The case of East Sussex County Council v JC (SEN): [2018] UKUT 81 (AAC) heard earlier in the year looked at the distinction between health care provision and special educational provision and raised the possibility that some seemingly settled assumptions are open to challenge.
The decision can be found HERE, but it will be useful if we look at a summary.
One of the issues before the SEND Tribunal was whether the motorised/ powered wheelchair (unhelpfully referred to as an inanimate object) used by a young man (William) with a number of impairments was special educational provision. They also considered whether the maintenance and repair of the chair was also special educational provision. The expert evidence before the tribunal confirmed the importance of the chair to the young man’s education. It is worth remembering that, if Williams chair was unavailable due to fault, he could not attend college.
Williams parents maintained that the wheelchair did educate and train William as he had to learn how use the chair and also it developed his skill to independently find his way round the college he attended.
The SEND Tribunal decided that the chair was health care provision (the traditional view) whilst its maintenance was special educational provision on the basis that, if the chair didn’t work, he couldn’t be educated. The local authority was unhappy and appealed to the Upper Tribunal.
In the Upper Tribunal the Judge was not pleased with the separate classification given to the chair and its maintenance and repair by the SEND Tribunal and for this reason the LA’s appeal succeeded. That said, rather than simply say that both were health care provision he left the matter to be decided by a new Tribunal. He did make the point that there was nothing to stop William’s chair being classified as special educational provision if there was evidence that it educated and trained him and the skills he obtained could not be gained in a very short time (like learning to make a cup of tea).
This is in line with s21(5) The Children and Families Act 2014 which states that:
“Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision)”
Any health care or social care provision allocated to a child or young person should be evaluated in terms of whether it educates and trains and a view should be taken as to whether the said provision should be classified as special educational provision. These classification issues are not insignificant since providing special educational provision cannot be constrained by budgets whereas other types of provision can be. Further the non-provision of special educational provision is more easily addressed.
Talem Law
10th August 2018