A look at the specificity question in EHCPs, how small is small?

It is well known that any education provision in an Education, Health and Care Plan (EHCP)

“must be so specific and clear as to leave no room for doubt as to what has been decided ”

(L v Clarke and Somerset CC  1998)

The SEND Code of Practice also states that

“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”

A recent Upper Tribunal (UT) case looked at how much detail is required when teaching is to take place in ‘small groups’. Does the level of specificity required in an EHCP mean that the EHCP must set out the number/maximum number of students in the group? After all, what is ‘small’? Does it mean a class of 15, 10, 8, 5 or 3? Would it be too prescriptive to require that level of specification? On the other hand, if ‘small’ is not defined, then there could be a situation where a student is taught in a ratio of 1 teacher to 15 students instead of, perhaps, 1 teacher to 3 students.

SB v Hereford County Council (SEN): [2018] UKUT 141 (AAC)

The appeal to the UT was brought on the lack of definition of ‘small’ in ‘small groups’. The First-tier Tribunal ordered ‘small groups’ into the EHCP but did not specify how small the groups should be. The UT found that this was not an error of law; whilst teaching groups had to be small, the size of the group did not need to be specified for the particular child’s special educational needs profile.

There was discussion about whether a small group is required for sensory reasons, for example, because the child cannot cope in a noisy/busy environment, or whether it is required because of the need for a high staff: pupil ratio. The latter could be provided in larger groups and the level of specificity should be the staff: pupil ration, not class size.

Our advice

Our advice is to establish why small class sizes are needed and, wherever possible, get supporting evidence. If the child needs small class sizes for:

  • sensory reasons -  then the size of the class or group should be specified
  • effective teaching – then the staff: pupil ratio should be specified.

 There was discussion in this case that the independent Educational Psychologist (EP) was critical of the lack of clarity around the meaning of ‘small’ in  ‘small groups’ in the LA’s EP report…but then did not go on to specify their own recommendation of ‘small groups’.

To read more about the requirement for specificity, read our article here.

Read the full decision in SB v Hereford County Council 2018 here.

If you discuss this or any similar problems with your child’s EHCP then please contact us at senexpertsolicitors@boyesturner.com  – our expert SEN solicitors are here to help.

I am so happy at the outcome, I don't think we would have had such a comprehensive service from any other law firm, and you took the worry away...I do not regret a single second of the whole process, apart from the bit before you got involved. 

James' mother, Boyes Turner client

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