Quantitative thresholds are not lawful
Education and Health Care Plans have been with us since 2015. That’s six years, and yet there is still so much misinformation about them. I still, regularly come across schools that don’t fully understand the law. There are many reasons why schools in particular might be misinformed.
Legal training is rarely a requirement for teaching staff
The most inclusive schools with the best practice are probably exceeding the provision that is generally available and so have fewer children that continue to struggle, and therefore might be identified as needing an EHCP
Local authorities may have shared documentation with SENCos which causes confusion.
One of the most frequently encountered myths I come across is the concept of quantitative thresholds.
A quantitative threshold is a little bit like the height restriction you might see at a theme or play park – if you are under or over the height threshold you either can or can’t participate. I remember the days when my children couldn’t wait to be tall enough to go on a particular ride, or when they bent their knees to make sure they could ‘duck’ under a height restrictor to gain access to the ball pit when in all honesty they had totally outgrown it.
So how do quantitative thresholds work with EHCPs? The short answer is they shouldn’t. And yet they often occupy far too much of the conversation.
Common thresholds cited include:
We haven’t spent £6,000 in additional support therefore your child isn’t eligible
Your child isn’t x years behind
We can’t apply for an EHCP until we’ve got at least x months/years of evidence
Only x % of children qualify for an EHCP and your child isn’t in the worst x%
If you find yourself coming up against these types of arguments, the school is misinformed and it is probably not their fault.
So if these quantitative thresholds are not lawful, what is the test that is to be used?
The test is laid out in the Children and Families Act 2014 Section 36 and the test is a fairly low threshold.
The local authority must secure an EHC needs assessment for the child or young person if, after having regard to any views expressed and evidence submitted under subsection (7), the authority is of the opinion that—
(a) the child or young person has or may have special educational needs, and
(b) it may be necessary for special educational provision to be made for the child or young person in accordance with an EHC plan.— CHILDREN & FAMILIES ACT 2014 S(36)
In order to understand this in the context of any given child or young person we also need to understand how special educational needs and special educational provision are defined.
Special Educational Needs are defined in Section 20:
A child or young person 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.
(2) A child of compulsory school age or a young person 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.— CHILDREN & FAMILIES ACT 2014 S(20)
And Special Educational Provision is defined in Section 21:
(1) “Special educational provision”, for a child aged two or more or a young person, means educational or training provision that is additional to, or different from, that made generally for others of the same age in—
(a) mainstream schools in England,
(b) maintained nursery schools in England,
(c) mainstream post-16 institutions in England, or
(d) places in England at which relevant early years education is provided.
(5) 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).— CHILDREN & FAMILIES ACT 2014 S(21)
So if we put all this together, the first thing to check is
Does the child or young person have a disability or learning difficulty which makes it more difficult for them to learn than the majority of children of the same age (and learning can include social-emotional & mental health development, sensory & physical development, and communication & interaction learning, as well as academic learning)?
If this is the case, do they require a provision that is additional to or different from a provision made generally for others of the same age in mainstream schools in England (or the equivalent depending upon age)? And is that provision significant enough that the school might have to buy in additional resources (eg extra support, Occupational Therapy, Speech & Language therapy etc)?
If the answer to either of these questions is yes or maybe, an EHC Needs Assessment is warranted.
Note, there is no reference in any of this legislation to £ amounts, years of progress, or lengths of time.
