B vs Isle of Wight Council (1997)

This is probably the only case to reach the High Court on the issue of whether physiotherapy and occupational therapy can be special educational provisions, as opposed to medical provisions. In giving his decision, the judge made the following comment:

“No doubt the council were right to accept that some occupational therapy and some physiotherapy might be educational in some cases, but I cannot think this would be other than exceptional.”

This is an unfortunate comment and reveals a certain lack of experience on the judge’s part, given that for a great many children with special educational needs (for example, those with cerebral palsy), therapies are central to the special educational provision. Not surprisingly, this is the part of the judgement most often quoted by LEA officers.

Parents and their advisers, however, should be aware of a further comment made by the judge, which can be quoted in support of the view that these decisions can only be made on an individual basis.

“All that anyone can do when judging whether a ‘provision’ is educational or ‘non-educational’ is to recognise that there is an obvious spectrum from the clearly educational (in the ordinary sense of that word) at one end to the clearly medical at the other, take all the relevant facts into account, apply common sense and do one’s best.”

By putting it this way, the judge was establishing criteria for making a decision on occupational therapy and physiotherapy very similar to the criteria set out in the Lancashire judgement on speech therapy -- that is, it all depends on the nature of the needs of the individual child.

“There is an obvious spectrum from the clearly educational (in the ordinary sense of that word) at one end to the clearly medical at the other, take all the relevant facts into account, apply common sense and do one’s best.”

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