[2023] UKUT 177 (AAC)

The Tribunal issued its decision on 23 February 2022 (I shall refer to this decision as either “the Decision” or “the February decision”). The appeal was allowed. The Tribunal ordered that

the Council should amend Sections B and F of the EHCP for A by replacing the existing wording with the wording set out in the attached working document (version 8)

the Council should name Lionheart Education, a post 16 institution, in Section I of the EHCP for A.

It also recommended that the Council should amend Sections C, G and H of the EHCP for A by replacing the existing wording with the wording set out in the attached working document (version 8).

At paragraph 16 the Tribunal agreed that the following were the issues on the appeal, although only (b) is relevant for present purposes:

“(a)

Assessments as provision;

(b)

Autism mentor/personal assistant/specialist worker – special educational provision or health/social care provision?

(c)

Indirect speech and language and occupational therapy provision during school holidays;

(d)

Education otherwise than in a post 16 institution;

(e)

Psychotherapeutic counselling - special educational provision or health provision?

(f)

Is Lionheart Education capable of being named in section I?; and

(g)

Health and social care recommendations.”

With regard to issue (b) the Tribunal stated that

“17.

We heard oral evidence from [A’s parents]. In this academic year, A has continued to receive extensive scaffolding support from both of her parents who have been working from home, along with her weekly sessions with Ms Welby-Delimere. A had a breakdown in March 2021 and A and her parents worked very hard to get her to a point where she could reengage with education. She has managed that and is making good progress at Lionheart. There have been many years of ups and downs with A’s education, but [her parents] felt that she is now at a point where she is comfortable with the educational environment and her tutors. A requires structure and when she isn’t attending Lionheart, she finds it very difficult to cope and requires round the clock support. She cannot attend an environment that she has not visited or with which she does not feel comfortable. If anything goes wrong, the day will be completely derailed. [Her mother] cited an example from that week – A’s art tutor had to change the day for their tutorial and it meant A was not able to attend Lionheart the day before the hearing or on the day of the hearing. [Her parents] see A’s education structure as a pillar which supports everything else with her skills development.

…

Autism mentor/personal assistant/specialist worker – special educational provision or health/social care provision?

24.

The LA’s position on this was that not all of the daily support from the autism mentor/personal assistant/specialist worker trains or educates A and so it is not appropriate for it to be classified, in its entirety, as special educational provision. There is no dispute from the LA that A reasonably requires this provision to meet her needs more holistically. I Support is providing five hours per day in the form of functional behaviour analysis. This is now in place following some dispute over funding and payment of invoices.

25.

We noted that the LA has previously agreed provision in section F which ensures there is liaison between A’s autism mentor, therapist and education setting, as well as the autism mentor implementing a number of programmes to increase A’s skills, including her daily living and independence skills.

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 Tribunal panel accepted this. We reviewed the reports from I Support, the service that has been providing behaviour analysts, as the five hours of support per day which was commissioned by the CCG following a CAMHS referral in 2019. Mr Corcoran’s email dated 21 May 2021 was helpful in understanding the programme, as well as his view that the provision covers all aspects of A’s life, noting, in particular, her mental health and wellbeing, community participation and development of social skills – all three of those areas are listed as educational outcomes for A. The fourth area is the most significant, in our view – access to education, peers and a meaningful life in and beyond education. This most accurately encapsulates the point – that the autism mentor provision (which I Support is currently providing) covers all aspects of her life, not least her access to education. As a Tribunal panel, we found it impossible to account for how many of the five hours per day will be educational. We accepted the recommendations from the I Support report dated 11 October 2021 and the positive behaviour support plan which provide proactive strategies for communicating with A and, crucially, teaching A organisational skills, making informed choices, independent living skills, and social skills and relationships. All of these areas feature in her current educational outcomes. We took into account the observation from Ms Julia Terteryan, occupational therapist – that once A has the support of a regular mentor on a daily basis, it is likely that her occupational therapy can decrease. This led us to the clear conclusion that the provision of an autism mentor is reasonably required in order to educate and train A. This was further strengthened by the recommendations that A’s autism mentor attends her speech and language and occupational therapy sessions in order to support A to attain the goals in the therapy programmes. Accordingly, the provision should be specified in section F of her EHC plan.”