This was the issue which was examined by the Upper Tribunal in the case of GL v West Sussex CC (SEN) [2017] UKUT 414 (AAC) which considered this question of the meaning and proper application of the expression “educates or trains” in the context of section 21(5) of the Children and Families Act 2014(“CFA 2014”).
Legal Framework
Section 21(5) CFA 2014 states “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).”
In addition, Judge Wilkeley also drew heavily on the analysis in the recent case of East Sussex County Council v TW (SEN) [2016] UKUT 528 (AAC); [2017] ELR 119 where (amongst other things) this matter was also considered.
Background Facts and Analysis
In summary the case involved a 17 year old lady who, along with her mother, argued that she needed a “waking day” curriculum, to be delivered in a specialist residential placement; ‘waking day’ means to a curriculum that extends across all waking hours. The Local Authority (“LA”) argued otherwise and they were successful with regards to placement when appearing before the First-tier Tribunal (Special Educational Needs and Disability) (“SEND Tribunal”).
The case is significant since, hitherto, it was being argued that section 21(5) CFA 2014 now allowed for health and social care provision to “drift” into section F of an Education Health and Care Plan (“EHCP”) along with the rest of the special educational provision also by simply arguing that it had an education or training purpose; to assist with this synopsis, I will refer to this process as “drifting”. This is advantageous since, unlike special educational provision, there is no appellant mechanism for disputes over health and social care provision as exists in the SEND Tribunal.
In any event, in a decision which requires a little navigating, the Upper Tribunal Judge stressed the following:
- section 21(5) of the CFA 2014 was not a clean break from the past, and should be interpreted using authorities relating to largely erstwhile statute, The Education Act 1996.
- “Drifting” is not an easily applied general principal, rather as is stated in para 9.74 of the Code of Practice “Decisions about whether health care provision or social care provision should be treated as special educational provision must be made on an individual basis.”
- It follows from the above, drifting decisions must be supported by clear and unambiguous expert evidence. What did not support the appellant in the Upper Tribunal was that the evidence provided by the educational psychologist they instructed endorsed a waking day curriculum as being the “optimal option” and this clearly did not impresses either the First-tier or Upper Tribunal. Indeed reading the decision, one does get a sense that this was where the appellant’s case fell down and the “legal arguments” seems somewhat peripheral.
It may well that this matter may find itself in the Court of Appeal in the near future; that said, the above points are should be noted when appealing to the First-tier Tribunal.