The duty to specify

Please read this along with our guidance on Checking an EHCP.


What is “Specificity” and what has to be specified?

In writing Education, Health and Care Plans (EHCPs), a local authority (LA) must by law ‘specify’ the support children and young people must receive. This means describing it in enough detail so that parents and young people, among others, can clearly tell what must be delivered, how often, how long for and who by – in other words there is a duty on the LA to specify the contents of EHCP.

Once such detail is set down, it enables the support to be enforced; parents and young people can tell when provision is inadequate or is not being delivered at all. If the provision sections are vague or omit things, the plan will not be any use.

In particular, what has to be specified in an EHCP is the provision which the plan contains – not only the special educational provision (SEP) but also health care and social care provision in the EHCP.

Remember that SEP is defined as educational provision or in the case of the Children and Families Act 2014, educational or training provision – which is “additional to or different from” that made generally for others of the same age in mainstream settings. This means that all the support which the child or young person is receiving which is additional or different has to be set out and specified.

The duty on an LA to specify is ‘statutory’ as it is required by section 37 of the Children and Families Act 2014 (“CAFA”), which states:

“an EHC plan is a plan specifying:
(a) the child’s or young person’s special educational needs;
(b) the outcomes sought for him or her;
(c) the special educational provision required by him or her;
(d) any health care provision reasonably required by the learning difficulties and disabilities which result in him or her having special educational needs;
(e) in the case of a child or a young person aged under 18, any social care provision which must be made for him or her by the local authority as a result of section 2 of the Chronically Sick and Disabled Persons Act 1970 (as it applies by virtue of section 28A of that Act);
(f) any social care provision reasonably required by the learning difficulties and disabilities which result in the child or young person having special educational needs, to the extent that the provision is not already specified in the plan under paragraph (e) …”

Regulation 12 of The Special Educational Needs and Disability Regulations 2014 requires the support needed to be set out in the following sections (we have used bold type to make it easier to see which is which):

(f) the special educational provision required by the child or young person (section F)
(g) any health care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having special educational needs (section G).
(h) (i) any social care provision which must be made for the child or young person as a result of section 2 of the Chronically Sick and Disabled Persons Act 1970 (section H1)
(ii) any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having special educational needs (section H2)

There is also statutory guidance in Code which tells LAs how to carry out these duties. This advises that in Section F, “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…”.

The Code omits ‘hours and frequency of support’ in Sections G, H1 and H2, the health and care provision sections, but as the guidance on Section F is paraphrasing case law on how to interpret the word ‘specifying’, and case law has required a very high level of detail in its interpretation of that word in the context of statements of SEN, it can be argued that the same detail is required in these sections.


Needs and Provision

This means that not only the child or young person’s special educational needs and special educational provision are required to be specified but also the outcomes, health care provision and social care provision included in an EHCP are required to be specified.

See our guidance on Checking a Plan.


Making EHCP specific

Having been through the evidence using the Checking a Plan guidance, you then need to answer the following:

  • Are all of the special educational needs referred to in the evidence detailed in Section B of the plan? If not go through adding in what is missing, keeping a note of where in the evidence the missing information is contained.
  • Then carry out the same exercise in relation to special educational provision. Is all of the special educational provision in Section F of the EHC plan? Is the special educational provision in the right section? (See guidance on the sections of a plan).
  • Then consider whether the outcomes are properly specified. Also check that social care needs or health care needs are properly described as well as social care provision and health care provision – remember though that provision which educates or trains is special educational provision, not health care provision.
  • Now go back and look for what we call the ‘weasel words’ – such as ‘access to’, ‘opportunities for’ or ‘up to’ as in ‘up to X hours’. These are meaningless and need to be removed and redrafted so that it is clear exactly what has been specified.

Guidance on Specificity

The SEND Code 2015 reflects the duty to specify:

“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…”

This part of the SEND Code 2015 also mentions that there should be clarity as to how advice and information has informed the provision specified and says “Where the local authority has departed from that advice, they should say so and give reasons for it”. This can be useful to refer to if the LA is ignoring evidence which has been collected by the parent or young person.

In relation to health care provision and social care provision, that provision should be detailed and specific and should normally be quantified which is not as strong as the language in relation to special educational provision but given that case law has identified what the word “specified” means in relation to statements it is arguable that health care provision and social care provision must also be specified in the same way as this reflects the underlying statutory duty.

The SEND Code of Practice, 2015 also states:

  • A clear distinction must be made between outcomes and provision
  • A range of outcomes over varying timescales, covering education, health and care as appropriate and
  • Steps towards meeting the outcomes.

Following these principles in relation to outcomes will help to make them the specific outcomes contemplated by section 37.

Of course, there may be circumstances where specificity is not possible or desirable but, generally speaking, this should be the exception rather than the rule. The reason why specificity is so important is so that everyone is clear as to what the child concerned is entitled to and ought to be receiving.

Needs and Provision – needs must be adequately described first

The sections dealing with provision depend on getting the needs sections right. The case law below is about statements but it is expected that these cases will be applicable to EHCP too because the wording and duties they examine remain almost the same:

Court of Appeal in R v Secretary of State for Education and Science Ex Parte E (1992) 1 FLR 277.

This case also established that all needs must be described, not just those which have given rise to the statement, but those which may be being catered for by the school/institution. The judges said:

“Whilst the authority can undoubtedly take the view that some part of the child’s special educational needs can be adequately provided by his ordinary school, once they (the authority) are bound to make and maintain a statement … that statement must … specify all the special educational provision to be made for the purpose of meeting those needs, whether provided by the authority or by the school … and with a degree of particularity sufficient to satisfy [the law on specificity].”

In A v Special Educational Needs & Disability Tribunal & Anor [2003] (25 November 2003) the court specifically considered the question of the order in which the parts of a statement should be written:

“In producing a statement ….it is the duty of a local education authority to decide first what are a child’s special educational needs within Part 2, secondly what special educational provision is necessary to meet those needs within Part 3 and thirdly to make an appropriate placement within Part 4. These questions have to be addressed in this order because it is only when a decision has been taken as to a child’s special educational needs that it is possible to decide what provision is required to meet them”.

This underlines the principles that needs have to considered first and it means that provision should not be placement specific, i.e. the question of placement should be considered after, and not before the special educational provision has been specified in the statement and the same will apply to an EHC plan.

Thus an EHC plan has to be developed by first setting out the details of the needs and then, from those needs, working out what special educational provision is required to meet those needs.