The fundamental importance of specificity in EOTIS

That section of an EHCP sets out what special educational provision (provision additional to or different from standard mainstream educational provision) the child or young person in possession of the plan will receive.

There is a line of cases going back to a 1997 case, L v Clarke and Somerset [1998] ELR 129 about the need for wording in section F of an EHCP to be “so specific and so clear as to leave no room for doubt”, which was later codified into statutory guidance in the SEN Code of Practice (2015): “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…”.  

In this article, associate Douglas Hamer highlights the importance of Section F in an EHCP, explaining why its wording must be precise and detailed. 

The guidance does allow for there to be a level of flexibility (and case law before and after the guidance confirms there is a balance to be struck in some situations between flexibility of wording, allowing for a complex presentation or fluctuating needs/ability of the child or young person to access support, and certainty) but, by and large, it should be clear and unambiguous what the child or young person is to receive.

It should be noted that section F can include wording not just simply about interventions, such as a certain amount of speech and language therapy per week, or approaches, such as the child or young person will be seated where possible at the front of the class with unobstructed view of the teacher, but also about fundamental elements of the institution in which they will be educated.  This is often referred to as “placement-specific wording”, with examples such as a maximum class size, arousal levels of the school environment, specialist qualifications of teachers, integration of therapies and needs/abilities of peers, to name a few (it might be thought at first blush that such wording belongs in section I - the section of an EHCP into which the education institution and/or type of education institution that the child or young person will have a place at - but case law confirms that nothing other than the name and/or type should be included in that section).

As logically follows, from a practical standpoint, section F ends up boiling down to having two key functions:

1. providing the “menu” of special educational provision to which the child or young person is entitled (the more obvious function)
2. setting out a baseline for what kind of school the child or young person will attend

For the first function, per section 42(2) of the Children and Families Act 2014, this can be enforced against the local authority in the High Court by way of judicial review if it is not delivered.

As for the second function, this ends up being crucial in an appeal to the SEND tribunal about what education institution the child or young person should attend.  For example, if section F contains wording that states the child or young person will attend a school with class sizes of 10 or fewer, this will effectively bar a school with class sizes of 30 as a candidate.

Education otherwise than in a school (EOTIS) is the operation of section 61 of the Children and Families Act 2014, which states that where provision in section F of an EHCP cannot be provided in a school, post-16 institution or relevant early years provider, the local authority “may arrange” for it to be provided outside of such a setting, usually at the child or young person’s home or a local space such as a library or other council building (NB, although the section uses the word “may”, in practice this crystallises into a duty where no institution can deliver the section F provision; the “may” does not make it a pure discretion).

If part of the provision in section F can be provided in a school, and part outside of that school, then the school should be named in section I.  In a situation where EOTIS is anticipated to be provided as the only form of education the child or young person receives, section I of the EHCP is typically left blank (as EOTIS is really something of a “last resort” in the education system, and often reserved for pupils who have been demonstrated to be unable to attend an institution, in practice you often see children or young people receiving “exclusively” EOTIS).

The two functions outlined above that apply to section F of an EHCP when a child or young person attends a school or post-16 institution also apply in EOTIS cases, perhaps even more, although with a difference to the second function:

1. for the EOTIS element, as there is no school, there is no baseline framework of the institution to “add” provision to, the nature of the child or young person’s education will be based entirely on the wording of section F
2. the wording of section F dictates whether or not the child or young person will receive EOTIS, and also whether it will be “pure” EOTIS or partly delivered in a school

It follows therefore that the requirement for specificity in section F where EOTIS is contemplated is pressing, as whatever is written into section F is what the child or young person will receive, and whether or not the child or young person will receive EOTIS hinges entirely on whether the provision in that section could be argued to be realistically capable of delivery in an education institution.  It is worth noting therefore that there is a potentially counter-intuitive technical aspect of this: even if everyone agrees that a child, for example, should not attend school, unless the wording in section F of the EHCP reflects that, the child’s parents will not have a right to demand (and pursue through proceedings in the High Court) EOTIS.

As a result, it is very important in an EOTIS case to focus on ensuring all of the provision sought to be included in section F of the EHCP is unambiguously worded to deliver a fulfilling, effective EOTIS package, whilst also as far as possible avoiding wording that could be delivered in a school, post-16 institution or relevant early years provider. 

For example, imagine the below wording for a child aged 12 for whom EOTIS has been advised after school broke down:

• Mohsin will receive 15 hours of tuition per week

Not only is this lacking in information, it is arguable that every child that attends school receives at least 15 hours of tuition per week so this is next to useless.  Let’s try to bolster that, adding wording in bold:

• Mohsin will receive 15 hours of 1:1 tuition per week, delivered by a specialist tutor with experience in supporting students with PDA, at a frequency of 3 hours per school day

We have added 1:1, and the specialism of the providing staff member.  However, this could plausibly be delivered in a school setting and therefore does not clearly entitle Mohsin to EOTIS, although it is clearly an upgrade from the previous wording. Finally, let’s word the provision in a way that is unambiguously “EOTIS”:

• Mohsin will receive 15 hours of 1:1 tuition per week, delivered at the family home by a specialist tutor with experience in supporting students with PDA, at a frequency of 3 hours per school day.

With the addition of a simple phrase, we have removed ambiguity in the wording and now entitled Mohsin to an EOTIS provision.  Now, whether or not this wording will be agreed by a tribunal will be dependent on the evidence in the case, but it is vital to ensure that in a tribunal appeal the wording you are actually seeking is going to provide what you want.  

Interestingly, those with legal training or some other relevant life experience will find this exercise similar to drafting and reviewing contracts. In some ways, an EHCP is read in the way one would read a contract. A contract has its own internal rules, separate to the laws of the land, breaking which can be considered breach of contract. The stringency and limits of the contract depend on the tightness of the drafting.  In a similar way, section F has its own internal rules, based on the tightness of its drafting. This is no starker than in an EOTIS situation, where the tightness of drafting not only dictates the type of provision the child or young person will receive, but their fundamental right to EOTIS in the first place.

I will be producing further pieces which examine in more detail appropriate wording in an EOTIS package, so stay tuned for that.