![[2023] UKUT 177 (AAC)](https://backend.juristeca.com/files/emisores/logo_3a2BKne.png){kind=logo}
The Post-Review Decision
The Post-Review Decision
The Tribunal issued its decision on 20 September 2022 (I shall refer to this decision as either “the Post-Review Decision” or “the September decision”). It identified the issues which it should decide:
“Issues
5. The Tribunal panel agreed that it had the following issues to consider at the review hearing and, if necessary, to review its decision of 23 February 2022:
(a) Removal of duplication of mentoring provision in section H.
(b) Whether A reasonably requires mentoring support as special educational provision which extends beyond the school days (term time, Monday to Friday) and if so, to what extent; and
(c) What social care recommendations can the Tribunal panel reasonably make, based on the evidence?
…
8. The Tribunal panel wishes to be as clear as it can be. The Tribunal panel considers that 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. We have taken into account the updated letter from Mr Corcoran who reaffirms that A has deficits in relation to her executive functioning skills, which lead to significant challenges in managing day to day life, daily living skills and learning. We have no doubt that A requires mentoring support for five hours each day and the provision should be specified in section F. Accordingly, we have amended section H, to remove duplication.
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.”
The Tribunal ordered that the Council should amend Section F of the EHCP for A by replacing the existing wording with the wording set out in the attached working document (version 9). The amended wording read (with emphasis added)
“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 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”.
It also recommended that the Council should amend Section H2 of the EHCP for A by replacing the existing wording with the wording set out in the attached working document (version 9). The duplicated wording referred to in paragraph 11 above was therefore omitted from Section H2.
Further Application For Permission To Appeal
On 15 October 2022 the Council sought permission to appeal against that decision. The application was based on 2 grounds:
- Heading
- Introduction
- Parties
- Test for Permission
- Background
- The Tribunal’s Decision
- The Amended Final EHCP
- Application For Permission To Appeal
- Review
- Written Submissions Before The Review Hearing
- The Review Hearing
- The Post-Review Decision
- Ground 1: The Tribunal erred in its conclusion that the mentoring support during term time constituted special educational provision. Alternatively, to the extent that the Tribunal was entitled to con
- Judicial Review
- Ground 1: the Tribunal erred in its conclusion that the mentoring support during term time constituted special educational provision. Alternatively, to the extent that the Tribunal was entitled to con
- Ground 4: in relation to the Review Decision, Judge Tudur acted in a procedurally improper way and/or in a way which was ultra vires, by setting aside only part of the Decision Grounds 3 and 4
- The Council’s Submissions
- in East Sussex County Council v KS [2017] UKUT 275 (AAC) at [89] the Upper Tribunal held that, even if medical and nursing support was essential for a child to be educated, that did not make it specia
- 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
- Ground 2
- A’s Submissions
- Overall Approach (1)
- Overall Approach (2)
- Ground 1 – mentoring as special educational provision
- Ground 2 – mentoring every day
- The Council’s Reply
- what A failed to address was that the Tribunal did not say whether it was applying s.21(1) or s.21(5) . As the Council had previously pointed out, it was much more likely that the Tribunal was applyin
- A wrongly proceed on the assumption that the Tribunal found that the provision was s.21(1) special educational provision. But, for reasons already set out, the Council did not accept that that was a r
- a need for consistency was generally not to be equated with a need for special educational provision: Learning Trust v MP [2007] EWHC 1634 at [41]. The cases showed that cases where consistency alone
- consistency across settings and consistency of development were not necessarily materially distinct. That still went to the point raised by the Upper Tribunal in Hampshire County Council v JP [2009] U
- Analysis
- at least some of the mentoring support constituted respite, which was not special educational provision (paragraph 40 above)
- Ground 2
- The Exercise Of The Power To Review
- Conclusions