Higher Education and Special Educational Needs

The judgment of the Upper Tribunal in the matter of Royal Borough of Kensington and Chelsea v GG (SEN) has been released.  This judgment is very important for all learners over the age of 16, particularly those who are wishing to secure courses provided by higher education institutions.

This judgment is particularly lengthy because it sets out to provide guidance on the complex relationship between higher education and the regime of Special Educational Needs support introduced by the Children and Families Act 2014.  Within the judgment, the Upper Tribunal Judge sets out that the barrister for the Local Authority in this matter had invited the Upper Tribunal to give guidance on these issues.  The Judge at the Upper Tribunal has agreed to do so given, in his experience, the Upper Tribunal is currently seized of many appeals concerning cases which involve, at least in part, higher education disputes.

It is of no surprise that these appeals keep developing.  The Children and Families Act introduced the notion of “young people” into the Special Educational Needs regime.  That meant that from 2014, young people over the age of 19, but under the age of 25, can still be supported by a statutory document i.e. the Education Health and Care Plan.  Under the Education Act 1996, the statutory support, under the Statement of Special Educational Needs, had to come to an end at the age of 19.

Given, at least in theory, pupils until the age of 25 can receive additional support from their Local Authority via an Education Health and Care Plan it is not surprising that there is on-going dispute in relation to higher education.

Background

This appeal concerned a young man who has complex Special Educational Needs.  He was born in December 1992 but did not seek an assessment of his needs until March 2015, when he was 22 years old.  The judgment records that the young person had diagnoses of autism, obsessive compulsive disorder and speech and language difficulties.  For these difficulties, he was supported with 20 hours per week of one to one support, cognitive behavioural therapy, speech and language therapy and the young person felt that he needed to be educated in a small specialist college.

The judgment does not make any indication as towards whether the young person had previously been supported by a Statement of Special Educational Needs.  Having read the judgment detailing the young person’s needs, we would have thought that this young person almost certainly should have been.

When the Local Authority received the young person’s request for an assessment of his needs, it refused to conduct the assessment.  The decision was on two bases.  Firstly, the Local Authority felt that the young person’s learning difficulties did not require the additional support of an Education Health and Care Plan.  Secondly, the Local Authority felt that the young person was making good educational progress and that it was likely that he would be able to continue his education at university. 

The young person appealed the decision and the Local Authority elected to be represented by a particular law firm renowned for supporting Local Authorities in these instances.  It is notable that the Local Authority comes under some criticism later in the judgment for the manner in which the involvement of their legal representatives was communicated to the Tribunal.

The young person’s appeal before the Special Educational Needs and Disability Tribunal became complicated because of a number of preliminary applications that were filed by the representatives for the Local Authority. 

As a result of the multiple preliminary applications and the difficulties faced by the Special Educational Needs and Disability Tribunal in resolving the issue, the matter was then brought to the Upper Tribunal for determination.  Thankfully, at that point, the representatives for the Local Authority changed and the proceedings seemed to move along more smoothly. 

The Law

There are a number of complicated legal elements to this judgment.  However, in order to understand the judgment it is important to recognise the following points :

• Special Educational Needs is defined by the Children and Families Act at section 20.  That provides that the young person had Special Educational Needs if they have a learning difficulty which calls for special educational provision to be made for them.
• Learning difficulty is further defined as being when a young person has a significantly greater difficulty in learning or has a disability which prevents them from making use of facilities in mainstream schools or mainstream post-16 institutions.
• Special education provision is defined as being any provision which is additional or different to that generally made available in mainstream schools or mainstream post-16 institutions.
• Higher education is exempted from the Children and Families Act, and specifically from the meaning of education.
• Higher education institutions are also exempted from the Children and Families Act meaning that it cannot be named in an Education Health and Care Plan.
• A higher education institution is an institution as defined by section 4 of the Education Act 1996.  This includes universities receiving financial support and an institution conducted by a higher education corporation.
• Higher education is of the form as defined within schedule 6 Education Reform Act 1988 and covers courses which result in qualifications for teaching, post-graduate courses, first degree courses (i.e. undergraduate degrees), diploma of higher education, preparation for a professional examination at higher level, courses providing education at higher level and any examination at a higher level than A levels or BTEC.

Guidance from the Upper Tribunal  

The Upper Tribunal, as explained above, was asked to give guidance in relation to how this legislative background applies, particularly for “young people”.

The issue that was raised by the Local Authority was that it was not required to assess the young person’s needs in these circumstances because the provision that he was requiring was not that which was typically made available to mainstream schools or mainstream post-16. 

The central point being made by the Local Authority in this case was that the young person was already enrolled in a course being provided by a higher education provider.  The young person was attending an independent placement but whilst there was accessing courses which were designed by the Open University. As such, the young person, so said by the Local Authority, was engaged in higher education.

The Upper Tribunal took the view that this was wrong.  The course that the young person was enrolled in did not meet the definition requirements of higher education as set out within Schedule 6 (see above).  The Upper Tribunal further set out that just because the course was delivered by a higher education institution, that did not mean that the course itself amounted to higher education.

Even if a young person is attending a higher education institution, therefore, the relevant question is what course the young person is attending.

Whilst a higher education institution cannot be named in an Education Health and Care Plan, if the course that they are pursuing does not amount to higher education then they may well still be able to access the support under the Children and Families Act and may qualify for an Education Health and Care Plan.

Further, even if a young person is accessing a course designed by a higher education institution, as was the case in this appeal, that again does not preclude them from accessing support from the Children and Families Act.  Again, the question is whether or not the current provision actually amounts to higher education.

The Local Authority also drew reference to the fact that the young person clearly had designs to attend higher education.  The Upper Tribunal noted that it is wholly inappropriate for a Local Authority to restrict the support it makes available to a young person simply because of these ambitions.  The Upper Tribunal made two points in this regard :

• First, section 19 Children and Families Act 2014 requires that the Local Authority should support a young person in achieving the best possible outcomes.  Ambitions to attend higher education should therefore be supported by a Local Authority rather than be used as an excuse to avoid delivery of support further to the Special Educational Needs regime. 
• Young people’s aspirations should not be held to bind them.  The Upper Tribunal took the view that the Local Authority should not hold any young person to any expression of desire that they may make.  It is to be expected that the ambitions and aspirations of any young person can be changeable and to hold a young person expressly to any particular stated ambition would be unrealistic.

Conclusion

This is likely to be an extremely important judgment going forward. 

It means that in all circumstances where a young person is either attended a higher education institution, or wishes to access a course designed by a higher education institution, Local Authorities, and the Tribunal, will need to look very carefully at what that course actually is. 

It also means that parents and young people need to be very clear in their mind in terms of what course it is that the young person is accessing.  There needs to be a careful assessment of whether or not the course that they are accessing amounts to higher education.  If it does, then it is likely that the young person would not be able to access the additional support of the Special Educational Needs regime.  However, if the course does not amount to higher education, then they may well be able to access the support irrespective of the source of that course.

Further, it is interesting to note that whilst a higher education institution may not be named in an Education Health and Care Plan, the mere fact that a young person is attending there does not prevent them from accessing support of an Education Health and Care Plan.  Again, the relevant question will be what course the young person is pursuing.  If the young person is attending at university, but their course does not amount to higher education, then it seems that they may well still be able to access the support of the Special Educational Needs regime.

If you have any questions or queries relating to this issue, or are experiencing difficulties similar to those described above, please do not hesitate to contact our specialist solicitors on 02920 291 704.