[2023] UKUT 177 (AAC)

In Ground 2 the Council submitted that the Tribunal erred by concluding that mentoring support was required as special educational provision, at all or alternatively to the extent ordered, during non-term time periods. That ground arose out of the September decision to the effect that

“9.

[Her parents], on A’s behalf, submit that she reasonably requires mentoring support for five hours per day, 365 days per year. The LA do not accept that sufficient evidence has been provided to support a finding that A reasonably requires special educational provision beyond the school terms. The Tribunal panel has considered the evidence from I Support, as well as the report from Ms Welby-Delimere, which, in our view, is sufficient to support the position that A reasonably requires mentoring support for five hours per day, including outside of term time. We noted Ms Welby-Delimere’s professional view that without the support on a daily basis, A’s learning and progress will regress, leading to an exacerbation of her anxiety. We have concluded that the support in required on a daily basis in order to meet A’s anxiety disorder and promote consistent development of her executive functioning skills, which will also meet her needs relating to extreme avoidance. We have concluded that it is more likely than not that A’s needs will not be met unless she receives mentoring support for five hours per day, outside of the school term and on the weekends. We had regard to the outcomes in section E and concluded they are unlikely to be achieved without consistent mentoring support outside of the school weeks. Accordingly, we have amended the mentoring provision to specify this.”

It therefore has none of the problems about raising a new point for the first time so late on in the judicial process associated with the various elements of Ground 1. I am satisfied that the point raised is an arguable one and I grant permission in respect of it.

Mr Wolfe KC sought to impugn that second ground of review on the basis that it did not arise out of the review ordered by Judge Tudur. However, Judge Tudur and Judge Brownlee had commensurate jurisdiction as Judges of the First-tier Tribunal and as a matter of jurisdiction it was open to Judge Brownlee to expand the scope of the review, so that it is open to the Council to raise the second ground in support of its application.

For the purposes of this decision, I shall proceed on the assumption that it was appropriate to expand the ambit of the review. I do, however, draw attention for future occasions to the remarks of the Court of Appeal in Point West about the importance of finality in litigation (which I set out at the end of this decision).

I am, nevertheless, satisfied that Mr Wolfe KC is right in his submissions and that the substantive review on this ground should be dismissed.

Although Mr Line submitted forcefully that the need for consistency, or reinforcement of learning (in other words, a consistent delivery of provision), was not sufficient to establish that an educational need existed for the delivery of education beyond the ordinary school day and term structure, what emerges from the decisions in Hammersmith & Fulham LBC v JH at [18-19] and R(TS) v Bowen & Ors at [39] is that a need for consistency of approach beyond the school day does not mean that that is necessarily an educational need. That does not mean that, in a particular case, a Tribunal cannot lawfully decide that a need for a consistency of provision is special educational provision in the circumstances of the particular young person. The question in each case, to paraphrase Upper Tribunal Judge Lane in Hammersmith & Fulham LBC v JH at [19], is that in each case the Tribunalmust decide whether it is necessary for the child or young person to have an extended extracurricular educational programme continuing after the end of the school day or the school term. As she said in that case

“18.

A waking day curriculum may be called for where a pupil’s SEN mean that he is unable to generalise skills from the classroom to other environments, unlike other pupils without SEN. If the pupil needs to have therapies and activities outside of school hours which enable him to develop the skills of daily living (LB Bromley v SENDIST [1999] ELR 260 CA) and to ‘translate into his home and social and indeed all areas of his life and functioning, the skill which he learns within the school and school room’, a waking day curriculum may be justified (S v Solihull MBC [2007] EWHC 1139 at [19] and [17]). In this context ’need’ is what is reasonably required (R(A) v Hertfordshire County Council [2006] EWHC 3428 (Admin), [2007] ELR 95 at [25] per His Honour Judge Gilbert QC, sitting as a deputy judge of the High Court).

19.

The Tribunal must, therefore, decide whether it is necessary for child to have an extended extracurricular educational programme continuing after the end of the school day. The fact that the child needs consistency of approach in his dealings with adults outside of school, as well as inside school, does not necessarily mean that this is an educational need which should be met with educational provision beyond the school day in a residential setting (The Learning Trust v SENDIST and MP [2007] EWHC 1634 (Admin), [2007] ELR 658; R (o/a T.S. v Bowen (Chair of SENDIST) [2009] EWHC 5 (Admin) at [27] [39]).”

Moreover, I accept that the Tribunal was not referring to consistency of provision, but was concerned rather with provision which would promote A’s consistent development. In addition, the Tribunal concluded that the mentoring supportwas requiredon a daily basis, not only meet A’s anxiety disorder (which is a health need), but also to promote consistent development of her executive functioning skills.

What it said was that:

“[Her parents], on A’s behalf, submit that she reasonably

requires mentoring support for five hours per day, 365 days per year. The LA do not accept that sufficient evidence has been provided to support a finding that A reasonably requires special educational provision beyond the school terms. The Tribunal panel has considered the evidence from I Support, as well as the report from Ms Welby Delimere, which, in our view, is sufficient to support the position that A reasonably requires mentoring support for five hours per day, including outside of term time. We noted Ms Welby Delimere’s professional view that without the support on a daily basis, A’s learning and progress will regress, leading to an exacerbation of her anxiety. We have concluded that the support is required on a daily basis in order to meet A’s anxiety disorder and promote consistentdevelopment of her executive functioning skills, which will also meet her needs relating to extreme avoidance. We have concluded that it is more likely than not that A’s needs will not be met unless she receives mentoring support for five hours per day, outside of the school term and on the weekends. We had regard to the outcomes in section E and concluded they are unlikely to be achieved without consistent mentoring support outside of the school weeks. Accordingly, we have amended the mentoring provision to specify this” [emphasis added].

Although I accept Mr Line’s point that consistency alone would only justify programmes of learning beyond the ordinary school day in extremely rare cases, I am satisfied that the Tribunal’s conclusion was an entirely lawful one for it to reach on the evidence and facts of this case. The law is that a need for consistent support alone is not necessarily enough to make it special educational provision, but that does not preclude it from being enough in any particular case.

As to Mr Line’s argument that consistency across settings and consistency of development are not materially distinct concepts, so that reference to the latter fell into the territory of what the Upper Tribunal was discussing in Hampshire CC vJP at [27], I repeat what I said in paragraph 128 above. A need for consistency of approach beyond the school day does not mean that that is necessarily an educational need, but that does not mean that, in a particular case, a Tribunal cannot lawfully decide that a need for a consistency of provision is special educational provision in the circumstances of the particular young person. The question in each case, to paraphrase Upper Tribunal Judge Lane in Hammersmith & Fulham LBC v JH at [19], is that in each case the Tribunalmust decide whether it is necessary for the child or young person to have an extended extracurricular educational programme continuing after the end of the school day or the school term. That is what the Tribunal did in this case - and as Sedley LJ said in Bromley LBC v SENT[1999] ELR 260 at 295:

“Special educational provision is, in principle, whatever is called for by a child's learning difficulty. A learning difficulty is anything inherent in the child which makes learning significantly harder for him than for most others or which hinders him from making use of ordinary school facilities ... It is when it comes to the statement under s.324 that the LEA is required to distinguish between educational provision and non-educational provision; and the prescribed form is divided up accordingly. Two possibilities arise here: either the two categories share a common frontier, so that where the one stops the other begins; or there is between the unequivocally educational and the unequivocally non-educational a shared territory of provision which can be intelligibly allocated to either. It seems to me that to adopt the first approach would be to read into the legislation a sharp dichotomy for which Parliament could have made express provision had it wished to do so, but which finds no expression or reflection where one would expect to find it, namely in s.312. Moreover, to impose a hard edge or common frontier does not get rid of definitional problems: it simply makes them more acute. And this is one of the reasons why, in my judgment, the second approach is then to be attributed to Parliament. The potentially large intermediate area of provision which is capable of ranking as educational or non-educational is not made the subject of any statutory prescription precisely because it is for the local education authority, and, if necessary, the SENT, to exercise a case by case judgment which no prescriptive legislation could ever hope to anticipate.”

Mr Line submitted in paragraph 27 of his skeleton argument that the Tribunal’s approach to non-term time provision was undermined for the same reasons as set out in Ground 1, in that the Tribunal fundamentally failed to address properly the extent of which the mentoring was educational as opposed to social care provision. However, what the Tribunal decided in its September decision after the review hearing was that

“The Tribunal panel has considered the evidence from I Support, as well as the report from Ms Welby-Delimere, which, in our view, is sufficient to support the position that A reasonably requires mentoring support for five hours per day, including outside of term time. We noted Ms Welby-Delimere’s professional view that without the support on a daily basis, A’s learning and progress will regress, leading to an exacerbation of her anxiety. We have concluded that the support in required on a daily basis in order to meet A’s anxiety disorder and promote consistent development of her executive functioning skills, which will also meet her needs relating to extreme avoidance. We have concluded that it is more likely than not that A’s needs will not be met unless she receives mentoring support for five hours per day, outside of the school term and on the weekends. We had regard to the outcomes in section E and concluded they are unlikely to be achieved without consistent mentoring support outside of the school weeks. Accordingly, we have amended the mentoring provision to specify this.”

It did not fail to address the extent to which the mentoring was educational as opposed to social care provision; it decided that it was all educational provision.

That leaves the discrete point made in relation to Ground 1, but which falls more naturally to be considered here. That was that, insofar as the Tribunal’s intention was for the SLT/OT programmes to be implemented by the mentor, that only arose in non-term time periods and could not justify the inclusion of 5 hours per day, 365 days per year, mentoring time as special educational provision. However, it is quite clear that the Tribunal’s conclusion as manifested in the working document was not solely dependent on the provision of SLT and OT programmes since the document in its final form stated (with emphasis added) that

“A will have up to 5 hours per day, 7 days per week, 52 weeks per year, with a specialist worker from an organisation such as I-support and/or autism mentors and/or a personal assistant/companion to assist A in accessing her education and travelling independently, helping her with her organisational and planning skills including management of her educational commitments and homeworkand helping A put into practise strategies she learns as part of her SALT and OT, as well as other independence and communication skills”.

Moreover, that passage refers to the whole annual process, including the out of term period to which the SLT/OT element would be directly pertinent.

As I mentioned in paragraph 118 above, paragraph 1 of the September decision stated that “this review decision should be read in conjunction with the decision issued as the end of the appeal hearing (dated 23 February 2022)”. What should therefore be read in conjunction with the September decision is what the Tribunal said in paragraph 17 of its February decision. Mr Line said that that was merely a recitation of the evidence, but it seems to me that the Tribunal was implicitly accepting that evidence (and certainly did not seek to criticise it). That evidence supports the need for daily educational provision, whether inside or outside term time.

“17.

We heard oral evidence from [A’s parents]. In this academic year, A has continued to receive extensive scaffolding support from both of her parents who have been working from home, along with her weekly sessions with Ms Welby-Delimere. A had a breakdown in March 2021 and A and her parents worked very hard to get her to a point where she could reengage with education. She has managed that and is making good progress at Lionheart. There have been many years of ups and downs with A’s education, but [her parents] felt that she is now at a point where she is comfortable with the educational environment and her tutors. A requires structure and when she isn’t attending Lionheart, she finds it very difficult to cope and requires round the clock support. She cannot attend an environment that she has not visited or with which she does not feel comfortable. If anything goes wrong, the day will be completely derailed. [Her mother] cited an example from that week – A’s art tutor had to change the day for their tutorial and it meant A was not able to attend Lionheart the day before the hearing or on the day of the hearing. [Her parents] see A’s education structure as a pillar which supports everything else with her skills development.”

Although I grant permission in respect of Ground 2, I therefore dismiss the substantive application for judicial review on that ground.