[2023] UKUT 177 (AAC)

The September decision at [8] said that:

“The Tribunal panel wishes to be as clear as it can be. The Tribunal panel considers that A reasonably requires five hours of mentoring support per day, in order to support her education and learning. Accordingly, the mentoring support should amount to five hours per day, and it should be set out as special educational provision in order to meet A’s special educational needs. We have taken into account the updated letter from Mr Corcoran who reaffirms that A has deficits in relation to her executive functioning skills, which lead to significant challenges in managing day to day life, daily living skills and learning. We have no doubt that A requires mentoring support for five days each day and the provision should be specified in section F. Accordingly, we have amended section H, to remove duplication” [emphasis added].

Important to understanding why on any view that was an entirely lawful conclusion, and to understanding why the Council’s critique was so misplaced was (1) an understanding of the law and (2) the appreciation that the evaluation of the evidence and factual position against that law was a matter of judgment and evaluation for the expert Tribunal to which (particularly given that this was a judicial review, not appeal of a second consideration of the matter by the Tribunal) the Upper Tribunal should give the greatest deference.

As to (1), special educational provision could either arise as educational provision (s.21(1)) and/or what some have called “deemed special educational provision”, namely something which would be health care provision or social care provision but which, because it “educates or trains” took effect by operation of s.21(5) instead as special educational provision.

Critically missing from the Council’s analysis was that – as a matter of law - something could be educational provision (for s.21(1) purposes), even if it did not educate or train (in the s.21(5) sense). They were separate concepts. Upper Tribunal Judge Jacobs explained the position in EAM v East Sussex CC [2022] UKUT 193 (AAC):

“8.

Section 21(1) defines ‘educational provision’. Section 21(5) refers to ‘health care provision … which educates or trains a child’. …

9.

A provision may be educational without itself educating a child. The word means ‘of, pertaining to, or concerned with education’ to quote the Oxford Shorter English Dictionary (fifth edition). The difference is easy to demonstrate. Suppose a teacher is giving a lesson to a class. One pupil in the class has impaired hearing and wears a hearing aid. The school has installed a loop system and the teacher uses a microphone. With the hearing aid on the T setting, the pupil can hear the lesson. The microphone and the loop system are both educational provision. But they do not themselves educate the pupil. The hearing aid may be both an educational provision and a health care provision, but again it does not educate the pupil. The teacher and the contents of the lesson educate the pupil.

10.

… the correct term for the tribunal to use was ‘educational provision’. It is only relevant to decide whether a provision ‘educates a child’ if it is also health or social care provision.”

The primary question here was whether for A the mentoring was “educational provision” (per s.21(1)).

It was well established that the question of whether any particular provision was “educational provision” was not a question of law; rather, it was a matter for the local authority and, on appeal, the Tribunal. The Tribunal could lawfully give “educational” a broad meaning for that purpose: LB Bromley v SENT [1999] ELR 260.

This Tribunal was thus fully entitled to conclude that the mentoring which it had concluded that A needed to support her education and learning was indeed educational provision (and thus special educational provision) for her (whatever the position for any other person might be). Its conclusion and reasoning were unimpeachable.

The Council’s points on that issue were made in a confused order. The response dealt with them in a more logical order.

The Council contended that the mentoring input was not s.21(1) special educational provision because (so it contended) the provision was merely “designed to facilitate access to education, as opposed to providing education per se”.

The Tribunal referred to the provision in question as “supporting her education and learning” not “facilitating access to [it]”. But, in any event, as explained by Judge Jacobs, provision could be educational without “providing education per se”. Something which supported (or even facilitated) education (in the manner of the hearing aid loop etc. in his example) could lawfully be educational provision. The Tribunal was entitled to decide that it was here, for A. No more was needed for a lawful decision that this for A was special educational provision.

The Council nonetheless also complained that the Tribunal did not make clear whether the provision in question was “direct or deemed” special educational provision (i.e. whether it fell within s. 21(1) or 21(5) of the 2014 Act). The Council then argued that the mentoring could only be included in Section F to the extent that (per s.21(5)) it “educated or trained” A. It also complained that, in its 23 February 2022 decision the Tribunal said it was unable to decide which aspects of the monitoring “educated or trained”. It suggested that it followed from the Tribunal not reaching a view on which aspects educated or trained then “at least part of the mentoring provision was not educational” [italics in the original].

However, as above, there was no need for the Tribunal to consider whether the provision educated or trained (since that would only arise under s. 21(5)). Of course, there was no problem with it doing so in addition to its s. 21(1) consideration (not least because the provision in question had been presented to it by the Council as social care provision), but, given its decision that the provision was educational provision (per s.21(1)) the question of whether it might also have been deemed special educational provision by operation of s.21(5)) did not necessarily arise and added nothing. Notably in that context, the Tribunal’s mention of the “educates or trains” question arose only in the passage in its February decision which Judge Tudur set aside, and even then, only arose at all from the way in which the Council itself had put its case to the Tribunal. As the Tribunal put it at [24]:

“The LA’s position on this was that not all of the daily support from the autism mentor/personal assistant/specialist worker trains or educates A and so it is not appropriate for it to be classified, in its entirety, as special educational provision” [emphasis added].

As stated above, the Tribunal did not need to consider that “educates or trains” question, but it could not be criticised for looking at the point given the Council’s case before it and, as stated above, the answer was not key to its decision overall.

What actually mattered though was that, in the operative September decision, the Tribunal concluded that the entirety of the provision was special educational provision.

Any permitted criticism of the February passage would thus take things no further. In any event, it would be misplaced since the Tribunal was perfectly entitled to conclude that, however precisely the 5 hours broke down (given the variety of benefits which it was bringing for A), it was nonetheless all properly classified as special educational provision. There was no basis for the Upper Tribunal to declare that unlawful (as it would need to on a judicial review).

The Council made two further (and essentially discrete) points. First it argued that “at least some of the time provided by the mentor constituted respite, which is not special educational provision”. However, that was a reference to material in the February decision which had been set aside, and so criticism of it was not relevant. But, in any event, the Council misrepresented even what the Tribunal had said at that point. It had merely accepted that the mentoring “may provide some respite to the family, but this was an indirect result and not the main aim of the provision” at [26]. That was an unimpeachable conclusion which – even had it still been operative – would not in any sense undermine the FTT’s conclusion that the provision in question was special educational. Most special educational provision - and indeed any special educational provision provided at a school - would have the indirect result of providing respite to the family. That did not make it not special educational provision. The Council’s point was an obviously bad one.

Secondly, the Council also argued that the Tribunal’s mention of the mentor assisting with access to (out of term) SLT and OT programmes undermined its conclusions on the need for mentoring input during term time. The point was a bad one. The passage about which it complained was referring to the whole annual process, including therefore the out of term period to which the SLT/OT element would be directly pertinent.

Overall, the Council’s conclusion that, for A, the mentoring support was special educational provision to be included in Section F of her EHCP was entirely lawful.