Tribunal orders Local Authority to provide provision outside of term time

In Westminster City Council v (1) FTT (HESC) (2) A (SEND) [2023] UKUT 177 (AAC), the FTT had ordered the EHC Plan in dispute to be amended to include the provision of 5 hours of autism mentoring per day in Section F and duplicative wording in section H, i.e. doubling the provision. The Council appealed and the relief sought was:

1. The removal of the duplicative mentoring provision in Section H;

2. A finding that the mentoring provision in Section F should apply to:

3. Monday-Friday during 38 weeks of term time; and

4. With additional limited hours during the holidays.

In short, the Council’s case was that five hours of mentoring per day, 7 days a week, 52 weeks a year would benefit A but was not necessary special educational provision.

The Tribunal ordered that the duplicative wording in section H be removed and that section F be amended to provide A with mentoring for 5 hours per day, 7 days per week, 52 weeks per year.

The Tribunal concluded that there was sufficient evidence to demonstrate that daily mentoring support for 52 weeks was reasonably required. The outcomes in Section E were unlikely to be met without consistent out of term provision: A’s learning and progress would regress without daily support to her anxiety disorder, extreme avoidance and the development of her executive functioning skills.

As this was a review decision, the Council’s only remedy was a claim for judicial review to the Upper Tribunal. The relevant ground of challenge was that the Tribunal erred by concluding that mentoring support was required as special educational provision, at all or alternatively to the extent ordered, during non-term periods. The Council argued that the need for consistent mentoring or reinforcement of learning was not sufficient to establish that an educational need existed for the delivery of education beyond term time.

In response, Judge West noted that whilst it is correct that the need for consistency of approach does not necessarily mean there is an educational need, a Tribunal could lawfully decide that there is a need in the circumstances of a particular young person. The First-Tier Tribunal made its decision after considering provision which would promote A’s consistent development. Further, the daily mentoring support was required for both A’s anxiety disorder (a health need) and the consistent development of her executive functioning skills (an educational need). As such, the Upper Tribunal concluded that the First-Tier Tribunal’s decision was lawful based on the facts of the case and the claim for judicial review was dismissed.