[2023] UKUT 177 (AAC)

The Council asserted that a key reason for the Tribunal’s conclusion that A required mentoring beyond term time was for “consistency in relation to non-executive functioning skills” in circumstances in which, so it argued “consistency … is not sufficient to establish that an educational need exists … beyond the ordinary school day”.

The Council argued that: “The need for consistency, or reinforcement of learning [i.e. a consistent delivery of provision], is not sufficient to establish that an educational need exists for the delivery of education beyond the ordinary school day and term structure.” But that was not the law: the legal point was that a need for consistency of approach beyond the school day did not mean that that was necessarily an educational need: R(TS) v Bowen & Solihull [2009] EWHC 5 at [39]. That did not mean that, in a particular case, a Tribunal could not lawfully decide that a need for a consistency of provision was special educational provision in the circumstances of this young person.

But even that was not pertinent here because this Tribunal was not referring to consistency of provision. It was concerned with provision which would promote A’s consistent development. The Council had confused two entirely different things. What the Tribunal said was this:

“[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 basisin 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].

The Council had simply misread the Tribunal decision.

But, as stated above, even if the Tribunal had concluded that “consistent support” was the issue and that consistent support was all that was needed, then that would still have been entirely lawful conclusion for it to reach on the evidence and facts of this case. The law simply was that a need for consistent support alone was not necessarily enough to make it special educational provision , but that did not preclude it being enough in any particular case.

Overall, the Tribunal’s conclusion that A required 5 hours of mentoring support per day throughout the year was entirely lawful.