Having conducted an EHC assessment, the question that a local authority must ask itself when determining whether or not to secure an ECH plan is set out in section 37 of the Children and Families Act 2014 which provides:
(1) Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan—
(a) the local authority must secure that an EHC plan is prepared for the child or young person, and
(b) once an EHC plan has been prepared, it must maintain the plan.
An obvious question is what does “necessary” mean in this context? There is a body of case law with a respectable pedigree on this point, not least derived from the former section 324 of the Education Act 1996 the predecessor to the modern law. In the case of London Borough of Islington v LAO and another  EWHC 2297 (Admin)HH Judge Waksman QC sitting as a Deputy High Court judge observed:
5 It is common ground between the parties that the decision to make a statement is a very significant one for all parties, not least because the result will be that the local authority is then committed to providing those particular provisions which it has determined are required in the light of the child’s learning difficulties which may or may not require its funding. It comes 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 special 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) . Without a conclusion by the local authority that a statement is necessary, there is no duty to make one.
6 Section 324 therefore sets out the conditions which need to be met before the local authority is obliged to make a statement. Those words are in somewhat stark form. Unsurprisingly, further guidance is given. This is to be found in particular in the special educational needs Code of Practice . This deals not only with the making of statements, but other lesser responses on the spectrum which may be sufficient. However, as this case concerns exclusively the question of a statement, I can turn immediately to chapter 8 of the Code of Practice . Paragraph 8:1 reads thus:
“Once all the advice requested for the statutory assessment has been received, as described in Chapter Seven, the LEA must decide whether to draw up a statement. The LEA may decide that the degree of the child’s learning difficulty and the nature of the provision necessary to meet the child’s special educational needs is such as to require the LEA to determine the child’s special educational provision through a statement.”
Pausing there, it is obvious that there are two fundamental aspects to the exercise. The first is to consider the degree of the child’s learning difficulty, which of course will include an assessment of the child’s present progress or otherwise in relation to any treatment he has received so far and, secondly, what the special educational needs as a result of those difficulties are.
7 Paragraph 8:2 then reads thus:
“The LEA will make this decision when it considers that the special educational provision necessary to meet the child’s needs cannot reasonably be provided within the resources normally available to mainstream schools and early education settings in the area.”
Therefore, having determined first of all the learning difficulties and the present situation of the child, what particular needs it has then and therefore what provision is required, the final step in the analysis is to see whether those provisions are available in what I might paraphrase to be the “normal resources” available to the education authority. Hence the reference to availability in mainstream schools in the area.
8 The Code of Practice gives detailed guidance following paragraph 8:2. But Ms White for the education authority has submitted, this seems to me to be a most important provision.
9 Paragraphs 8.12 and 8.13 give some indication of the sort of factors to which the education authority will have regard and the sort of responses that it can make. So, for example, in paragraph 8:13 it is said that if a local education authority concludes that the child’s learning difficulties call for occasional or irregular advice, or access to a piece of equipment or minor alterations, it may feel that the school could reasonably be expected to make such provision from within its own resources through School Action Plus. Where the local education authority concludes that a change of placement may be indicated for the child, even if such a change involves moving from a mainstream school to a specialist resource at the same school, they should consider drawing up a statement. If, on the other hand, the local education authority conclude that the child’s learning difficulties require regular and frequent direct teaching, daily individual support, the regular involvement of non-educational agencies, the local education authority may conclude that the school could not reasonably be expected to make such provision from its own resources and the local education authority should formally identify in a statement the child’s needs and the full range of provision to be made available and the review arrangements that will be made. The local education authority’s conclusions will of course depend upon the precise circumstances of each case, taking into account arrangements for funding schools in the area.
10 So those are some of the factors at which the authority would look. Of course it would do so in the context, no doubt, of discussions and representations from the parents.
In the case of SC and MS v Worcestershire County Council  UKUT (AAC) Mr Mitchell sitting as a judge of the Upper Tribunal reformulated the test directing himself to earlier caselaw, to move attention away from a local authority’s particular or peculiar financial arrangements for the funding of special educational provision:
- In NC & DH His Honour Judge Pearl, sitting as a judge of the Upper Tribunal, was presented with the argument that there was an apparent tension between paragraph 8.2 of the Code (see paragraph 44 above) and paragraph 8.5 which states:
“Where extra resources are required to enable a school to make the provision specified in statements, the LEA can provide those resources directly from central provision, devolve them to schools on an earmarked basis or delegate them”.
- HHJ Pearl did not accept that there was, in fact, such a tension. The paragraphs of the Code deal with “two different scenarios”. Paragraph 8.2 indicates that, where the required provision can reasonably be provided within the resources normally available to mainstream schools, “then it will not be necessary to require a Statement”. Paragraph 8.5, on the other hand, deals with the case where a child already has a statement and identifies different funding options for delivering the provision specified in the statement.
- HHJ Pearl went on to hold, in paragraph 32 of his decision, that two questions must be addressed in applying section 324 (that is deciding whether an authority is required to make and maintain a statement):
(a) “The first question is whether the special educational provision identified as necessary for the child in the assessment carried out under section 323 is in fact available within the resources normally available to a mainstream school”;
(b) “The second question is, if so, can the school reasonably be expected to make such provision from within its resources”.
- While I do not disagree, I think perhaps a more practical route to the same destination is simply to ask whether, without a statement, the decision maker can be satisfied, to a reasonable degree of certainty, that the required educational provision will be delivered. In answering that question, regard should be had to the legal consequences of a statement as described in paragraph 40 above.
- The advantages of this approach, in my view, include the following. In some cases it will reduce the likelihood of the Tribunal having to spend valuable time dealing with detailed evidence about local school financing arrangements. Evidence about funding is not necessarily required in order for a tribunal properly to conclude that the required educational provision will be delivered. It also simplifies matters where, as here, the child in question does not attend a maintained school.
The SEND Code of Practice states:
9.54 In deciding whether to make special educational provision in accordance with an EHC plan, the local authority should consider all the information gathered during the EHC needs assessment and set it alongside that available to the local authority prior to the assessment. Local authorities should consider both the child or young person’s SEN and the special educational provision made for the child or young person and whether:
- the information from the EHC needs assessment confirms the information available on the nature and extent of the child or young person’s SEN prior to the EHC needs assessment, and whether
- the special educational provision made prior to the EHC needs assessment was well matched to the SEN of the child or young person
9.55 Where, despite appropriate assessment and provision, the child or young person is not progressing, or not progressing sufficiently well, the local authority should consider what further provision may be needed. The local authority should take into account:
- whether the special educational provision required to meet the child or young person’s needs can reasonably be provided from within the resources normally available to mainstream early years providers, schools and post-16 institutions, or
- whether it may be necessary for the local authority to make special educational provision in accordance with an EHC plan
9.56 Where a local authority carries out an EHC needs assessment for a child or young person and
- their circumstances have changed significantly, or
- the child or young person has recently been placed in a new setting, or
- their special educational needs were identified shortly before the EHC needs assessment,
and no comparable special educational provision was being made for the child or young person prior to the EHC needs assessment, then the local authority should consider what new special educational provision is needed, taking into account the points in 9.55 above.