When is it ‘necessary’ for a local authority to issue an Education, Health and Care Plan? Daniel Dartnell discusses the meaning of the term ‘necessary’ in the context of special educational needs law, analysing what the legislation, case law and code of practice tells us.

Upon completion of an education, health and care needs assessment, section 37 of the Children and Families Act 2014 states that a local authority must issue an Education, Health and Care plan (EHC plan) for the child or young person if, “it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan.” The key word here is necessary, a common word of everyday usage.

However, as we will explore within this article, the legal interpretation of this duty is far from straightforward. The Act does not rigidly define the word ‘necessary,’ leaving it open to interpretation. This offers local authorities a considerable degree of flexibility when deciding whether to issue an EHC plan. How one local authority decision-maker defines the word ‘necessary’ may differ from another, leading to inconsistent decision-making both within and between local authorities. Indeed, whether an EHC plan is issued for a child or young person will very often depend on how a decision-maker interprets the meaning of this seemingly straightforward, everyday word; ‘necessary’.

Within this article, I will clarify the definition of “necessary” and will demonstrate that this word needs some flexibility. However, local authorities should ensure that they are correctly considering each individual case when making a decision whether to issue an EHC plan.

The Code of Practice

As a starting point, the SEN Code of Practice 2015 is helpful to further define when it is ‘necessary’ for special educational provision to be made in accordance with an EHC plan. Paragraph 9.55 of the code states that when a child is not making progress, or progressing sufficiently well, the local authority should further consider the following two factors:

• Whether the special educational provision required to meet the child/young person’s needs can reasonably be provided from within the resources normally available to mainstream schools, or
• Whether it may be necessary for the local authority to make special educational provision in accordance with an EHC plan.

A local authority should consider the provision required by the child or young person, and whether this can be delivered via ordinary school resources, i.e. the school would not need an EHC plan to be able to implement the provision. This may be the case, for example, if any provision required by the child can be arranged and delivered without the requirement for additional funding.  Whilst this is certainly useful, and sheds further light on what a local authority should consider, paragraph 9.55 does not provide a definitive, final answer as to the meaning of the term ‘necessary’.

It is important to keep in mind that, firstly, the Code of Practice does not confer a statutory duty upon the local authority, it is merely guidance that is used to help a local authority interpret its statutory duties. Ultimately, a local authority’s duty comes from statute itself, not the statutory guidance. Secondly, despite being guidance designed to help interpret the Children and Families Act 2014, the Code does not provide a definition of the term ‘necessary’, either. Indeed, the second point noted above simply restates the legal test as outlined in section 37 of the Act, offering no further insight into how this should be interpreted. Accordingly, we will need to look to the case law to better understand the definition of ‘necessary’.

The Case Law

Although applying to the old regime of ‘Statements of Special Educational Needs’, the Upper Tribunal decision of Buckinghamshire CC v HW [2013] UKUT 0470 (AAC) is a key starting point in seeking to provide a legal definition of the word ‘necessary’. Within this decision, Tribunal Judge Jacobs acknowledged that defining the word ‘necessary’ can, “…give rise to a host of problems of interpretation and application”. Judge Jacobs went on to state, “Necessary sets a standard that is somewhere between indispensable and useful or reasonable. I am not going to define it more precisely. It is a word in general usage, and it is that usage that the tribunal must apply”. From this decision it is clear that the term ‘necessary’ within the context of the Act is to retain its everyday definition and should not be rigidly defined but should have a degree of flexibility.

Further confirming the flexible definition of ‘necessary’, within the case of Hertfordshire County Council v MC and KC [2016] UKUT 385 (AAC), it was held that, “…what is necessary is a matter to be deduced rather than defined. Its determination will vary according to the circumstances of a particular case and may well involve a considerable degree of judgment.” It is therefore apparent that there should be flexibility within the definition of ‘necessary’, rather than the application of a narrowly defined, singular meaning to every case. Local authorities should consider each case on its own merits. So which factors should be considered by a local authority in considering a whether an EHC plan is necessary, and thereby should be issued?

In the case of JP v Sefton MBC [2017] UKUT 0364 (AAC), it was held that when considering whether to issue an EHC plan, a local authority must ask itself a two-part question: 1) can the child’s special educational needs be met through provision ordinarily available to a mainstream school and, 2) will they actually be met? CB v Birmingham City Council UKUT 13 (AAC) clarified this two-stage test further. Upper Tribunal Judge Lane held that, “…there is a clear, albeit rough and ready resource line to be crossed before an EHC plan is considered to be necessary. It is based on the kinds of provision a school could make from its own notional SEN budget.” Therefore, a local authority must consider the individual facts of a case, with particular focus upon the kind of support that a school can provide within their ordinary resources and importantly, whether this support will actually be sufficient to ensure the child’s needs are met. If a local authority is not confident that the child’s needs can be met within ordinarily available school resources, for example they need input from a specialist teacher or direct speech and language therapy, then an EHC Plan is ‘necessary’ and should be issued.

Conclusion

The definition of the term ‘necessary’ is not straightforward and has indeed been subject to much interpretive debate within case law over the past decade or so. Whilst it may seem ‘simpler’ for this statutory term to have a narrow, clear-cut definition, which can be easily applied across each child’s case, and it may be tempting to call for such narrow definition, it is clear from the case law that this is not the intention of the legislation.

Section 19 of the Children and Families 2014 imposes a duty upon local authorities to have regard to the need to support a child and their parents or a young person to achieve the best possible educational and other outcomes. Local authorities therefore have a duty to consider each child as an individual and ensure that each child is supported with their unique profile of needs so that they can reach their potential. It therefore follows that a strict legal test which can easily be applied across all cases without thorough consideration of the individual of each child’s cases would not be compatible with this duty. It is clear that the definition of ‘necessary’ has been left purposefully wide, to ensure that a local authority will have the scope to consider an individual case on its specific facts, before deciding whether to issue an EHC plan.

In particular, local authorities are to have consideration of the kind of provision available within the ordinary resources of a mainstream school and consider whether this both can and will be sufficient to meet a child’s needs. Ultimately, an EHC plan is a legal document which will ensure that a child receives the special educational provision that they need, if the support that a child needs can only be delivered in accordance with an EHC plan, then an EHC plan should be issued by the local authority. If a local authority decides that an EHC plan is not necessary for a child, they must be confident that the child’s needs will be sufficiently met via ordinary school resources.

If you have any questions in relation to this article, please contact the Geldards Education Team.