[2025] UKUT 323 (AAC)

By section 20(1) of the Children and Families Act 2014 (the 2014 Act), a child has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her. By section 20(2), a child of compulsory school age has a learning difficulty or disability if he or she: (a) has a significantly greater difficulty in learning than the majority of others of the same age, or (b) 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.

By section 21(1) of the 2014 Act ‘special educational provision’, for a child aged two or more, means educational or training provision that is additional to, or different from, that made generally for others of the same age in mainstream maintained schools. By section 21(3) and (4), ‘special educational provision’ is distinguished from, respectively, ‘health care provision’ (which means the provision of health care services as part of the comprehensive health service in England continued under section 1(1) of the National Health Service Act 2006) and ‘social care provision’ which means the provision made by a local authority in the exercise of its social services functions. However, section 21(5) stipulates that health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision).

By section 37(1) of the 2014 Act where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child in accordance with an EHC plan, the local authority must make and maintain such a Plan. By section 37(2), an EHC plan is a plan specifying (among other things): the child’s or young person’s special educational needs; the special educational provision required by him or her; any health care provision reasonably required by the learning difficulties and disabilities which result in him or her having special educational needs, and any social care provision which must be made for him or her by the local authority or which is reasonably required by the learning difficulties and disabilities which result in the child or young person having special educational needs.

The Special Educational Needs and Disability Regulations 2014 (SI 2014/1530) made under the 2014 Act (the 2014 Regulations) provide at regulation 12 that, when preparing an EHC plan, the local authority must set out in separate sections various matters including: in Section B, the child’s special educational needs; in Section C, the child’s health care needs which relate to their special educational needs; in Section D, the child’s social care needs which relate to their special educational needs or to a disability; in Section F, the special educational provision required by the child; in Section G, any health care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having special educational needs; in Section H any social care provision; and, in Section I, the name of the school or other institution to be attended by the child, or type of school or institution.