[2025] UKUT 323 (AAC)

I deal with the parties’ last point first: this is not a case where the First-tier Tribunal has in my judgment erred by saying, as it does in [4] of this section of its decision, that there was “no evidence” that Ali required education that extended beyond the school day. The decision needs to be read as a whole and it is clear from the paragraphs that follow that the First-tier Tribunal recognised and accepted that Ali “has benefitted from his time in [School Y]” ([12]) and that “the extended day enables [Ali] to further generalise the skills taught in school” ([11]). Further, at [12] the Tribunal states that it finds “the evidence for an extended day curriculum to be weak”. Superficially, the latter statement directly contradicts what the Tribunal said in [4], but on a fair reading of the whole decision, I consider it to be clear that when the Tribunal said there was “no evidence” that an extended day curriculum was reasonably required, it meant merely that it was not persuaded of the evidence, not that it (wrongly) thought there was “no evidence”.

I also accept in broad terms the respondent’s submission that cases such as this can sometimes properly be resolved by the Tribunal considering whether or not the child is making reasonable progress in all areas in day special school provision because, if so, a Tribunal can legitimately conclude that the child does not reasonably require additional provision.

However, the difficulty in this case is that there was a substantial dispute between the parties as to whether Ali was at School X making reasonable progress in all areas or not, and the nature of the dispute was such that it required consideration to be given to each of Ali’s areas of need separately. Taking a global approach has led the Tribunal into error, in my judgment.

The provision that was in dispute in Section F included whether or not Ali should have a physical environment with appropriate resources available throughout the extended school day as part of continuous provision, whether the continuous provision should include weekends and school holidays, whether he needed extended / 24-hour continuous provision to help him establish daily living and self-care routines, whether he needed his SALT and OT therapeutic support and programmes to be reinforced and embedded throughout the extended day, and whether he needed his sensory diet to be embedded into his extended day.

It was not a sufficient answer to the appellants’ case in respect of those different aspects of provision to say that Ali was on a “general trajectory” of progress at School X. The Tribunal needed to consider, in relation to each element of the Section F provision that was in dispute, whether the particular special educational needs the particular provision was intended to address had been met by the day provision at School X (possibly in combination with the home provision of speech and language therapy and social services) or, if not, what provision was reasonably required to meet Ali’s needs in each respect, in terms of additional hours per week, up to and including an extended or “waking day”.

In particular, as the appellants detailed in their submissions on grounds 1h and 1j (summarised above), they had put before the Tribunal documentation that on its face showed a lack of progress in areas such as communication and interaction, cognition and learning and sensory and physical. The Tribunal in its decision does not mention this evidence, but simply records Ms J’s opinion that Ali had made progress “across the board”. It is not possible to tell from the Tribunal’s decision why the appellants’ case on progress was rejected. Indeed, although the respondent accepts this was a significant issue between the parties at the hearing, the Tribunal’s decision is written as if the nature and extent of the progress that Ali had made at School X was not in dispute, with the Tribunal even stating in the section dealing with the suitability of School X that there were “no concerns” about his progress at School X. I acknowledge that Ms Tkaczynska for the respondent has in her skeleton argument identified documentary evidence of progress, but it is not for me to assess the evidence. The Tribunal needed to explain what it made of the parties’ conflicting evidence and arguments on this critical issue. Just stating that it found Ms J to be “credible” was inadequate by way of explanation for its conclusions.

Further, there was specific evidence of progress that Ali had made at School Y in relation to daily living and self-care skills which, as I understand the evidence, he had not made previously at School X. Or, at least, the appellants’ case was that he had not made this progress previously at School X. This includes the progress detailed in the witness statement of School Y’s Principal regarding progress within the residential care facility at School Y (FTT Bundle, pp 640-641). It includes progress in passing urine on the toilet, allowing staff to change his continence products while standing, using a knife and fork at mealtimes and improvement in tolerating nail cutting, hair cutting, daily bathing and administration of medications. On the face of it, this is all progress towards meeting Ali’s special educational needs in relation to toiletting and self-care. The Tribunal needed to consider whether or not this sort of progress was being achieved previously at School X and, if not, whether the progress was attributable to the additional provision at School Y or just to Ali getting older. The Tribunal then needed to take its conclusion in this respect into account in deciding whether or not Ali’s special educational needs as regards toiletting and self-care could reasonably be met within the ordinary school day and, if not, what extended provision was required in order him to make reasonable progress.

It is also important for a Tribunal to remember in cases such as this that the possible answers to the question of what is reasonably required by a child with special educational needs such as Ali may not be binary, i.e. it is not the case that the only possible answers are either that Ali’s special educational needs “can be met within the ordinary school day” or that a “waking day curriculum” is required. A child may reasonably require additional provision outside of school hours that falls short of a so-called “waking day curriculum”. The level of additional provision reasonably required may be of a nature and quantity that can provided by professionals working within the family home or through respite provision. The Tribunal needs to determine what is reasonably required and specify that in Section F. Only then should it turn to considering placement and whether the provision reasonably required can be made by a day school in combination with input at home from education professionals or trained social care workers or whether a residential placement is required. In this respect, it must be remembered that all or part of a child’s special educational provision may (subject to consultation with the child’s parent) be made outside of school if the local authority, or Tribunal, is satisfied that it is “inappropriate” for it to be provided in school: see section 61 of the 2014 Act.

In this case, it is concerning that the Tribunal considered that Ali requires a substantial social care package outside school hours, but apparently failed to consider whether this provision in Ali’s case constitutes education or training to meet his special educational needs. This appears to be another respect in which the Tribunal failed to recognise the nature of the dispute between the parties. It recorded Ms Burns’ view that there was a “social care need for the family and school to work together” without recognising that this was actually a legal issue that was in dispute between the parties: the appellants’ case for residential school was, in legal terms, a dispute with Ms Burns’ view that what Ali needed by way of extended day provision was social care rather than education. The Tribunal did not engage with this at all. The parties were in agreement that Ali needed at least some provision out of ordinary school hours. The Tribunal needed to decide whether this was a need for education or training reasonably required in order to meet Ali’s special educational needs or whether it was merely a care need. If it was a need for education or training, then the provision (even if it was to be made by social services) needed to be specified as such in Section F and not merely made the subject of a recommendation for provision in Section H1 or Section H2.

I add that I agree with the submission of the appellants that, if and to the extent that, the Tribunal’s reason for concluding that Ali did not require extended provision in order to enable him to make reasonable progress with his toiletting and self-care needs, was that Ali was “only ten years’ old” and “not yet preparing for adulthood”, that reasoning was perverse. Ali’s needs in these areas are ones that reasonably need to be address well before adulthood. The Tribunal’s reasoning would be appropriate if what was in issue was development of independent living skills, but that is not what is in issue in Ali’s case.

I also accept the submission of the appellants that the Tribunal has fallen into the error identified by Judge West in Westminster City Council of proceeding as if there is a dichotomy between a need for “consistency of approach” and a need for “structured educational programmes” continuing beyond the ordinary school day, with only the latter constituting special educational provision. While I note that the Tribunal at [16] correctly stated the law in saying “No witness disputed that [Ali] would benefit from a consistent approach, but this is not necessarily an educational need that is required to be met beyond the school day in a residential setting,” it then continued “We were not persuaded that [School Y] was providing a structured educational programme outside of the normal school hours”, with that latter sentence on the face of the decision constituting the Tribunal’s sole reason for concluding that School Y is not providing education or training outside of school hours. Given the description in School Y’s Principal’s statement of the “waking day curriculum” that School Y at least purports to provide, with therapeutic support integrated into the residential provision, and adult-led activities continuing through the waking day, the Tribunal’s conclusion that this is not educational provision just because it does not constitute “a structured educational programme” is inadequate by way of reasoning. The Tribunal needed to consider whether the provision at School Y amounts to “education or training” within section 21(5) of the 2014 Act and explain its conclusion.

In this respect, I would add that what the Tribunal says about Dr Grace’s report at [13]-[14] does not in my view help explain its decision. At [13] it quotes a sentence from the concluding section of Dr Grace’s report that “[School Y] offers residential provision … that would enable [Ali] to learn and practise all essential skills of daily living …” and then comments on it at [14] by saying:

“This statement does not examine what [special educational provision] [Ali] requires that cannot be delivered during the school day and why that could only be delivered through a 52-week residential placement. An extended day curriculum may be linked with a residential placement, but not necessarily so. Dr Grace appears to conflate the two issues. Dr Grace was not present to expand upon her report. Furthermore, the witnesses from [School Y] also failed to answer that question.”

That reasoning is in my judgment perverse. There is a whole section of Dr Grace’s report that precedes the concluding section quoted by the Tribunal in which Dr Grace makes recommendations for the contents of Section F of Ali’s EHC Plan. These include multiple references to specific provision that she considers should be provided over the extended or waking day, such as a sensory diet to be embedded into the waking day, adult-led activities every 60 minutes “ideally” across the waking day, physical environment with “appropriate resources … available throughout the waking day as part of continuous provision”, “continuous provision [to] include weekends and conventional school holidays in order to prevent the dysregulation and disruption caused by transitions from one environment to another”, SALT to “train [Ali’s] key worker to deliver intensive communication sessions through the waking day”, “extended or 24 hour continuous provision will help [Ali] to establish daily living and self care routines”, etc. When one reads Dr Grace’s report in full, accordingly, the Tribunal’s reasons for rejecting her opinion simply make no sense.

Likewise, the Tribunal’s statement that “the witnesses from [School Y] also failed to answer that question” (i.e. to identify what provision was required after school hours) also makes no sense given that School Y’s Principal’s statement is replete with examples of provision within the residential placement that the Principal considers constitutes a “waking day curriculum” and the Tribunal itself in its reasons at [10] and [11] has summarised the Principal’s oral evidence as to what is provided at School Y by way of consistency of approach and extension of the school day into evenings and weekends that self-evidently cannot be provided by a school operating only during school hours.

In short, the Tribunal’s stated reasons for finding the evidence of Dr Grace and School Y’s witnesses to be deficient make it clear to me that the Tribunal was not applying the proper legal approach. I infer that the Tribunal was wrongly thinking of the provision at School Y as constituting merely provision of a “consistent approach” outside school hours which it wrongly assumed meant it was obviously not educational provision. In fact, the Tribunal had before it a respectable case that School Y is providing education or training outside school hours. The Tribunal was free to reject the appellants case in that respect, but it could only do so if it was able adequately to explain that decision applying the proper legal approach.

It was also, of course, for the Tribunal to decide whether or not Ali reasonably requires any educational provision extending beyond the normal school day, or whether the provision at School Y represents for him more than he reasonably requires, or “Rolls Royce” provision as it is often termed. This remains a case in my view which may ultimately be concluded either way. However, whatever decision the Tribunal reached, it needed to do so applying the proper legal approach and giving adequate reasons for its conclusions. This Tribunal has failed to do so.

Grounds 2 and 3 therefore succeed.