Since 2014, following the creation of Education and Health and Care Plans (EHCP) there has been much discussion about the new “outcomes” section contained within an EHCP. In particular, the issue frequently arises as to whether provision is drawn from the Outcomes, or the young person’s special educational needs.
This has become particularly relevant as I have noticed in social media recently that there continues to be discussion about whether or not the provision contained in Section F of an EHCP is calculated by reference to need, contained within Section B of the plan, or outcomes, contained within Section E of the plan.
To recap the overall content of an EHCP, the regulations require that all EHCP’s contain the following information:
- Section A – Views and Aspirations
- Section B – Special Educational Needs
- Section C – Health Needs
- Section D – Social Care Needs
- Section E – Outcomes
- Section F – Special Educational Provision
- Section G – Health Care Provision
- Sections H1/H2 – Social Care Provision
- Section I – Placement
- Section K – Appendices and Advices.
The flow of an EHCP would suggest that the outcomes are informed by accumulation of the needs that have been identified in Sections B to D and that the provision, which immediately follows in Section F after the outcome Section, is informed with reference to the outcome.
This is also how a number of medical professionals will be used to calculating provision. A key tool used is often the identification of a particular need, calculation of an outcome that would be appropriate around that area of need and then formulating provision in order to establish what would be necessary in order for the young person to be able to achieve that outcome.
What this essentially means is that, for example, a young person might be identified has having a significant difficulty in reading. In particular, the young person might be said to be five years behind in their reading accuracy. An appropriate outcome might therefore be that within a year, the young person made two years’ worth of accelerated progress. That then assists the expert to established what kind of provision might be necessary in order to achieve that outcome.
Importantly, however, this is not how the legal framework within the Children and Families Act 2014 operates.
A review of the Children and Families Act 2014 indicates that the word “outcome” is not used once in the main section heads of the Act. Further, the statutory test for an EHCP does not particularly rely on references to outcomes. Instead, the test of necessity for an EHCP is whether or not the Special Educational provision required by a young person, by virtue of their need, is not reasonably likely to be made within a mainstream school from within its own resources. This is of course paraphrasing and this test has been modified multiple times by various elements of case law but that sentence gives a reasonably accurate broad indication of what the test for necessity is.
As such, the overarching statutory test for an EHCP does not particularly rely on any assessment of outcomes. If that is the case then it must be right to conclude that the assessment of Special Educational provision necessary for a young person is also not dependent on outcomes but simply rather need.
Further, an EHC Needs Assessment is set out within Regulation 6(1) of the Special Educational Needs and Disability Regulations 2014. That regulation states as follows:
“Where the Local Authority secures a 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 – “.
As such, therefore, the regulations detail the content of a Needs Assessment, which exist to identify the needs and provision, sets out the following workflow:
- Identify the young person’s Special Educational Needs.
- By virtue of those needs identify what the necessary Special Educational provision is.
- Formulate outcomes once the needs and the provision have been established.
The reason that this is important is that, at least in my experience, at meetings I have attended with Local Authorities and Tribunal hearings, there has been a requirement to establish the outcome before discussing provision. Indeed, many Local Authorities host meetings referred to as “outcome setting meetings” which have to be gone through before the Local Authority will consider what the provision is that will be included within the EHCP. This is entirely the wrong way round.
The process quite clearly is that a young person is identified as having Special Educational Needs and then the provision is established. Once the provision is then established, the outcomes that are specific, measurable, achievable, realistic and timebound can be calculated.
This is particularly important when it comes to issues such as establishing whether or not Special Educational provision is necessary or indeed the issues to do with a cease to maintain of an EHCP.
If the system were truly outcome led then a Local Authority could justifiably indicate that a young person has achieved all their outcomes and, therefore, need of a Special Educational provision nor the EHCP itself are necessary. This is not the right way of approaching the question.
In respect of working out both provision and whether or not an EHCP is needed, the core question is always what are the young person’s Special Educational Needs, not what outcome do we hope to achieve for a young person. It is this misdirected focus that is frequently leading Local Authorities to fail to identify the Special Educational provision that a young person needs but also, particularly for post-sixteen and post-nineteen young people, causing Local Authorities to make legally flawed decisions when deciding to cease to maintain an EHCP.
To be clear, the above assessment has also been fully agreed by the current SEND Lead Judge within the First Tier Tribunal. Indeed, she has gone so far as to suggest that the right way of looking at an EHCP would be Section B, Section, F and then Section E. Of course, this is not how the Department for Education has structured an EHCP, however, that listing has led people into a flawed understanding of how the process and system of SEND support actually works.
Going forward, whilst it is of course necessary to have a clear idea of what the outcomes are for a young person, in order that provision can be continually assessed, the outcomes themselves are not the core issue. The central point is always need which gives rise to the Special Educational provision and the EHCP itself. If ever decisions are being made purely on the basis of outcome rather than need then appeal is likely to be appropriate to the Special Educational Needs and Disability Tribunal.
If you or a young person you are supporting are having difficulties in relation to an EHCP and particularly a Local Authority making outcome led, rather than needs led, decisions then advice should be sought from our Special Educational Needs Solicitors on 0333 202 7175 or by email education@hcbgroup.com.
Ed Duff
Director