EHCP Format

The place to look for special educational provision [SEP] is section F of the EHCP. If the provision is not specified and quantified then it will not be enforceable. Special educational provision in section F can include health and social care provision as long as the provision "educates or trains" the child/young person. Health needs relating to SEN will be set out in section C of the EHCP and social care needs relating to SEN will be set out in section
For provision to be included in section F, there must be corresponding needs identified in sections B, C and D. It is no good just having information about needs in Section A because this is not statutory. Evidence to substantiate any special needs listed in sections B, C and D will derive from reports, information and advice contained in section K. The relevant law can be found in the Children and Families Act 2014; the Special Educational Needs Regulations, the SEN Personal Budget Regulations (+ amendments); the 2015 SEND Code of Practice.

SEN Regulation 6. (1) says "Where the local authority secures an EHC needs assessment for a child or young person, it must seek the following advice and information, on the needs of the child or young person, and what provision may be required to meet such needs and the outcomes that are intended to be achieved by the child or young person receiving that provision"
SEN Regulation 6. (4) says "the local authority must not seek any of the advice referred to in paragraphs (1)(b) to (h) if such advice has previously been provided for any purpose and the person providing that advice, the local authority and the child’s parent or the young person are satisfied that it is sufficient for the purposes of an EHC needs assessment.

In other words, if the family does NOT agree that the authority's existing reports are fit for purpose (because eg they do not include sufficient detail about the child or young person's needs AND/OR do not provide advice about outcomes + strategies for achieving outcomes) then the authority does have a duty to seek advice which IS appropriate to an EHC needs assessment, although enforcing the duty is not straightforward. The issue is not whether the professionals' advice is "recent" but whether it contains the necessary forward-looking information set out in Regulation 6. (1) in terms of needs; provision required to meet needs; and outcomes

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Section A

Views, interests and aspirations of the child and his parents or the young person (Reference = Regulation 12 (1)) Paragraph 9.65 SEND Code of Practice 2015 says "long-term aspirations are not outcomes in themselves – aspirations must be specified in Section A of the EHC plan. A local authority cannot be held accountable for the aspirations of a child or young person" Paragraph 9.69 SEND Code of Practice 2015 says "for children and young people preparing for the transition to adulthood, the outcomes that will prepare them well for adulthood and are clearly linked to the achievement of the aspirations in section A.". In other words, section A can set the scene but the actual "outcomes" must be in section E.

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Section B

Child or young person’s special educational needs (Reference = Regulation 12 (1)) Section B is statutory, unlike Section A. Provision in Section F should flow from the identified needs in B.

"(1) A child or young person has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her.
(2) A child of compulsory school age or a young person has a learning difficulty or disability if he or she—
(a) has a significantly greater difficulty in learning than the majority of others of the same age, or
(b) has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions."
Section 20 Children and Families Act 2014

Paragraph 9.69 SEND Code of Practice 2015 says "all of the child or young person’s identified special educational needs must be specified. SEN may include needs for health and social care provision that are treated as special educational provision because they educate or train the child or young person (see paragraphs 9.73 onwards)" This part also says "provision must be specified for each and every need specified in section B. It should be clear how the provision will support achievement of the outcomes". Paragraphs 6.28 - 6.35 SEND Code of Practice 2015 have the following "broad areas of need" carried over from the 2001 Code of Practice which are often reproduced in EHC plan templates.

• Communication and interaction
• Cognition and learning
• Social, emotional and mental health difficulties
• Sensory and/or physical needs

Paragraphs 6.27 SEND Code of Practice 2015 says "these four broad areas give an overview of the range of needs that should be planned for. The purpose of identification is to work out what action the school needs to take, not to fit a pupil into a category. In practice, individual children or young people often have needs that cut across all these areas and their needs may change over time. For instance speech, language and communication needs can also be a feature of a number of other areas of SEN, and children and young people with an Autistic Spectrum Disorder (ASD) may have needs across all areas, including particular sensory requirements. A detailed assessment of need should ensure that the full range of an individual’s needs is identified, not simply the primary need.

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Section C

Child or young person’s health care needs which relate to their special educational needs (Reference = Regulation 12 (1))

Health needs relating to SEN listed in section C should have corresponding provision in section F. If provision is listed in section F it is ultimately the responsibility of the local authority to make sure it is delivered. Families can go to the SEN tribunal over special educational provision in section F. It is also possible to go to tribunal over social care and health (formerly called the National Trial, as of September 2021 termed "extended powers") but health (and care)recommendations from the tribunal are not binding in the same way. "Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision)" Section 21 (5) Children and Families Act 2014.

"Decisions about whether health care provision or social care provision should be treated as special educational provision must be made on an individual basis. Speech and language therapy and other therapy provision can be regarded as either education or health care provision, or both. It could therefore be included in an EHC plan as either educational or health provision. However, since communication is so fundamental in education, addressing speech and language impairment should normally be recorded as special educational provision unless there are exceptional reasons for not doing so." Paragraph 9.74 SEND Code of Practice 2015
"Speech and language therapy is usually recorded as education provision in section F of EHC plans (see paragraph 9.74 for further information) and where it is, it must be arranged by the local authority" Paragraph 10.126 SEND Code of Practice 2015

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Section D

Child or young person’s social care needs which relate to their special educational needs or to a disability (Reference = Regulation 12 (1))

Social care needs relating to SEN listed in section D should have corresponding provision in section F. If provision is listed in section F it is ultimately the responsibility of the local authority to make sure it is delivered. "Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision) Section 21 (5) Children and Families Act 2014.

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Section E

Outcomes sought for him or her (Reference = Regulation 12 (1))

The special educational provision set out in section F should support the child or young person to achieve the outcomes set out in section E and be backed up by advice in section K. Paragraph 9.66 SEND Code of Practice 2015 says "an outcome can be defined as the benefit or difference made to an individual as a result of an intervention... When an outcome is focused on education or training, it will describe what the expected benefit will be to the individual as a result of the educational or training intervention provided". For home educators, there is an important distinction in the new Code between "outcomes" and "targets". EHCP "outcomes" are medium to long term, whereas targets are more short term, and - crucially for home educators - targets are set "at the level of the school or other institution where the child is placed" (see paragraph 9.6 SEND Code of Practice 2015). In other words targets are not applicable in the home. More on Section E in Home Educating With EHCP new page February 2023

Paragraph 9.68 SEND Code of Practice 2015 says "outcomes will usually set out what needs to be achieved by the end of a phase or stage of education in order to enable the child or young person to progress successfully to the next phase or stage. From Year 9 onwards, the nature of the outcomes will reflect the need to ensure young people are preparing for adulthood. In all cases, EHC plans must specify the special educational provision required to meet each of the child or young person’s special educational needs. The provision should enable the outcomes to be achieved."

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Section F

Special educational provision required by the child or young person (Reference = Regulation 12 (1))

For provision to be included in section F, there must be corresponding needs identified in sections B, C and D. "Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision) Section 21 (5) Children and Families Act 2014. Section 21 Children and Families Act 2014 says "Special educational provision" ... means educational or training provision that is additional to, or different from, that made generally for others of the same age in— (a)mainstream schools in England, (b)maintained nursery schools in England, (c)mainstream post-16 institutions in England, or (d)places in England at which relevant early years education is provided."
The significance of provision being listed in section F rather than elsewhere in the EHCP is that ONLY educational provision is enforceable. It should be specified and quantified

Parents have no duty to deliver the special educational provision set out in Section F and an EHCP which puts this obligation on parents is not valid in law. Consent is required. See relevant case law here (DM and KC v Essex 2003). More on Section F in Home Educating With EHCP new page February 2023

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Section G

Health care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having special educational needs (Reference = Regulation 12 (1)

SEN Regulation 12 (2) says "The health care provision specified in the EHC Plan in accordance with paragraph (1)(g) must be agreed by the responsible commissioning body" "any health care provision reasonably required by the learning difficulties and disabilities which result in him or her having special educational needs" Section 37 (2) (d) Children and Families Act 2014.

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Sections H1 and H2

H1 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 (Reference = Regulation 12 (1))
H2 Any other social care provision reasonably required by the learning difficulties or disabilities which result in the young person having special educational needs (Reference = Regulation 12 (1)) "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) (ie Chronically Sick and Disabled Persons Act 1970)" Section 37 (2) (f) Children and Families Act 2014. Paragraph 8.70 SEND Code of Practice 2015 says "local authorities must set out in section H2 of the EHC plan any adult care and support that is reasonably required by the young person’s learning difficulties or disabilities. For those over 18, this will be those elements of their statutory care and support plan that are directly related to their learning difficulties or disabilities."

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Section I

Placement. The only permissible contents of Section I are the name of the school, maintained nursery school, post-16 institution or other institution to be attended by the child or young person and the type of that institution or, where the name of a school or other institution is not specified in the EHC plan, the type of school or other institution to be attended by the child or young person. (Reference = Regulation 12 (1))

Derbyshire County Council v EM and DM established that it is not always necessary to name a school or type of school if there is no school to be attended and where Section I may be left blank. Subsequent case law in 2021 NN v Cheshire East set out the EOTAS-type scenarios where Section I must be left blank. The new SEN Code envisages two different types of "home education." One option - set out in 10.32 - is where parents take responsibility for making provision, with no help from the LA, which is what home educators would usually understand as elective home education. The other possibility - set out in 10.31- is where the local authority agrees the arrangements and takes responsibility for funding the provision ie EOTAS. See https://edyourself.org/articles/newcode.php. More on Section I in Home Educating With EHCP new page February 2023

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Section J

Where any special educational provision is to be secured by a direct payment, the special educational needs and outcomes to be met by the direct payment (Reference = Regulation 12 (1))

Reference for direct payments can be found in section 49 of the Children and Families Act 2014; SEN Personal Budget Regulations (The Special Educational Needs (Personal Budgets) Regulations 2014) AS AMENDED BY The Special Educational Needs (Miscellaneous Amendments) Regulations 2014 No. 2096. See also Home Education Direct Payments

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Section K

Appendix - Advice and information obtained in accordance with regulation 6(1) (Reference = Regulation 12 (1))

"6.—(1) Where the local authority secures an EHC needs assessment for a child or young person, it must seek the following advice and information, on the needs of the child or young person, and what provision may be required to meet such needs and the outcomes that are intended to be achieved by the child or young person receiving that provision—
(a) advice and information from the child’s parent or the young person;
(b) educational advice and information—
(i) from the head teacher or principal of the school or post-16 or other institution that the child or young person is attending, or
(ii) where this is not available, from a person who the local authority is satisfied has experience of teaching children or young people with special educational needs, or knowledge of the differing provision which may be called for in different cases to meet those needs, or
(iii) if the child or young person is not currently attending a school or post-16 or other institution and advice cannot be obtained under sub-paragraph (ii), from a person responsible for educational provision for the child or young person, and
(iv) if any parent of the child or young person is a serving member of Her Majesty’s armed forces, also from the Secretary of State for Defence;
(c) medical advice and information from a health care professional identified by the responsible commissioning body;
(d) psychological advice and information from an educational psychologist;
(e) advice and information in relation to social care;
(f) advice and information from any other person the local authority thinks is appropriate;
(g) where the child or young person is in or beyond year 9, advice and information in relation to provision to assist the child or young person in preparation for adulthood and independent living; and
(h) advice and information from any person the child’s parent or young person reasonably requests that the local authority seek advice from ...
(4) The local authority must not seek any of the advice referred to in paragraphs (1)(b) to (h) if such advice has previously been provided for any purpose and the person providing that advice, the local authority and the child’s parent or the young person are satisfied that it is sufficient for the purposes of an EHC needs assessment." [my emphasis] Regulation 6