[2023] UKUT 177 (AAC)

As above, the Tribunal confirmed through the post-Review Decision that it ordered, as special educational provision (whether applying s.21(1) or (5)), mentoring support for five hours per day, seven days per week, on every day of the calendar year. That would require, for example, mentoring as special education provision even on Christmas Day, if taken in extremis.

For such a finding to be permissible, the Tribunal needed to be satisfied that there was an educational need for programmes to be delivered beyond the ordinary school day and term structure. Whilst the Upper Tribunal had warned against attributing significance to terms such as ‘waking day’ and ‘extended curriculum’(London Borough of Southwark v WE [2021] UKUT 241 (AAC)), that was an extraordinary example of such provision.

The need for consistency, or reinforcement of learning, was not sufficient to establish that an educational need existed for the delivery of education beyond the ordinary school day and term structure: Hampshire CC v JP [2009] UKUT 239 (AAC) at [27], London Borough of Hammersmith and Fulham v JH [2012] UKUT 328 (AAC) at [18-19].

As the emphasised wording quoted above showed, a key reason provided by the Tribunal for its approach to mentoring supporting in non-term time related to anxiety and the need for consistency in relation to executive functioning skills. That approach did not justify the mentoring being treated as special educational provision. Anxiety was generally considered to be a health need and consistency might well be beneficial, but it could not create a need for an extended curriculum

Moreover, having regard to the involvement of the mentor in the SLT and OT programmes over the holiday periods, whilst that might provide some justification for mentoring to an extent during holiday periods, it was not open to the Tribunal rationally to conclude that that (or, indeed, anything else) justified the full extent of the provision ordered in Section F over holiday periods. The Tribunal failed to make any finding as to how much of the mentoring was educational and how much non-educational.

In light of the evidence and findings made, in error the Tribunal failed to properly engage with, or address, how much of the mentoring during non-term time constituted special educational provision, even if it was satisfied that some of it was.