[2023] UKUT 177 (AAC)

Mr Line emphasised in particular what was said in paragraph 26 of the February decision to the effect that (with emphasis added)

“26.

[Her parents] made the point that the autism mentor provision may provide some respite to the family, but this was an indirect result and not the main aim of the provision ... The fourth area is the most significant, in our view – access to education, peers and a meaningful life in and beyond education. As a Tribunal panel, we found it impossible to account for how many of the five hours per day will be educational”

and in paragraphs 8 and 9 of the September decision

“8.

… A reasonably requires five hours of mentoring support per day, in order to support her education and learning. Accordingly, the mentoring support should amount to five hours per day, and it should be set out as special educational provision in order to meet A’s special educational needs …

9.

… the support is 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.”

He submitted that it was clear from the emphasised wording that the mentoring support was, at least in part, designed to facilitate access to education, as opposed to providing education per se.

It was also clear from the emphasised wording in the February decision that at least some of the time provided by the mentor constituted respite, which was not special educational provision.

For provision to be specified in Section F of an EHCP, it must either be direct special educational provision under s.21(1) or, applying s.21(5), deemed special educational provision: East Sussex County Council v TW [2016] UKUT 528 (AAC) at [21-23]. The first failure of the Tribunal was that it did not make clear whether the mentoring provision, insofar as it was to be included in Section F, was direct or deemed special educational provision

Prior to the post-Review Decision, the five hours per day mentoring support had been included in Section H2 of the EHCP as social care provision. The effect of the Tribunal’s post-Review Decision, read in light of the Decision, was to move that provision out of Section H2 and place it into Section F. On that basis, it might reasonably be expected that the Tribunal’s intention was to apply s.21(5) and treat it as deemed special educational provision, although that was not stated in clear terms in the Decision or the post-Review Decision, which made no reference to either s.21(1) or s.21(5).

As per the Upper Tribunal’s guidance in TW at [24], it was the task of the Tribunal to “… identify which parts of social care provision educate or train. Any parts which had that effect must be moved to Section F”. The Tribunal acknowledged at [26] of the Decision that it was not able to say which aspects of the mentoring educated or trained. However, in error, as confirmed by the post-Review Decision, the Tribunal then went on to include all aspects of the mentoring provision in Section F. There was, necessarily, no finding which supported that approach because the Tribunal acknowledged in the Decision that it could not identify the extent to which the mentoring support educated or trained, and in the post-Review Decision it gave no insight into why all of the five hours was devoted to education and training.

Inferentially, it followed that if the Tribunal could not do that then at least part of the mentoring provision was not educational. It was, thus, an error for the Tribunal to find that all of it should be included within Section F as opposed to Section H2. That criticism applied regardless of whether the provision was specified in Section F pursuant to s.21(1) or s.21(5), but the Council submitted that, properly construed, this was a s.21(5) case. Furthermore, to fail to specify the division between special educational provision and social care provision in an EHCP ran against the grain of the general principles in law as to specificity, as summarised in Worcestershire County Council v SE at [74].

Further or alternatively, facilitating access to education was not, without more and in the absence of specific and adequately reasoned findings to that effect, provision which was capable of being included in Section F. In error, the Tribunal included the mentoring provision, or at least a part of it, in Section F of the EHCP on the basis that it assisted with facilitating access to education. That was made clear from the wording at page 17 of the final working document accompanying the post-Review Decision:

“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 with her organisational and planning skills including management of her educational commitments and homework and helping A put into practise strategies she learns as part of her SALT and OT, as well as other independence and communication skills” (emphasis added).

The emphasised wording reflected what was stated in the emphasised wording from the Decision and post-Review Decision cited above, demonstrating that facilitating access to education was an important factor in the Tribunal’s reasoning for placing the mentoring provision in Section F. The Council contended that, insofar as a mentor assisted with accessing education (whether that be physically accessing a site, or assisting with organisation and planning related to accessing education), that was not special educational provision in either a direct or a deemed sense.

Whilst the circumstances were different, the Council relied on the following analogous situations considered in other cases: