Parent Asks:

My daughter has just transferred from a statement of SEN to an EHCP. The wording for the provision of "a specialist teacher visiting termly" has been changed on the EHCP. The wording is now "a specialist teacher visiting when appropriate." Is there any case law I can use for this not to be changed? Have they broken the law or just acted underhand?

IPSEA Answers:

The Special Educational Needs and Disability Code of Practice: 0-25 years 2015 states in regard to the special educational provision in section F of the EHC plan 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, including where this support is obtained through a personal budget” (9.69).

Case law backs up the requirement of specificity.  In the 2016 case JD v South Tyneside UKUT 9 (AAC), the Upper Tribunal confirmed an earlier significant  judgement (L v Clarke & Somerset County Council [1998] ELR 129) in which the Judge found that the statement should be so specific and clear as to leave no room for doubt.  The South Tyneside case confirms that this remains applicable under the more recent Children and Families Act 2014.

So when the Local Authority changed the wording they have taken away the specificity and it is likely that the Tribunal would require the LA to amend the wording.  On the face of it, the Authority is indeed acting unlawfully.
If you have a draft Plan, then you should point out the legal requirement of specificity and ask your LA to reinstate the original wording.

However, if they won’t do this (or you already have a final EHC Plan) you can only challenge this wording by appeal to the Tribunal.  You have two months from the date the final Plan is issued (or one month from the date of receiving a mediation certificate – which ever is later) to do so.  You can contact IPSEA’s Tribunal Help Line for more advice on mediation and/or registering an appeal.