The Importance Of Detail – Does Your Child’s EHCP Meet The Grade?


The Simpson Millar Education Law team have always been aware of the importance of detail in Education, Health and Care Plans (EHCP) and Statements of Special Educational Needs (Statements).

Emma Davies, Education and Community Care Legal Executive, explains just what sort of detail an EHCP should contain, and what to do if it's not up to scratch.

Why Is The Detail Important?

This is an essential requirement of these legal documents, and if a high level of specification is not included it will not be clear what support a child or young person will receive when they attend school or college.

More importantly, your local authority has a duty to ensure that the support contained in an EHCP or Statement is arranged, and if it is not, it may be possible to force them to do so by way of a formal court action called Judicial Review. However, unless it is absolutely clear what provision the child or young person is entitled to, it will not be possible to take this action.

Sadly, while local authorities should be aware of these requirements, too often EHCPs and Statements are vague and contain little detail. As a result, children and young people are not receiving the support they need. Parents can appeal to the Special Educational Needs and Disability Tribunal against the educational contents of an EHCP or Statement, but even then, mistakes can sometimes be made by the tribunal.

What Can You Do If The Tribunal Makes A Mistake?

While there is no further right of appeal following a tribunal decision, if there is clear evidence that it does not comply with the legislation, it may be possible to make a challenge by way of an appeal to the Upper Tier Tribunal.

What Happened In Similar Cases?

In 2016 Simpson Millar successfully acted in such a case where we recognised that the tribunal failed to properly specify a Statement following an appeal (JD v South Tyneside Council (SEN) [2016]). The Upper Tier subsequently found in favour of the appeal, confirming that the Statement should indeed have included a higher level of detail and returned the matter to the tribunal for reconsideration.

A further case in relation to EHCPs has recently been considered by the Upper Tier Tribunal which confirms the conclusions made in the Simpson Millar ‘JD’ case (B-M and B-M v Oxfordshire County Council (SEN) [2018]). In the examples given by the Upper Tier, it was confirmed that the following wording would not be sufficient, stating that it was too vague:

‘[C] requires the equivalent 25 hours support to be used flexibly across the school day to include individual, small group and whole class teaching to meet the outcomes described.’

As additional support in class is common for children with special educational needs, this type of wording will be familiar to many parents. However, although on first reading it looks as though a high level of support will be received, as rightly identified by the Upper Tier Tribunal, this is not guaranteed as the sentence simply does not explain exactly what the child or young person will receive. Similarly, phrases common to EHCPs and Statements such as ‘Opportunities to’ or ‘will benefit from’ should not be used as they do not confirm that the child or young person will receive the provision they need.

How Can Simpson Millar Help?

If you are concerned that your child’s EHCP or Statement is vague or does not include the level of support they need, you can contact the Simpson Millar Education team who offer expert advice from ‘health checks’ to advise on the lawfulness of EHCPs and Statements, right through to full tribunal representation and consideration of decisions.

Call today using our freephone number or get in touch using our online enquiry form.

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