Section 21 of the Children and Families Act 2014 is concerned with special educational provision.
(1) “Special educational provision”, for a child aged two or more or a young person, means educational or training provision that is additional to, or different from, that made generally for others of the same age in—
(a) mainstream schools in England,
(b) maintained nursery schools in England,
(c) mainstream post-16 institutions in England, or
(d) places in England at which relevant early years education is provided.
(2) “Special educational provision”, for a child aged under two, means educational provision of any kind.
(3) “Health care provision” means the provision of health care services as part of the comprehensive health service in England continued under section 1(1) of the National Health Service Act 2006.
(4) “Social care provision” means the provision made by a local authority in the exercise of its social services functions.
(5) Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision).
(6) This section applies for the purposes of this Part.
Of particular note is section 21(5) which could be described as a deeming provision, taking provision which is ostensibly for the purposes of health care or social care, and labelling it as special educational provision. This has the dual purpose of ensuring that health care or social care that has an element of or direct relevance to special educational provision is treated as special educational provision.
This means in turn that it can be placed without linguistic strain in section F, that if it is section F, it must be provided by the local education authority, rather than the health or social care authorities, and failure to do so can be enforced by way of a mandatory Order in a judicial review.
It follows that it will invariably be in the interests of the child or young person to try to widen the scope of special educational provision as much as possible, whilst a local education authority might be less than sanguine about an expanded section F, which it will have to pay for.
A “diagnosis” having been made in section B, section F is the “prescription”. The SEND Code of Practice reflects the approach taken in the case law to the proper approach to prescribing and thus specifying (a key concept) the special educational provision which is to be provided to meet the identified special educational needs.
The Code states (at page 166):
- Provision 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; including where this support is secured through a Personal Budget.
- Provision must be specified for each and every need specified in section B. It should be clear how the provision will support achievement of the outcomes.
- Where health or social care provision educates or trains a child or young person, it must appear in this section (see paragraph 9.73).
- There should be clarity as to how advice and information gathered has informed the provision specified. Where the local authority has departed from that advice, they should say so and give reasons for it.
- In some cases flexibility will be required to meet the changing needs of the child or young person including flexibility in the use of a Personal Budget.
- The plan should specify:
- any appropriate facilities and equipment, staffing arrangements and curriculum
- any appropriate modifications to the application of the National Curriculum, where relevant.
- any appropriate exclusions from the application of the National Curriculum or the course being studied in a post 16 setting, in detail, and the provision which it is proposed to substitute for any such exclusions in order to maintain a balanced and broadly based curriculum.
- where residential accommodation is appropriate that fact
- where there is a Personal Budget, the outcomes to which it is intended to contribute (detail of the arrangements for a Personal Budget, including any direct payment, must be included in the plan and these should be set out in section J)
See paragraph 9.131 onwards for details of duties on the local authority to maintain the special educational provision in the EHC Plan.
The requirement that provision must be “specific” echoes through the case law. In the case of E v London Borough of Newham and the Special Educational Needs Tribunal  EWCA Civ 09 in the Court of Appeal the concept of specificity was discussed in these terms. The special educational provision was described as follows:
R should have access to a broad and balanced curriculum, including the National Curriculum differentiated to take account of his needs as identified in this statement. Within the National Curriculum, R should be involved in a carefully designed developmental programme that focuses on developing skills in small steps. The allocation of work within the curriculum and its differentiation remains the responsibility of qualified teachers.
R should attend the Authority’s provision for pupils with severe learning difficulties where a structured and individual learning programme will be designed and implemented with opportunities for individual work, small group work and whole class teaching. An agreed plan should be drawn up to ensure his successful return to full–time schooling, allowing him time to adjust to the mental and physical demands of the school day.
He should be supported within a ratio of 6 pupils to 3 adults (to include 1 teacher).
Teachers working with R should work to establish links into a mainstream school. During his time within the mainstream school he should receive full time support from a learning support assistant in addition to support normally available from SEN staff in the school.
The school is responsible for the development and implementation of the Individual Education Plan(“IEP”) with advice from other professionals. The school should ensure that the IEP is reviewed regularly, as part of an ongoing process and in accordance with the recommendations in the Code of Practice. Targets in the IEP should be measurable and time limited so that progress against the targets can be demonstrated and evaluated.
R should be encouraged to share in the recording process and in monitoring and evaluating his own performance. The school should ensure that R understands the agreed outcome of any intervention and how he can be a partner in working towards the agreed goals. Parents should also be involved with the development of the IEP.
R will receive teaching and monitoring on at least a weekly basis from the Newham Service for the Visually Impaired from a teacher who is trained and/or experienced in working with pupils with sensory impairment.
The complaint by the parents was summarised by the Court of Appeal as:
9 It can be seen that although broad guidelines are given in the statement much is left to be decided by others in the future. The parents complain of this and submit that there is no point in having a tribunal if it does not decide but instead leaves it to others to decide. The tribunal makes the point it can only act on the material before it and it did not have sufficient material to make a detailed prescription. To this the parents reply that the tribunal should have adjourned in order to obtain any further material which might be required. To this the tribunal ripostes that an adjournment was not asked for, that any further delay would have been harmful to the child and that any assessment was best done on the ground in the school rather than at the end of a long period of absence from school.
The Court of Appeal thus had to grapple with how “specific” the statement (under the old system) needed to be. It can be asserted that a similar approach can be taken to EHC Plans:
64 The following general considerations have weighed with us:
(i) At one extreme, a tribunal plainly cannot delegate its statutory duty to some other person or body, however well–qualified. Equally, the statutory duty will not be discharged if the description of the special educational provision which is to be made is framed in terms so vague and uncertain that one cannot discern from it what (if anything) the tribunal has decided in that respect.
(ii) At the other extreme, the statutory duty plainly cannot extend to requiring a tribunal to ‘specify’ (in the sense of identify or particularise) every last detail of the special educational provision to be made (indeed, Mr Wolfe accepted that in an appropriate case a tribunal may lay down minimum requirements.
(iii) Between those two extremes, the degree of flexibility which is appropriate in ‘specifying’ the special educational provision to be made in any particular case is essentially a matter for the tribunal, taking into account all relevant factors. In some cases, a high degree of flexibility may be appropriate, in others not.
(iv) In the particular circumstances of the instant case the tribunal was, in our judgment, fully entitled to conclude that the individual education plan referred to in part 3 of the statement be determined not by it but by the designated special school in conjunction with the therapists.
65 On the facts of the present case the end result seems eminently sensible – this is a case where the educational and non–educational needs of the child overlapped and were highly complex. The following factors specific to this case have weighed with us:
(i) The tribunal was dealing with a situation where the parents had reconciled themselves to the fact that a special school rather than a mainstream school was, for the time being, appropriate.
(ii) The reason for much of the argument on provision before the LEA and the tribunal was the parents’ desire that a mainstream school should be specified – in that context greater specificity might well be appropriate because staff had to be brought in, whereas in the context of a special school such staff were in principle available.
(iii) R had been out of school for a long time and it was important to get him back, yet the professional advice was out of date for reasons which could not primarily be laid at the door of the LEA.
(iv) There was in any event much to be said for flexibility and assessing both needs and provision in the school context.
(v) There were no conflicting assessments by experts – the parents had not themselves (probably for reasons with which we can sympathise) engaged any experts.
66 We have no doubt that it was in R’s best interest to act as the tribunal did. Neither the statute nor the case law suggests that there was any illegality in the present case. Indeed London Borough of Bromley v Special Educational Needs Tribunal and Others  ELR 260 indicates that there was not.
67 We therefore think that the judge was right and dismiss this appeal.
At the end of the day, framing special educational provision will be a matter of both substance and drafting skill, so that any specified provision does not fall foul of the requirement to be “specific”.