A.) Assuming that the child or young person in question has a disability or a learning difficulty, the correct question at this stage is whether it MAY BE  necessary for special educational provision to be made, NOT whether IT IS necessary for such provision to be made according to the Upper Tribunal in  RB v Calderdale MBC (SEN) [2018] UKUT 390 (AAC).

The requirement to form an initial rather than a conclusive view may seem obvious, but this is an area where many parents and young people still face tremendous difficulties when applying for a needs assessment.

In this case the mother of a young teenager (R) with indeterminate colitis (and consequently a patchy attendance record), applied for her son to undergo an Education, Health and Care needs assessment but the local authority declined on the basis of perceived medical needs and the adequacy of support in his existing school. It is important to note that the young man in question was academically able.

An appeal was then made to the SEND Tribunal but this was dismissed.

Upper Tribunal Judge Rowland granted permission to appeal to the Upper Tribunal and in doing so cast doubt on the SEND Tribunal’s interpretation of ss 20 and 21 The Children and Families Act 2014 (the sections which define special educational needs and special educational provision).

The case then came before Upper Tribunal (UT) Judge Wikeley who, applying the earlier case of Cambridgeshire County Council v FL-J [2016], confirmed that the correct test was the MAY BE and not the MUST test.

It is also interesting to note that the UT Judge looked at the definition of special educational provision given in s 21 The Children and Families Act 2014 and was clear that a narrow curriculum based definition must not apply, which was an error made by the SEND Tribunal.

The Tribunal thus failed to give sufficient weight to the fact that R was not at school at the material time and also failed to consider what provision might be necessary to ensure that he was able to return to school. As such, the Tribunal missed the point that the interventions R required to enable him to return to (and remain at) school (e.g. home tuition and help to address the mental health issues associated with his physical disability), delivered “otherwise than at a school”, “might” have fallen within the definition of special educational provision.


Talem Law

1st March 2019

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