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What goes into a Statement of Special Educational Needs?
At a time when special educational need provision is moving away from Statement of Special Educational Needs (SSEN) to Education Health and Care Plan (EHCP), you could be forgiven for thinking that SSENs were understood.
Unfortunately, they still are not fully understood. This is particularly highlighted by a new case, JD v South Tyneside Council.
What was this about?
This was an Upper Tribunal appeal.
The matter concerned a child, referred to as Edith. Edith’s parents had appealed to the Special Educational Needs and Disability Tribunal (SENDIST) about the content of Parts 2 and 3 of her SSEN. The SENDIST dismissed that appeal. Edith’s parents were unhappy with this decision and appeal to the Upper Tribunal.
The appeal to the Upper Tribunal was about three things:
- SENDIST had failed to explain its decision fully
- SENDIST had failed to Order adequately detailed provision in Part 3 of the SSEN
- SENDIST had made an error in law when describing Edith’s occupational therapy
SENDIST failed to explain its decision
There is an obligation on SENDIST (and all Courts and Tribunals) to make an Order which leaves the parties being able to understand why the Order was made. This does not require a detailed explanation of all decisions, but all decisions must be broadly explained.
In this case, SENDIST had decided that Edith’s parent’s views about the nature of her needs were wrong. The expert evidence did not agree with Edith’s parent’s views.
As a result, SENDIST did not agree to make amendment to Part 2 (description of need) of Edith’s SSEN. SENDIST also refused to make amendment to Part 3 (description of provision). Edith’s parents complained that the decision to not amend Part 3 was not fully explored.
The Upper Tribunal did not fully answer this point because SENDIST’s decision was set aside for other reasons. However, the Upper Tribunal did say that, in theory, as Part 3 is linked with Part 2, SENDIST may rule out amendments to Part 2 which, in turn, means the amendments in Part 3 would not be required. However, it also stated that it is better practice for SENDIST to give reasons for rejecting amendments to Parts 2 and 3.
SENDIST failed to make provision specific enough
This is a repeated issue in both SSENs and EHCPs. Many appeals focus heavily on the provision in an SSEN or EHCP being insufficiently detailed.
Part 3 of Edith’s SSEN began with “it is recommended that the needs and objectives as previously outlined should be met by the following”. The Upper Tribunal concluded that this sentence, at the beginning of Part 3, was unlawful. The use of “recommended” implies that the provision following is not a requirement.
The Upper Tribunal found the following provisions to be too vague:
“individual programmes tailored to her needs. She will require a handwriting programme, a PE programme and a reading programme. These programmes can be provided on an individual basis or in a group situation as deemed appropriate by her school (SENCO)”
“access to multi-sensory teaching may be helpful using visual, auditory and kinaesthetic teaching”
“opportunities to encounter success in her work in order to increase her confidence and self-esteem”
The Upper Tribunal reiterated the relevant test for Part 3 of an SSEN which is “whether [the statement] is so specific and clear as to leave no room for doubt as to what has been decided and what is needed in the individual case”
SENDIST had made an error in law when describing Edith’s occupational therapy
This follows on well from an article we wrote last week about therapies. We explained in this article that if a therapy is in Part 3 of an SSEN, the responsibility for it lies with the local authority.
SENDIST, in this case, seems to have missed this point.
Edith’s parents challenged the entry, “an Occupational Therapy programme will be devised and implemented by Children’s Integrated Therapies, South Tyneside NHS Foundation Trust following any recommendations from the Royal Victoria Infirmary where [Edith] is due to be assessed”.
The issue with this provision is that it is included in Part 3 of Edith’s SSEN, but it strives to make the NHS responsible for the provision.
The Upper Tribunal has found, as a point of law, the NHS cannot be responsible for the provision in Part 3 of an SSEN. Therefore, this provision was found to be unlawful.
What does this mean?
This is a useful case. It helps to remind us what the test is for the level of specificity in a SSEN. It is likely that this test will also apply to EHCPs.
It is also a useful reminder that Part 2 informs Part 3 of a SSEN. Equally, Section B will inform Section F of an EHCP. Therefore, if a parent is looking to challenge Part 3 (of an SSEN) or Section F (of an EHCP), consideration of a challenge to Parts 2 and Section B, respectively, needs to be given.
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