March 5th, 2020 by James Goudie KC

The word “necessary” applies in connection with some local authority duties and powers. An example is Section 37(1) of the Children and Families Act 2014. This provides that where, in the light of an Education, Health and Care Plan (“EHC Plan”) assessment, it is “necessary” for special educational provision to be made for a child or young person in accordance with an EHC Plan, the local authority must secure that an EHC Plan is prepared for the child or young person, and, once the Plan has been prepared, it must maintain the Plan.

This provision has been considered in Nottinghamshire County Council v SF and GD (2020) EWCA Civ 226. The Court of Appeal says (paragraph 20) that “necessity” is “not a concept that is to be over-defined”. “Necessary” has a spectrum of meanings, somewhere between indispensable and useful: paragraphs 21 and 27. What is “necessary” may involve a value judgment: paragraphs 22 and 27. What is “necessary” is a matter to be deduced rather than defined: paragraphs 23 and 27. Its determination will vary according to the circumstances of a particular case and may well involve a considerable degree of judgment: ibid. “Necessary” is a word in common usage, entailing the exercise of an evaluative judgment: paragraph 38.

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