[2023] UKUT 177 (AAC)

Both parties made written submissions on 22 August 2022. In the case of the Council it submitted that

“7.

At a telephone case management hearing on 12 August 2022, Judge Brownlee proposed that the Tribunal would conduct the Review on the basis of the Respondent’s 23 March 2022 application and include the question of the provision of support to A outside the school term.

SUBMISSIONS

Duplication of provision

8.

The Respondent asserts it is clear that there has been an error in failing to remove the provision of autism mentoring support from Section H of the Working Document. The Tribunal determined at paragraphs 24-26 of the Decision, under the heading: “Autism mentor/personal assistant/specialist worker- special educational provision or health/social care provision” that “the provision should be specified in Section F of her EHC plan”.

9.

There are no findings in the Decision dated 23 February 2022 to suggest that A required 10 hours’ support per day and there is no evidence to support this level of provision.

10.

As a result, the Tribunal should remove the duplicative entry from Section H.

Extended provision

11.

The wording ordered by the Tribunal in Section F is as follows:

“A will have up to 5 hours per day 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 to put into practice strategies she learns as part of her SALT and OT, as well as other independence and communication skills (emphasis added)”.

12.

The source of this wording was the Report from I-Support, dated 11 October 2021 (see para 26 of the Decision and Hearing Bundle page 454). The predominant focus of the wording is on A’s education and needs resulting from education, namely: organisation and planning, management of educational commitments, and homework.

13.

Only provision which is reasonably required to meet a child or young person’s educational needs can be permissibly named within Section F. Whether a need is educational or non-educational is a question for the Tribunal (London Borough of Bromley v SENDT [1999] ELR 260); the Tribunal determined in the Decision that the autism mentor provision was special educational provision (para 26).

14.

The Tribunal should apply the case law applicable to “waking day curriculum” to the issue of provision during the holiday. Whilst extended provision may offer benefits or advantages, it does not follow that it is provision which is reasonably required to meet special educational needs.

15.

See Hampshire CC v JP [2010] ELR 213 at paragraph 27:

“Equally on the other hand, it would be inappropriate to reason from the fact that the care needed by N outside normal school hours would reinforce what had been learned during the school day that N needed a “waking day curriculum” [read: provision during the holidays for these purposes] with the overtones of education that the word “curriculum” carries. Where children do not have special needs, they are not regarded as always being at school rather than on holiday merely because much play and engagement in leisure activities outside school hours may have an educational value and support what is taught at school.”

16.

Further, consistency, i.e. to be dealt with out of school hours/terms in the same way as within school hours, is not necessarily an educational need (see LB Hammersmith and Fulham v JH [2012] UKUT 328 (AAC) at paragraphs 18-19). The recommendation of Mazza Welby-Delimere on 9 June 2021 (Hearing Bundle pages 401-402) that mentoring be continued “during the holiday periods, so that A can be supported in maintaining a structure to her day and to continue putting the strategies into practise” goes no further than a suggestion that A would benefit from consistency.

17.

There is no evidence that A reasonably requires extended educational provision i.e. in the school holidays. Thus, anything beyond that proposed by the Respondent would not be special educational provision but social care and ought not to be included in Section F.

18.

The Respondent’s position is that the 5 hours’ mentoring support ought to be provided between Monday-Friday during the 38 weeks of term time, as it is special educational provision, not social care provision, with additional limited hours for the carrying over of therapy programmes that take place during the holidays. This level of provision would be in line with the other provision in Section F, for example, the wording for psychotherapeutic counselling is as follows:

“A will have one 60-minute session per week of psychotherapeutic counselling, throughout the 30 weeks of the academic year. She will receive one 60-minute session of counselling for every three weeks of the school holiday. She will receive one 60-minute session in the week before her return to her education setting (emphasis added)”.

…

20.

The Respondent asserts that at the conclusion of its Review, the Tribunal ought to:

a.

Remove the duplicative mentoring provision under Section H;

b.

Find that the mentoring provision under Section F should be:

i.

Monday-Friday, during 38 weeks’ of term time;

ii.

With additional limited hours during the holidays (as with the psychotherapeutic counselling and/or OT support)”.

In response to the Council’s submission, A’s solicitors filed a further written submission on 1 September 2022 which stated that

“2.

The Local Authority also appear to be attempting to significantly reduce A’s mentoring support when there is no evidence at all to justify a reduction. Further, they did not raise this issue at the Hearing or in the Appeal. The Local Authority accept that A was entitled to 5 hours per day support under social care but now, despite the Tribunal’s Decision, are interpreting that Decision as meaning that only some of that support is educational and therefore the Section F provision should be limited. Specifically, the Local Authority at para 17 of their latest submission claim that any mentoring outside their narrow interpretation of the Section F provision (which the Appellants do not consider to be a proper interpretation of the Tribunal’s judgement) is social care. But, at the same time, the Local Authority want to remove all entitlement to mentoring from the social care section, including any weekend and holiday cover, and including a number of references to matters which are clearly independence skills (and which the Appellants seek to have transferred, for clarity, to Section F). The Local Authority’s position is entirely illogical as, if their argument was followed to its logical conclusion, it would mean that the EHCP should specify 5 hours weekdays during term time (with the limited holiday cover as well) and the social care section should stipulate mentoring support on weekends and holidays. Instead, they are arguing that, despite A having always required and received weekend and holiday support, it is deleted from all sections of her EHCP. This would leave her with no weekend or holiday support under either social care or Section F, save for the limited in scope 5 hours per week during the holidays.

…

4.

What the Local Authority state in their submission regarding the very limited scope of what falls within special educational needs is simply incorrect. Paragraph 26 of the Tribunal’s Decision made clear that the Section F provision was much more wide ranging than simply access to education and homework and that A's special educational needs encompassed all aspects of her life, many of which skills are set out as educational outcomes for her. If she is required to meet an educational outcome but not provided with the necessary support to do so, she is being set up to fail. Further, it cannot be right that, given A’s age (21) the necessary independence and life skills she requires to function as an adult are not educational. The Tribunal specifically accepted that the required mentoring in Section F covered "all aspects of her life" and the Section F wording specifically mentions wider independence skills including requiring the implementation of recommended Functional Behavioural Skills and PEER to PEER programmes by ISupport/the mentor. It is simply not correct that the Tribunal interpreted A's wider needs as non-educational. It is also simply not right for the Local Authority to argue that A does not reasonably require assistance during the weekends and holidays when all reports stress the need for this help. The Tribunal’s Decision clearly held that A’s wider needs, including independence and functional behaviour skills, were educational and therefore all mentoring should be within Section F. Given A’s profile and level of required support, it is also incorrect that her mentoring support should be removed during weekends and holidays. As highlighted below, reports from A’s therapeutic team (ISupport and others) are clear that A’s needs are such that weekend and holiday support is not only reasonably required but critical.

5.

Furthermore, the Local Authority’s reference to case law is not relevant to the circumstances of this case. In particular, the analogy made by the Local Authority to the case of Hampshire CC v JP [2010] ELR 213, whereby a young person without special needs, who engages in play outside school which may have educational benefits. is simply not relevant here given A’s well documented level of educational need on a year round basis. It is required on a year round basis to enable A to receive the level of support she clearly requires and this has never been disputed before by the Local Authority. Therefore, the Local Authority’s references to case law are unhelpful. This is not a ‘’waking day’’ case and all that matters is exactly what A needs. Those needs are well documented and are such that she needs year round support, which has never before been disputed by the Local Authority,

…

7.

Page H27 of the I Support October 2021 report contains a specific paragraph on A’s needs during non-school days (for example the report acknowledges that “On non-school days, there always needs to be a plan or structure and someone available to assist A throughout the day) and elsewhere in the report (see pages H65 and H66, for example) are comprehensive sections on the education and training she needs with independent living skills and the need for structure and support in a very wide range of areas and notably on the importance of A being engaged in meaningful activities with support”. The report is clear that the mentor needs to educate and train A in a wide range of independent living skills and functional behavioural skills, self-care, and social communication amongst other matters. The report expressly states on numerous occasions the need for a mentor to educate/train A in learning these skills so that she can progress to independence. The Tribunal accepted that education/training with those independent living and functional behavioural skills constituted special educational provision. It is simply untrue for the Local Authority to represent that I Support sees the provision as purely dealing with access to education and homework etc. In fact, the report confirms the opposite and ISupport’s position has always been that not only does she require that assistance year round, but the scope of mentoring duties should fall within special educational provision, given A’s profile and level of need. If A’s mentoring is reduced as the Local Authority now seek to interpret, her needs will clearly not be met. A’s needs are such that it is critical that she receives year round mentoring support as otherwise she will simply not have the necessary time or support to learn the critical life skills that she requires”.