Legal references for this page: the Children and Families Act 2014 Part 3; the Education Act 1996; the SEND Regulations 2014; the SEND Code of Practice; the Pupil Registration Regulations 2006 as amended; case law established via the Upper Tribunal or Judicial Review which is linked directly in the text; government Home Education Guidance for Local Authorities
Special Educational Provision in Section F
An EHCP or Education Health and Care Plan is for children and young people with special educational needs and disabilities, sometimes shortened as SEND, who require special educational provision.
Special educational provision is defined as “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.” [Children and Families Act 2014 section 21]
Not all children with special needs will require special educational provision because some needs and disabilities can be accommodated in schools without an EHCP.
The law considers two different things in deciding whether special educational provision is required and either may mean that an EHCP needs to be made. 1 If the child “has a significantly greater difficulty in learning than the majority of others of the same age”. 2 If the child “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.” [Children and Families Act s20]
Once it has been determined that special educational provision is required and an EHC Plan is made which specifies this provision, then the local authority “must secure the specified special educational provision for the child or young person”. [Children and Families Act s42]
Special educational provision is set out in Section F of the EHCP. Section F may include details of different teaching methods; adaptations to the curriculum; additional learning or mentoring sessions; 1 to 1 assistance or supervision; therapies such speech therapy; or particular equipment which is to be provided. In addition Section F may specify a particular environment for learning such as small groups or access to a quiet space.
Local authorities generally secure the provision in Section F by naming a school or college which the child will attend, but the ultimate responsibility rests with the local authority which is why the Ombudsman will look at complaints against local authorities when the special educational provision has not been delivered.
When parents home educate they are deemed to have opted out by making their own arrangements and as stated in Paragraph 10.32 of the SEND Code of Practice “the local authority is not under a duty to make the special educational provision set out in the plan provided it is satisfied that the arrangements made by the parents are suitable.” Read my page on home education and the law here.
Sometimes there is a misunderstanding about special educational provision when a child with an EHCP is home educated but in fact it all fits together logically.
Section F may have column headings about who is to deliver elements of the provision for example a 1 to 1 teaching assistant, or a qualified therapist.
It is an established legal principle that parents cannot be required to deliver special educational provision and it follows from this that a Plan which says parents must deliver x or y is wrong in law. Parents are not to be equated with “providers”. This is affirmed in case law DM v Essex 2003 which says that a Plan cannot “impose a responsibility upon parents to participate in the delivery of the programme” and “if an obligation is placed upon the parents to implement procedures, then such an obligation is unlawful”.
References to school will remain in Section F when a child becomes home educated because Section F sets out the additional or different provision that would be required if the child were attending school. More about sections in the EHCP here.
Placement in Section I
Case law has established that home is not a setting or placement and must not be named in Section I because Section I is about where a child attends and a child does not “attend” their home. [Derbyshire v EM and DM 2019]
A child who comes out of school to be home educated is not changing providers or placement since parents cannot be required to deliver provision and home cannot be a placement. Instead, parents are deemed to be making their own arrangements.
Home education must not be “named” in Section I nor should Section I state that parents have made their own arrangements, because this would be an error in law. The SEND Regulations at Regulation 12 restrict what is allowed in Section I. This has been affirmed in case law. [NN v Cheshire East 2021]
At first sight there may appear to be a contradiction with Paragraph 10.32 of the SEND Code of Practice which says that the local authority “should amend the plan to name the type of school that would be suitable but state that parents have made their own arrangements under section 7 of the Education Act 1996.”
However, it can be seen that the Code does NOT say parents arrangements must be in Section I. Section I is the place where the type of school will be specified but any reference to parents making their own arrangements must be OUTSIDE Section I in order to conform with the SEND Regulations and with case law.
Deregistration
The process for removing a child from a school roll is covered by the Pupil Registration Regulations 2006 as amended. Deregistration from mainstream is set out in Regulation 8.(1) My page on taking a child out of school for home education is here.
The law does not permit a delay in deregistration from mainstream school and an EHCP being in place does not change this. It is wrong in law for a local authority to say the EHCP must be reviewed before a child can be removed from mainstream, as shown in this Ombudsman decision re Sandwell. The government decided in August 2023 that this would NOT be changed, read my news item here.
Consent IS required before a child can be removed from the roll of a special school as set out in Regulation 8. (2). My page on taking a child out of special school is here https://edyourself.org/taking-child-out-of-special-school/
Removing a pupil’s name from the school roll is a separate process from taking the name of the school off the EHCP. The contents of the school register come under the Pupil Registration Regulations while the contents of the EHCP are governed by special educational needs law.
The law does not require a review of the EHCP before the name of a school is removed from Section I. Regulation 28 says “If, at any time, a local authority proposes to amend an EHC plan, it shall proceed as if the proposed amendment were an amendment proposed after a review” ie there are strict timescales and appeal rights will be triggered.
The SEND Code of Practice explains deregistration at Paragraph 10.33 which states “Where a child or young person is a registered pupil and the parent decides to home educate, the parent must notify the school in writing that the child or young person is receiving education otherwise than at school and the school must then remove the pupil’s name from the admission register. If the school is a special school, the local authority must give consent for the child’s name to be removed, but this should not be a lengthy or complex process.”
The local authority may ask parents for information about how home education will cater for the child’s special needs but as the Code of Practice says “There is no provision in law for a ‘trial period of home education'”.
Annual Review
While an EHCP remains in force it must be reviewed at least once a year. It is the Plan itself that is being reviewed, not the home education. (See below re provision being unsuitable) The review will seek the views of parents and children and will look at progress towards the Outcomes of Section E to determine whether the Outcomes have been met and whether they remain appropriate.
The statutory timescales for review are set out in Regulations and also covered in the SEND Code of Practice. Deadlines within the review process have been confirmed in the High Court, see my page on R (L,M,and P) v Devon case law March 2022 here https://edyourself.org/12-week-deadline-to-amend-ehcp/. More about annual reviews here https://edyourself.org/ehcp-annual-review/
Short term targets in Section E do not apply in the home since home is not an institution or placement. Paragraph 9.69 of the SEND Code of Practice refers to “shorter term targets at the level of the school or other institution where the child or young person is placed.” It is inappropriate to set annual targets where a child is home educated.
It is entirely consistent that short term targets in Section E are not binding on parents since they are set at the level of the institution as a way of determining the effectiveness of the special educational provision, and as we have seen, parents cannot be made responsible for delivering special educational provision.
When Provision is Not Suitable
The law which applies to parents is section 7 of the Education Act 1996 which states that “The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable— (1) to his age, ability and aptitude, and (2) to any special educational needs he may have, either by regular attendance at school or otherwise.”
Therefore the same laws apply in respect of school attendance measures when a child has an EHCP as without an EHCP. As stated above, there is no provision in law for a trial period of home education, and hence the annual review cannot simply be used to terminate the home education where parents are not in agreement.
Government Home Education Guidance indicates the procedure to be followed. Paragraph 8.9 says “In some cases a local authority will conclude that the home education provision that is being made for a child with a EHC plan is not suitable. In such cases the procedure to be followed in s.437 of the Education Act 1996 is the same as for other children who are educated at home but are not receiving a suitable education, although the consideration of suitability may well be more complex and need to draw on a wider variety of information, for example educational psychologist reports. Furthermore, the naming of a school in the order must conform with the provisions of s.441. Parents who have withdrawn a child from a setting they regarded as unsatisfactory may co-operate more willingly with this process if the authority is willing to explore options which are different in nature from the previous setting.” My page on the guidance is here.
Code Of Practice and EHE Guidance
Both the SEND Code of Practice and Government Guidance on Elective Home Education give an overview of the position when a child with an EHCP is home educated. The SEND Code of Practice deals with elective home education in paragraphs 10.32 – 10.36 while Chapter 8 of the Home Education Guidance covers special educational needs in paragraphs 8.1 – 8.13. My page on the EHE guidance is here.