B-M and B-M v Oxfordshire County Council (SEN) [2018] UKUT 35 (AAC)

The recent case of B-M and B-M v Oxfordshire County Council provides some much-welcomed clarity in relation the specificity that should appear in section F of an Education Health and Care plan (“EHCp”); section F contains the provision required to meet the child or young person’s Special Educational Needs (“SEN”) as identified in section B.

The decision can be found here

Background

The background will have a familiar ring to anyone involved in SEN. In summary, a young boy who had been diagnosed with autism, ADHD, a significant developmental coordination disorder and epilepsy was transferring from a mainstream primary school to secondary school and his parents had appealed the contents of sections B (SEN), F (provision) and I (placement) of his EHCp. His parents wanted him to attend an independent special whilst the local authority (“LA”) said he should attend a secondary foundation school, with a specially resourced provision (“SRP”) for students with special educational needs, in particular Autistic Spectrum Disorder. The appeal against section I was dismissed (unsuccessfully), but the Tribunal did make amendments to section’s B and F.

Upper Tribunal

The matter went to the Upper Tribunal (“UT”) and the issue that the UT Judge had to consider was whether the SEND Tribunal had been specific enough in relation to their amendments to section F.

The LA said that as the child was to attend an SRP, albeit it was in a mainstream school, the need for specificity was less as this was a specialist provision. The parents unsurprisingly disagreed; both parties citing what they believed to be relevant authorities.

In any event, the UT Judge did not get drawn into the specialist / specificity issue and  reminded that parties that the legal authorities do not suggest that, even for children in specialist provision, the requirement of specificity can be abandoned where detail could reasonably be provided.

We think that what is most useful about the decision are the following examples of provision in section F where UT Judge Rowley said more “detail could reasonably have been provided” (note [C] refers to the child in question, [P] refers to the parents and type in bold is our emphasis)

  • “[C] will have support from a Learning Support Assistant”. This fails to identify how much support he will have, or what training and experience the LSA should have. Given the complexity of C’s difficulties, this is important.
  • “[C] requires a programme to develop his social communication and social interaction skills delivered in 1:1 and small group settings with opportunities to practice (sic) new skills learnt throughout the day.” Ps rely on Upper Tribunal Judge Mitchell’s observation in JD v South Tyneside Council (SEN) [2016] UKUT 0009 (AAC) that “the bare provision for programmes tailored to needs add nothing”. In that case, as in this, while the required programme was described, its content was not specified at all. Further, the word “opportunities” is vague, meaningless and unenforceable.
  • “Daily opportunities with a teacher to improve self-esteem and develop a positive self through increased awareness of individual strengths and attributes and through achieving success in a variety of contexts”. This is not radically dis-similar from a provision which was struck down by Judge Mitchell in JD.
  • “[C] requires a structured programme to develop his motor planning coordination skills.” The points made under (b) above apply here.
  • [C] requires the equivalent 25 hours of support to be used flexibly across the school day to include individual, small group and whole class teaching to meet the outcomes described.” This, again, is vague and lacks the required specificity. For example, what is meant by “equivalent”? Who is to provide the support? “

Take Away

We suggest that this decision makes the following points that should be borne in mind by parents and LA’s when considering the issue of specificity in relation to section F:

  • UT Judge Rowley’s observation that legal authorities do not suggest that, even for children in specialist provision, the requirement of specificity can be abandoned where detail could reasonably be provided it must guide the drafting of an EHCp.
  • The commentary in relation to terminology in section F that is vague, unspecific and meaningless must not be ignored when drafting an EHCp. The use of the word “opportunities” was seen to be a particularly egregious example of vagueness.
  • His observations in relation to the teaching assistant that is to support the child is particularly important. His emphasis that:
  1. Quantity of support should be identified;
  2. What training the person should have, should be identified;
  3. What experience the person should have, should be identified.

The above will no doubt prove very useful.

Anna Kennedy Online
8th February 2018

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