Q&As

What is the practical difference between an educational need and provision, and a health need and provision?

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Produced in partnership with Christopher McFarland of Sinclairs Law
Published on LexisPSL on 19/05/2017

The following Local Government Q&A produced in partnership with Christopher McFarland of Sinclairs Law provides comprehensive and up to date legal information covering:

  • What is the practical difference between an educational need and provision, and a health need and provision?
  • Why does this dispute arise?
  • How does one define an ‘educational’ or ‘health’ need or provision?

What is the practical difference between an educational need and provision, and a health need and provision?

This Q&A outlines the considerations when determining whether a need and provision is educational or health related. This Q&A deals with the difference in the relevant law between England and Wales.

To understand how this distinction operates in practice it is first important to understand its significance.

Why does this dispute arise?

Since the advent of statements of Special Educational Needs (SEN) (Statements), there has been extensive disagreement about how certain types of provision should be defined. In particular, whether a need/provision is an ‘educational’ or ‘non-educational’ need.

Under the Education Act 1996 (EA 1996), which still applies in Wales and to the remaining statements in England, this definition was used to decide whether the provision should be recorded in the (enforceable) Part 3 or the (non-enforceable) Part 6 of the statement.

Accordingly, from a local authority perspective, classifying a need and provision as ‘non-educational’ can be beneficial as it will not be a breach of duty if, for whatever reason, it cannot or does not provide that provision. On the contrary, from the parent and young person’s perspective, it can afford them greater protection if the need and provision are considered to be educational.

Since the Children and Families Act 2014 (CFA 2014) came into force in England, the new Education, Health and

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