Residential schools, home tuition and special educational needs

The judgement for East Sussex County Council v TW has been released.

This relatively short judgement is likely to be very important for:

• Special educational needs (SEN) appeals seeking residential schools
• SEN appeals discussing home tuition
• Deciding what special educational provision is

The decision comes from the Upper Tribunal. It is the local authority’s appeal against the decision of the Special Educational Needs and Disability Tribunal.

The local authority had complained that the Special Educational needs and Disability Tribunal (SENDIST) had made an error in law. The complaint was that the Tribunal had not properly considered the questions of what special educational provision is, misapplied the law about residential schools and waking day curriculum and had incorrectly named a care home in Section I of the young person’s Education Health and Care Plan (EHCP).

The Upper Tribunal does not go into detail on the facts. However, this decision does provide useful exploration of the law about SEN provision, waking day curriculum and residential schools.

What is special educational provision?

The Upper Tribunal judge uses the phrases “direct” and “deemed” special educational provision.

Direct special educational provision is taken to mean ‘pure’ special educational provision. For example, TAs, additional teacher time, resources in class etc.

Deemed special educational is taken to mean provision which is provided by health services, or social care, that has the effect of educating or training the young person. The function of the SENDIST will be to determine whether health or social care provision has the effect of educating and training.

This case makes clear that the SENDIST will need to give clear and careful explanation of how that decision has been made. It is also important that a social care package, or health package, is not treated as a ‘whole’. The SENDIST must look at each provision and explain why the provision is, or is not, a special educational provision.

Both direct and deemed special educational provision will go into Section F of a young person’s Education Health and Care Plan (EHCP).

There has for sometime been a general acceptance that if a young person is attending a special school, a degree of flexibility is permitted in Section F. The reasoning being that the staff of a special school are able to modify the provision in an appropriate way, so flexibility is desirable. The judgement refused to agree to that, reminding that an EHCP must be a detailed and specific document setting out the special educational provision that is necessary.

Waking day curriculum / residential school

During this case, there was some objection to the use of the phrase ‘waking day curriculum’ as it is vague. The judge describes it as being necessary when a young person requires special educational provision beyond ‘normal’ school hours.

This case causes some difficulty for appeals seeking a residential school setting on the basis of ‘deemed’ special educational provision.

On the facts of this case, the judge seemed convinced that the direct special educational provision called for special educational provision beyond school hours. What the judge was not sure about was whether the social care provision, which was deemed special educational provision, could require special education provision outside of school hours. That is because it was not necessary for the support to be delivered in a programme from the educational placement.

This will be particularly important for cases which are seeking residential school settings on the basis of the development of independent living skills and/or community skills. What parents will need to do is to establish what programme that provision will be, and why the school, rather than another body, must provide that programme.

What goes into Section I

Section I of the Education Health and Care Plan confirms the type of educational placement and may also name a specific placement.

In this case, the SENDIST ordered a day placement, along with supported living provided by a private Care company. The Upper Tribunal said that this is wrong for three reasons:

• The SENDIST made an error by naming additional provision in Section I to prevent the educational placement breaking down.
• Section I is the placement “attended by” the young person. There is no clarity that the young person would “attend” the care provision
• It is not correct to name a young person’s home in Section I. It is not correct in law, or general use of language, to say a young persons “attends” at their home.

Home tuition

The third point above calls into question the possibility of naming home education in Section I of the EHCP.

The Upper Tribunal has noted that a local authority may agree to home tuition further to section 61 Children and Families Act 2014, but the judgement questions whether it is possible to name home tuition in Section I as the young person’s home is not an institution, nor do they ‘attend’ there.

The issue of whether home tuition can be named in an EHCP is new. The Education Act specifically permitted it. The Upper Tribunal has noted that the Children and Families Act has no equivalent provision enabling home tuition to be named.

If you are experiencing difficulties as set out above or otherwise in securing additional support for your child from the Local Authority, then please do not hesitate to contact our specialist education law solicitor team on 02920 291704.