Education, Health and Care (“EHC”) Plans

This article was written by Callum Scott, Amrita Hurst, and Euan Grimley.

Public bodies will be familiar with disputes in which the First-tier Tribunal (HESC) (Special Educational Needs & Disability) is asked to grapple with the technically complex distinction between special educational provision (“SEP”) and healthcare provision (“HCP”). 

Over the past three decades, a number of Courts and Tribunals have been asked consider the question of what provision fits within the category of SEP; what falls instead into HCP, and the provision which can simultaneously be both! 

The distinction between SEP and HCP has perhaps become even more blurred since Sedley LJ’s conclusions in London Borough of Bromley v SENDIST and Others [1999] EWCA Civ 3038 that there was provision which may be “unequivocally educational” and some “unequivocally non-educational”, and between two a “shared territory of provision which can be intelligibly allocated to either”.

In the recently published decision of R&RK v Hertfordshire County Council [2025] UKUT 381 (AAC), the Upper Tribunal once again was asked to grapple with defining the boundary between provision in an EHC Plan.

No hard boundary between SEP and HCP

Whilst Upper Tribunal Judge Jacobs declined to ‘formulate a test, still less a definition’, he suggested that “the classification depends on how closely connected a provision is to the delivery of education” with reference to how speech and language therapy is dealt with by the statutory guidance – the guidance arguably having codified the long established case-law position that SaLT provision should normally be recorded as special educational provision unless there are exceptional reasons for not doing so.

Judge Jacobs reaffirmed the long-established principle that “educational provision” does not (necessarily) require evidence of the provision educating or training. Primary legislation expressly distinguishes between ‘direct’ educational provision – which does not require evidence that it educates or trains - and so-called ‘deemed’ special educational provision, which does.  Provision which is found to have an educating or training effect, can in turn move the provision from where it would otherwise sit in an EHC Plan as HCP (or social care provision “SCP”) to SEP. This matters not merely as an issue of the format of an EHC Plan, but much more significantly, because it can change the public body responsible for securing the provision, as well as having ‘down-stream’ impacts on a parent or young person’s right of appeal to the First-tier Tribunal.

Judge Jacobs reminds us of the hypothetical example he used in previous cases, namely an arrangement to help a pupil with a hearing impairment to hear e.g. a hearing aid with a classroom hearing loop and microphone. Whilst this arrangement does not itself educate or train the child; Judge Jacobs confirms that it is (special) educational provision as it provides a means by which they can participate in class.

However, of perhaps even greater significance is Judge Jacob’s conclusion that the order in which the component elements of the statutory definition of SEP are applied matters for the purposes of classifying provision as SEP or HCP (or indeed SCP): 

42. I do not accept the order in which the different types of provision are decided makes no difference. The tribunal has to remove any health care provision that educates or trains from Section G. This is necessary in order to relieve the responsible commissioning body of the duty to arrange that provision under section 42(3). This can only be authorised by section 21(5). Logically, therefore, the tribunal should undertake that exercise before considering direct educational provision. That approach will also prevent duplication of effort.

In summary, Judge Jacobs considered that a Tribunal panel might first [re]move any health/social care provision that educates or trains from Sections G or H (i.e. by finding that it should be treated as special educational provision and placed in Section F) before it goes on to consider direct special educational provision. That said, it should be noted that Judge Jacobs did not find that this was the only correct approach that a Tribunal might take. Provided that said Tribunal correctly applies the statutory definitions when determining where in an EHC Plan provision should be included.

Other points of note arising 

R&RK is also a helpful reminder that not all health care provision must be specified in an EHC plan, only that which is reasonably required by the learning difficulties and disabilities which result in the special educational needs. Whilst other health care provision can be included within Section G it need not be. 

Moreover, Judge Jacobs affirmed that privately funded healthcare does not meet the statutory (i.e. CFA 2014) definition of HCP. Accordingly, if provision is ‘not made by the NHS’, the duty on the relevant responsible commissioning body [the ICB] to secure HCP specified in an EHC Plan is disapplied. 

Finally, Judge Jacobs offered some practical guidance on the use of expert evidence in the SEND Tribunal, emphasising that “Expert evidence is only as good as the reasons for it”. The Judge recorded that the Tribunal at first instance rejected the recommendations made by experts on occupational therapy as “the experts had not explained why they had made them”. 

Key takeaways for local authorities and health commissioners when dealing with EHC Plan provision

• There remains no fixed boundary between SEP and HCP or SCP.
• The provision within a particular EHC Plan will be assessed on its own facts. 
•  HCP or SCP which educates, or trains, will be considered as (special) educational provision, provided that the educating or training impact is more than merely incidental. 
• Local authorities, in particular, and those representing them before the Tribunal might wish to consider their own approach to dealing with the question of where provision sets in an EHC Plan, so as to follow Judge Jacobs’s suggested approach. 
• Whilst not expressly reference in the R&RK decision, pro-active, close working between the public bodies is expected by the Tribunal – and such collaboration can bolster a local authority’s case.