IPSEA Ltd, R (on the application of) v Secretary of State for Education and Skills

The duty to specify special educational provision requires a statement to identify provision appropriate to the individual child’s needs and objectives. Quantification, such as hours or frequency, will often be necessary, but numerical quantification is not invariably required. Flexibility is lawful where it is directed to the child’s changing needs, including needs arising from the interaction between the child and the educational environment. Flexibility cannot be introduced to accommodate the needs of the education system. General guidance remains lawful if read consistently with that principle; vague statements that fail to specify provision appropriate to the child’s identified needs do not comply with the law.

IPSEA, a charity supporting parents of children with special educational needs, sought permission to appeal against Newman J’s refusal on 26 March 2002 of permission to apply for judicial review. The challenge concerned three paragraphs of the Secretary of State’s non-statutory SEN Toolkit, which gave guidance on specifying and quantifying provision in statements of special educational needs.

The dispute arose under section 324 of the Education Act 1996 and the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001. The central questions were whether specification required quantification, whether flexibility was confined to changing special educational needs, and how that phrase should be understood.

1. Permission to appeal refused. The application raised a novel point which had been fully argued, and the court directed that the relevant citation restriction did not apply.
2. Under section 324 of the Education Act 1996 and the 2001 Regulations, the legal obligation is to write a statement which specifies the required matters. “Specify” does not invariably mean numerical quantification, since Parliament could have required quantification expressly. Nevertheless, the statement must spell out provision appropriate to the particular needs and objectives of the individual child.
3. In many cases, specification will require hours per week or comparable detail. The court adopted the approach in L v Clarke and Somerset County Council [1998] ELR 129, that staffing arrangements and curriculum may often be impossible to specify adequately without stating hours per week.
4. Any flexibility in a statement must meet the child’s needs, not the needs of the educational system. The child’s needs are not assessed in isolation. They may fluctuate because of health or fitness, or because of the interaction between the child and the environment, including the particular peer group and personnel providing education or support.
5. The Code of Practice issued under section 313 of the Education Act 1996 is policy guidance and need not be read as incorporating the statutory definitions by reference. Properly understood, its general rule of precision and its provision for flexibility where that best meets the child’s changing needs are consistent with section 324 and the Toolkit. The court’s approach accorded with E v Newham London Borough Council and the Special Educational Needs Tribunal [2003] EWCA Civ 000.
6. Vague statements which fail to specify provision appropriate to the child’s identified special educational needs are unlawful. On the proper reading of the materials, however, the challenged guidance was not itself shown to be unlawful, so permission was refused.

• Court of Appeal (Civil Division): permission to appeal refused.
• Administrative Court, Newman J: on 26 March 2002, permission to apply for judicial review was refused.