Friday, 2 November 2012

"Set out" versus "specify": risk of vague unenforceable statements

Question: What is the big issue re set-out vs specify? Is it not just words?

IPSEA’s answer: English law is often about the meaning of individual words in statutes – and the word “specify” is an example. It is fundamental to whether a statement works for a child. If statements are unspecific, they do not have the effect Parliament intended: that of guaranteeing that children receive the vital help they need. Unless provision such as hours of specialist input, e.g. from a speech therapist or a special aid such as an adapted laptop, is specified on the statement, disabled youngsters and their parents will have no way of ensuring they get the help they need. Vaguely written statements are often worthless as help can be infrequent, intermittent or cut back – especially if schools are free to spend any statement money as they wish. Judges have interpreted the local authority’s duty to ‘specify’ as meaning that the provision should normally be quantified, e.g. in hours per week, and any departure from the norm should be for the needs of the child, not those of a school, local authority or NHS trust. There was a previous (2000) attempt to change ‘specify’ to ‘set out’ in the SEN Regulations and the Code of Practice, which was defeated by lobbying by parents’ groups. In that attempt, the change would have left the word in the Education Act. This time the attempt is more dangerous as it would change the Act itself, and remove the effect of years of judges’ interpretation of ‘specify’. And of course we do not yet know what will be in any Regulations or in the Code.

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