[2023] UKUT 177 (AAC)

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 applying s.21(5). Thus, even if it were correct that provision could be special educational provision under s.21(1) despite it not educating or training, that was not the case for deemed special educational provision under s.21(5). (Footnote: ¹)Furthermore, at paragraph 26 of the Decision the Tribunal used the terminology “educate and train”(and also previously at [16(b)] and [24]), suggesting that s.21(5) was being applied. That provided an additional indication that the point made by A was of limited, if any, relevance: this was a s.21(5) not a s.21(1) case.

A appeared to acknowledge that the material question for the Tribunal was under s.21(5) and not s.21(1), but confusingly that was not consistent with what was then said where the contrary position was adopted.

it was irrational simply to treat all of the mentoring provision as special educational provision under s.21(5) when the Tribunal had acknowledged in the Decision that it was not able to say how much of it educated or trained; and the post-review Decision did not give any further insight into why all of it fell within s.21(5).

the Council’s argument was that facilitating access to education was not a sustainable basis for the Tribunal’s conclusion that the mentoring support was special educational provision. A hearing loop (to use A’s example) potentially encountered the same difficulty that a powered wheelchair or nursing support did. Here, the mentoring was social care provision (it was recorded as such in Section H of the EHCP); therefore the question was whether it was social care provision which educated or trained. If it did not, or not all of it did so, then it was inappropriate to specify it in Section F applying s.21(5).