Upper Tribunal Administrative Appeals Chamber

[2025] UKUT 323 (AAC)

Fecha: 23-Sep-2025

Relevant case law on extended / waking-day curriculum

Relevant case law on extended / waking-day curriculum

21.

The relationship between Section B and Section F of an EHC Plan was explained by Andrew Nicol QC, sitting as a Deputy High Court Judge in The Learning Trust v MP [2007] EWHC 1634 (Admin)(decided under the materially identical predecessor provisions of the Education Act 1996 and regulations made thereunder) as follows:

[Sections B and F] have been likened to a medical diagnosis and prescription: R v Secretary of State for Education and Science ex parte E [1992] 1 FLR 377, 388-389. It is important then to identify or diagnose the need before going on to prescribe the educational provision to which that need gives rise, and only once the necessary educational provision

has been identified can one specify the institution or type of institution which is appropriate to provide it. Instead, in this case, the Tribunal seems to have settled on the view that a residential school was necessary and expressed the hope that the parties would agree an amendment to the diagnosis for which this was the prescription. I bear in mind that one cannot be over-prescriptive in this regard. If it is clear, for instance, that a residential school is necessary to meet an identified educational need, the precise form of the provision can be influenced by what is available at a particular school – see S v City and Council of Swansea [1999] ELR 315, at 323. However, in the present case, the Tribunal did not, in my view, identify the educational need which required a placement in a residential school.

22.

As will be seen, the argument for the appellants in this case is the reverse of that considered by the High Court in The Learning Trust v MP, in that the appellants submit that the Tribunal in this case erred by determining that a residential school was not necessary without first determining what provision was reasonably required to meet Ali’s special educational needs.

23.

There have been many authorities on this topic since The Learning Trust v MP, but the parties are agreed that Judge Jacobs’ decision in London Borough of Southwark v WE [2021] UKUT 241 (AAC) is the most helpful recent statement of the law in relation to this type of case. Judge Jacobs’ decision begins with a warning:

Waking day curriculum.

If those words do not induce a feeling of dread in a judge of this Chamber, at least they produce a sense of foreboding. Despite the hopes that have been expressed over the years, this case shows that the expression is still being used. More than that, it demonstrates its dangers by providing a stark illustration of how it can lead a tribunal into error.

The danger I am referring to is not unique to this phrase, nor is it new. It has existed for as long as there has been a need to interpret legislation. The problem arises from the use of a non-statutory phrase that distracts attention from the requirements of the legislation. In Environment Agency v Empress Car Co (Abertillery) Ltd [1999] 2 AC 22, the House of Lords was concerned with causation.

Lord Clyde at page 37 explained the danger of substituting a phrase or question for the statutory language:

There may be a danger in enlarging on any definition of what may constitute a cause that particular expressions may become elevated into standard tests which may distract attention from the critical question which the statute requires to be addressed or invite concentration on an issue whose formulation may not quite meet the statutory terms. The use of alternative language to that used by the statute may only lead to debate about the precise meaning of such alternative expressions and obscure the true question.

Indeed, as Lord Hoffmann pointed out in Moyna v Secretary of State for Work and Pensions [2003] 1 WLR 1929 at [23]:

… many words or phrases are linguistically irreducible in the sense that any attempt to elucidate a sentence by replacing them with synonyms will change rather than explain its meaning.

24.

Having set out the legislative provisions, Judge Jacobs continued as follows:-

11.

There is, in other words, a logical chain of analysis from O’s needs to the provision required to meet those needs and then to the institution where that provision can be provided.

12.

An argument for a waking day curriculum straddles Sections F and I. Whether it is required is part of the analysis of special educational provision. Whether the provision for the curriculum requires a residential placement is part of the analysis of placement. As Mr Rylatt accepted, a residential placement is not necessarily required to deliver a waking day curriculum.

25.

Judge Jacobs also noted at [13] the relevance of section 21(5) which, as already set out above, provides that health or social care provision “which educates or trains a child” is to be treated as special educational provision and not as health or social care provision. This is important because it means that social care provision by the local authority in the exercise of its social services functions may in fact be educational provision that belongs in Section F of a child’s EHC Plan rather than Section G if it “educates or trains”, although if it is merely provision of care it will not be special educational provision. There is a wealth of case law on where the dividing line in this respect is to be drawn, and I do not seek to add to it in this case, but see generally Judge Levenson’s decision in East Sussex County Council v JC [2018] UKUT 81 AAC, [2018] ELR 383.

26.

A further question that arises in cases where residential provision is in issue relates to the role of parents. Most parents play a significant role in the education of their children, but the legislative framework for EHC Plans places the duty on the local authority to secure the special educational provision reasonably required to meet a child’s special educational needs. An EHC Plan cannot therefore stipulate that any provision in Section F is to be made by a parent. However, a pragmatic approach has been taken in the case law, with it being accepted that an EHC Plan may detail a need for liaison between school and home and may include arrangements for promoting “consistency of approach” between school and home without that necessarily equating to impermissible provision of education by parents (see A v Cambridgeshire [2002] EWHC 2391 at [60] per Pitchford J). In The Learning Trust v MP, Andrew Nicol QC put it thus:

40.

The Tribunal considered that P needed ‘a clear and consistent approach throughout his waking day to ensure that he was able to access education in school and has opportunities to develop his communication, social and independence skills across all settings.’ However, the need for consistency of approach is not the same as a need for an educational programme beyond the normal school day. This can be illustrated by R (Tottman) v Hertfordshire County Council [2003] EWHC 1725 (Admin) [2003] ELR 763 where the Statement of Special Educational Needs had been determined by the Tribunal in the case of another autistic child whose parents had wished him to attend a residential school. The Tribunal had rejected the parents’ case on the basis that their son did not need programmes of special education throughout the working day. It had agreed (and stated in Part 3) that the child needed a ‘consistency of approach throughout the day and across all settings i.e. home/school/respite care/social activities with regard to programmes.’ It was agreed that there needed to be consistency of approach and liaison between school and home. Moses J. in the High Court and the Court of Appeal (T v Hertfordshire County Council [2004] EWCA Civ 927 [2005] LGR 262 rejected the argument that the Statement was deficient because it did not spell out in more detail what was to happen outside school.

41.

Of course the factual circumstances of cases vary, but Tottman illustrates that a need for consistency is not to be equated with a need for educational provision outside of normal school hours.

27.

The apparent dichotomy between the need for a consistency of approach and the provision of educational programmes continuing beyond the end of the school day is one that has been repeated in a number of authorities since as representing the dividing line between an educational need that can be met within the normal school day and one that cannot. However, in Westminster City Council v First-tier Tribunal (HESC) [2023] UKUT 177 (AAC), Judge West made clear that there is no dichotomy. Holding that the First-tier Tribunal had not erred in law in determining that the child needed 5 hours of mentoring support every day, including outside school term in order to meet the child’s anxiety disorder and promote consistent development of her executive functioning, Judge West observed as follows:

87.

The Council argued that: “The need for consistency, or reinforcement of learning [i.e. a consistent delivery of provision], is not sufficient to establish that an educational need exists for the delivery of education beyond the ordinary school day and term structure.” But that was not the law: the legal point was that a need for consistency of approach beyond the school day did not mean that that was necessarily an educational need: R (TS) v Bowen & Solihull [2009] EWHC 5 at [39]. That did not mean that, in a particular case, a Tribunal could not lawfully decide that a need for a consistency of provision was special educational provision in the circumstances of this young person.

88.

But even that was not pertinent here because this Tribunal was not referring to consistency of provision. It was concerned with provision which would promote A’s consistent development. The Council had confused two entirely different things. …

90.

But, as stated above, even if the Tribunal had concluded that “consistent support” was the issue and that consistent support was all that was needed, then that would still have been entirely lawful conclusion for it to reach on the evidence and facts of this case. The law simply was that a need for consistent support alone was not necessarily enough to make it special educational provision, but that did not preclude it being enough in any particular case.

28.

The parties in this case are agreed that Judge West in Westminster correctly stated the law.