[2023] UKUT 177 (AAC)

On 16 May 2022 the Deputy Chamber President, Judge Meleri Tudur, decided to review the decision of the Tribunal. Her reasons for the decision were as follows:

“1.

On the 23 March 2022, the LA submitted a request for permission to appeal the First-tier Tribunal SEND’s decision dated 23 February 2022 on the basis that it contained an error of law.

2.

It was submitted that the Tribunal had included the same provision in two different sections of the EHC plan thereby doubling the provision to be provided to A.

3.

I have read the decision and note that there is reference in the conclusions to the provision of five hours of support being made available as educational provision for A. Paragraph 26 explains the conclusion and the reasons for it and there is nothing in the decision to indicate that A required ten hours support per day.

4.

I have concluded that this is likely to be an error on the part of the tribunal and that the decision should be set aside as to that element of A’s provision only and remitted back to the original tribunal for reconsideration.

5.

Rule 49 provides that before taking any action in relation to a review, the Tribunal must provide an opportunity for every party to make submissions in relation to it. For that reason, I set out the directions below:

It is ordered that:

1.

The Tribunal is minded to review the decision issued on the 23 February 2022, to a limited extent as set out below:

a)

The decision made provision for A to receive five hours per day of support in both Section F and Section H making a total of 10 hours per day of support. The conclusions explain that the tribunal accepted the evidence that five hours support per day was reasonably required for A.

b)

Pursuant to Rule 49(3) of the Tribunal Procedure Rules 2008 (as amended), the Young Person shall send her representations in response to the proposed action on review so that it is received by noon on the 30 May 2022.

c)

The application shall be considered further on the first available date after the 30 May 2022.”

On 29 July 2022 the Council sent to A’s mother an email explaining that its intention was to provide 5 hours of mentoring in term time only, but only 5 hours per week during the school holidays. It did not agree that the provision in Section F meant that A should have 5 hours a day every day of the year, but acknowledged that there was a need for some mentoring provision during the holiday period. The email continued:

“Direct payments amount for a mentor agreed as term-time only at 5 hours a day, however for the school holidays, we will give 5 hours a week to allow for continuous provision which will work out as follows for Academic Year 2022-2023:

39 term-time weeks 25 hrs x 39 weeks x £50/hour = £48,750

13 weeks holiday 5 hrs x £50 = £3,250

Total for this year £52,000 per year.

For this summer holiday period July/August 2022 we also agree 5 hours a week for 6 weeks.

6 weeks x 5 hours a week x £50 = £1,500

As mentioned above the LA do not agree that the provision in section F of the plan means that A should have 5 hours day 365 days year, but acknowledge that here is a need for some mentor provision during the holiday period to support the continuity of the Salt and O provision. We agree to fund 5 hours a week in the holiday period, 13 weeks a year”.

On 2 August 2022 Judge Tudur decided to review the decision and directed that the case be listed for a case management conference by telephone. That telephone case management conference was heard on 10 August 2022 by Tribunal Judge Brownlee.