[2023] UKUT 177 (AAC)

in East Sussex County Council v JC [2018] UKUT 81 (AAC) at [29] the Upper Tribunal recognised that the provision of a powered wheelchair could only be special educational provision to the extent that its use educated or trained.

Only to the extent that mentoring educated or trained was it permissible to be included in Section F. Whilst some special educational provision might have a ‘dual use’, in the Council’s submission the Tribunal was not entitled simply to conclude that all of the mentoring should be treated as special educational provision, when it was clear from both its own reasoning and the final working document that some (and in the Council’s submission, a material and/or substantial part) was not directed to education and learning in the sense required by either s.21(1) or (5).

Furthermore, as to the quotation from the final working document cited above, the inclusion by the Tribunal of the references to the mentor assisting with SLT and OT programmes was in error because, during term time, there would be no programmes for the mentor to implement. It was clear from the wording at pages 18-19 of the final working document, relating to Outcome 1 (communication and interaction), that weekly direct SLT of one hour per week was to be provided during term time, but there was no reference to the creation of programmes or to indirect therapy during term time. The only reference to indirect SLT and the provision of a programme to be implemented arose in holiday periods. Similarly, in relation to Outcome 4 (sensory and physical), at pages 22-23 of the working document, there was a reference to weekly direct OT of one hour per week during term time, but there was no reference to indirect therapy or the provision of programmes except in relation to holiday periods.

Therefore, insofar as the Tribunal’s intention was for such programmes to be implemented by the mentor, that only (or materially and/or substantially 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. (Whilst paragraphs 27 and 28 of the Decision were noted, they did not read consistently with what the Tribunal directed through the final working document. It was not accepted that by merely attending the direct sessions, the mentor could then be appropriately placed to provide indirect therapy.)

Whilst page 17 of the final working document accompanying the post-Review Decision also referred to a limited number of specific programmes which would be followed, the Tribunal’s conclusion that all of the mentor’s time would be devoted to applying these programmes in an educational sense, thus constituting special educational provision, was unsustainable in view of the arguments set out above.

In summary, therefore, the Tribunal’s decision to order, during term time, mentoring support of five hours per day, seven days per week, every day of the year, was in error because: (a) it was inconsistent with its own findings on the evidence before it; (b) it failed properly to engage with, and address, how much of it was special educational provision, as opposed to social care provision, even if it was satisfied that some of it was special educational provision; (c) it wrongly treated provision which facilitated access to education, or at least did so to an extent (and arguably to a material and/or substantial extent), as being entirely special educational provision; and/or (d) it wrongly attributed functions of the mentor in relation to SLT and OT as arising in term time and contributing to the delivery of special educational provision.