The Regulations prescribing the form and content of statements of special educational needs are the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 (and the virtually identical regulations for Wales: the Education (Special Educational Needs) (Wales) Regulations 2002). Regulation 16 provides that a statement of special educational needs must be in a form "substantially corresponding" to the example set out in Schedule 2 to the Regulations, and must also contain the information set out in Schedule 2.
Schedule 2 sets out the format for a statement of special educational needs. At Part 3 of the example statement, the following is set out:-
?Educational provision to meet needs and objectives
[Here specify the special educational provision which the Authority consider appropriate to meet the needs specified in Part 2 and to meet the objectives specified in this part and in particular specify?
(a) any appropriate facilities and equipment, staffing arrangements and curriculum)?
Section 324(ii), (iii)(b) and (iv)(c), EA 1996
The Education (Special Educational Needs) (England) (Consolidation) Regulations 2001, Reg. 16 and Schedule 2
This obligation is also reflected in paragraphs 8:36 and 8:37 of the Code of Practice on Special Educational Needs, which LEAs and Tribunals must "have regard to":
?8:36 A statement should specify clearly the provision necessary to meet the needs of the child. It should detail appropriate provision to meet each identified need ??
8:37 ? Provision should normally be quantified (e.g. in terms of hours of provision, staffing arrangements) although there will be cases where some flexibility should be retained in order to meet the changing special educational needs of the child concerned."
Paragraphs 8:34 and 8.37 of the Special Educational Needs Code of Practice
These duties have been tested extensively in the Courts. In particular, in R v Secretary of State for Education and Science Ex Parte E (1992) 1 FLR 277, the Court of Appeal confirmed that where a child requires a statement, all of the provision required to meet a child?s special educational needs must be set out in that statement. Whilst that case was concerned with the Education Act 1981 (a precursor of the current legislation contained in Part IV of the Education Act 1996), and whilst the case was also principally concerned with whether or not provision which could be made by the school should also be set out in a statement (which it should) the case, by implication, also underscores the point that provision must be specified and quantified, otherwise the intention of the judgement would be defeated.
R. v Secretary of State for Education and Science Ex Parte E (1992) 1FLR277
One reason why LEAs may wish not to specify provision is because they may then be required to arrange provision (pursuant to Section 324(5)(a)(i) of the Education Act 1996) over and beyond that which they have already funded. For example, they may have arrangements with Local Health Authorities for the provision of speech and language therapy but only to a limited extent, so that specificity of speech and language therapy beyond that which they have already funded may require additional and separate arrangements. However, this is not a legitimate reason for refusing to specify and, indeed, in R v London Borough of Harrow Ex Parte M (1997) ELR62, the Court affirmed the obligation of the LEAs to arrange provision set out in Part 3 of a statement, even where they had asked the Health Authority to arrange it, where the Health Authority had not done so.
In L v Clarke (Chair of Special Educational Needs Tribunal) & Somerset County Council [1998] ELR 129, the High Court specifically considered whether a statement should be specified and quantified. The Court determined that, ordinarily, statements should have a "high degree of specificity". Of course, there may be circumstances where specificity is not possible or desirable but, generally speaking, this should be the exception rather than the rule. Indeed, the reason why specificity is so important is, as set out in the Code of Practice, so that everyone is clear as to what the child concerned is entitled to, and ought to be receiving.
Sometimes, LEAs determine not to quantify or specify provision for children whose statements provide for them to attend special schools. There is nothing in law which limits the obligation to quantify and specify provision to those children not attending special schools. However, in E v London Borough of Newham and the Special Educational Needs Tribunal [2003] ELR 286, the Court of Appeal accepted that, where a child was attending a special school, a lower level of specificity may be appropriate.
E v Newham London Borough Council and the Special Educational Needs Tribunal [2003] EWCA Civ 09
LEAs often seek to rely on that decision to argue generally that provision for a child at a special school should not be specified or quantified. However, the obligation still remains to specify and quantify provision, except where there are good reasons not to do so. Merely attending a special school is not a sufficient reason not to specify provision and "flexibility" must be something that the child needs. As the Court of Appeal said in a case brought by IPSEA, (R (on the application of IPSEA Ltd) v Secretary of State for Education and Skills) [2003] ELR 393): "any flexibility built into the statement must be there to meet the needs of the child, and not the needs of the system."
Any flexibility built into the statement must be there to meet the needs of the child, and not the needs of the system
IPSEA Ltd, R (on the application of) v Secretary of State for Education and Skills [2003] EWCA Civ 7 (20 January 2003)
Another closely related issue which arose in E was whether it could be lawful for the LEA to include provision in a statement which was subject to an assessment to be undertaken at a later date. The Court indicated that generally this would not be lawful, a view also given by the High Court in C v SENT and London Borough of Greenwich [1999] ELR 5.
However, there will also be exceptions to this rule, and in some cases, particularly where the level of provision needed will not be known until a child begins at a particular school and is given an assessment, it may simply not be possible to specify provision.
C v Special Educational Needs Tribunal & Anor [1998] EWHC Admin 1029 (3 November 1998)
In those circumstances, one way of providing some protection is to set out a minimum, or an approximate, level of provision. This possibility has been raised by the High Court in a number of cases (including H v Gloucestershire County Council and Bowden [2000] ELR 357 and H v Leicestershire County Council [2000] ELR 471) and if the LEA fails to even do this then the statement may be unlawful.
If no minimum is specified (and it may be that in some cases it is not possible to do this), there is a risk that if the statement is left with an entirely open-ended amount of provision, then the LEA may be able to reduce the amount of provision at any time, without giving the parents a right of appeal to the Tribunal against that change. Accordingly, even where provision is for a time (and for a good reason) not specified and quantified, once it becomes possible for the LEA to specify and quantify provision, they should do so.
The logical approach to drafting a statement is first to define the needs (Part 2), then the provision to meet those needs (Part 3), and finally to name a school that can meet those needs (Part 4). Unless all of the provision in Part 3 is adequately specified, the right school may not be named. Accordingly, even if the school placement is the most important aspect for a child, special educational provision should still be specified in Part 3.