What do these cases mean?

These decisions do not change the need for provision to be detailed, specific and (normally) quantified as set out in the SEND Code of Practice (paragraph 9.69).

For example, LAs may still need to specify in Section F of an EHC plan:

• hours per week
• what the provision is
• if a qualified professional needs to deliver it
• how often it is to take place, and
• whether 1:1 or in a group of a particular size is required.

If you are preparing to appeal to the SEND Tribunal regarding provision in an EHC plan, you will need to show that: 

1. a certain type of provision is needed, and
2. a particular level of specificity or detail is necessary. 

If professional reports and evidence don’t clearly state your child or young person’s needs and the specific provision required to meet them, you should ask the relevant professional to clarify this.  

You can also use these cases to argue against vague wording proposed by your LA, where the LA cannot show flexibility is required as a result of your child’s needs.