Necessity and EHC Plans

One of the simpler exercises in SEN cases should be the consideration of whether it is “necessary” to make and maintain an EHC Plan pursuant to section 37 of the Children and Families Act 2014 after an assessment of a child’s SEN. The decision whether to do so or not, should logically be grounded on consideration of what a child’s SEN are, what SEP provision is being made in respect of those needs, and if there is a shortfall, whether an EHC Plan is required to ensure that appropriate SEP is made. However one must never underestimate the ability of lawyers to complicate what should be a simple matter of judgment.

In the case of CB v Birmingham City Council [2018] UKUT 13 (AAC) a number of strands of argument came together, with a recital of the exercise that a local authority must undertake and a consideration of what the ordinary English word “necessary” means in the context of section 37.

9 A Local Authority or Tribunal must find that it is necessary for special educational provision to be made for a child before EHC plan can be issued: section 37 of the CFA 2014. ‘Necessary’ is not defined in the CFA 2014, nor was it defined under the Education Act 1996 where the word was used for the same purpose. The case law on the meaning of that word under the Education Act 1996, however, remains relevant both for that reason and because section 83(7) of the CFA 2014 requires Part 3 on special educational needs to be read as if its provisions were contained in the Education Act 1996.

10 Upper Judge Jacobs pointed out in Buckinghamshire CC v HW, [2013] ELR 519, paragraph 16 (decided under the Education Act 1996) that ‘necessary’ has a spectrum of meanings, ‘somewhere between indispensable and useful’. It is a word in common usage, and it is that that a Tribunal must apply. Upper Tribunal Judge Mark considered the meaning of ‘necessary’ in Manchester CC v DW [2014] UKUT 168 (AAC), as did Judge Waksman QC in LB of Islington v LAO [2008] EWHC 2297 (Admin) and Upper Tribunal Judge Pearl in NC and DH2 v Leicestershire CC [2012] ELR 365. All three cases rightly refer to the guidance in the Code of Practice which elaborates on when a Statement of Special Educational Needs will be necessary. The Code is a matter to which the LA and tribunals must have regards, but it is not guidance only.

Judge Mark summarises the law in paragraphs [15] and [17] of the Manchester case.

15 ‘Further guidance as to when a statement is necessary is to be found in LB of Islington v LAO [2008] EWHC 2297 (Admin) and in NC and DH3 v Leicestershire CC [2012] ELR 365. In Islington v LAO, Judge Waksman QC stated at para.5 that a decision to make a statement came “at one end of a spectrum of need with which the local authority concerns itself. There are many children within the remit of a local authority who may have learning difficulties and require some form of educational provision, but this does not in and of itself mean that a statement will be required. Hence, of course, the word “necessary” in section 324(1).” He went on in paragraph 6 to describe the conditions in section 324 as being in somewhat stark form and to refer to the further guidance in the Code of Practice. He identified from the Code of Practice three steps that needed to be taken. The first was to ascertain the degree of the child’s learning difficulties and the special educational needs that resulted. The second was to determine what provision was required and the third was to determine whether that provision was available in what he paraphrased as the normal resources available to the education authority.

16 In NC and DH v Leicestershire CC, Upper Tribunal Judge Pearl held at paragraph 32 that two questions had to be addressed in determining whether it was necessary to issue a statement. The first was whether the provision identified as necessary for the child in the assessment was in fact available within the resources normally available to a mainstream school. If so, the second question was whether the school could ‘reasonably be expected to make such provision from within its own resources.’ ….

17. [Both] these cases were concerned with issues that involved consideration of the application of the guidance in the Code of Practice to the facts in those cases. I bear in mind that the Code of Practice is precisely what it is said to be – guidance to which the local authority and the tribunal must have regard. It does not affect the generality of section 324 so as to exclude any possibility that a statement may be necessary for some other reason than those indicated in the guidance. For example, if it was the case that a school or local authority, despite having the necessary resources, simply refused to use their best endeavours to provide the requisite special educational provision, a tribunal may well consider it necessary to direct a statement.

 10 Upper Tribunal Judge Mark makes the further point in Manchester City Council v JW [2014] UKUT 168 [14] that what is necessary may involve a value judgment

The decision also supports the interpretation that paragraph 9.55 is concerned with the provision of prospective SEP:

16 In my view, there is a clear, albeit rough and ready resource line to be crossed before an EHC plan is considered to be necessary. It is based on the kinds of provision a school could make from its own notional SEN budget.

17 It is also plain, in my view, that the provision the LA expects to make available as published in its local offer is a relevant consideration in working out what will, on balance, be available from a school’s internal resources. It is open to a parent who disbelieves the local offer to provide evidence showing that it does not represent what is expected to be available, or that a particular school will not be able to make the provision expected under the local offer. Neither may be easy for a parent to establish, not least because of the SEN budget available to each school. Of course, if such evidence were adduced, a tribunal would have to decide its weight.

24 The second part of the submission is that the tribunal had failed to show that each item of provision was available in any and all mainstream schools in the area. That submission cannot be correct. The first reason is that an ‘EHC needs assessment’ is defined under section 36(2) of the CFA 2014 as an assessment of the educational, healthcare and social care needs of a child (or young person) (section 36(2)). It does not determine the school the child should attend. The second point is that the guidance at paragraph 9.55 of the Code is couched in general terms: whether the required special educational provision …’ can reasonably be provided from within the resources normally available to mainstream …schools… ‘ (italics added). The use of the plural ‘schools’ points at consideration of schools in general in the local authority area. The assessment does not seek to identify any particular school. If there is ultimately a disagreement over the school a child is to attend, it is settled at a later stage.

Section 37 must be construed as one part of a complete statutory scheme set out in the Children and Families Act 2014 and the Special Educational Needs and Disability Regulations 2014 made under it. That statutory scheme contemplates that most children with SEN will receive SEP through their schools, without need for an EHC Plan. The question can be posed: what is the statutory purpose of section 37? The mischief that the section is meant to address, concerns those children with SEN who are not receiving appropriate SEP and who are not making sufficient progress.

Moreover the system incorporates a dynamic process, in that even children who are issued with an EHC Plan will have it and the SEP it specifies reviewed on an annual basis. In tandem with this process of review, children who are assessed and not issued with an EHC Plan, may be re-assessed after 6 months or when it becomes necessary to do so, foreseeing that their needs may change within a relatively short period of time and a plan may become necessary at a future point.

It follows that decisions as to what is “necessary” must be taken against this backdrop, and may serve to reinforce the conclusion that the word does have a degree of stringency to it, which goes beyond provision of an EHC Plan being simply reasonable or desirable.

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