Case overview  

The parents of a child with special educational needs appealed to the Upper Tribunal after the SEND Tribunal decided not to approve the amendment they were seeking to his Statement of Special Educational Needs (this was an earlier version of an education, health, and care (EHC) plan). The appeal was dismissed because the provision the parents wanted to include (psychological support to address mental health problems) was not educational, as it did not provide instruction or training.

What does this mean?

Under section 21 (5) of the Children and Families Act (CFA) 2014, health or social care provision which educates or trains a child or young person is to be treated as a special educational provision. In this case, the Upper Tribunal helpfully suggested mindfulness training and cognitive behavioural therapy as examples of therapy provision which can be educational.

However, it is important to know that decisions about particular provisions can be different in each case, and the SEND Tribunal is able to use its specialist expertise to decide whether a provision is educational. Guiding local authorities on how to apply section 21 (5) CFA 2014, paragraph 9.74 of The Special Educational Needs and Disabilities Code of Practice 2015 states.

“Decisions about whether health care provision or social care provision should be treated as special educational provision must be made on an individual basis…”

Whilst Statements have been replaced with EHC plans since this case, the principles remain the same, meaning this case is applicable to EHC plans. 

The full case report for DC & DC v Hertfordshire County Council (SEN) [2016] UKUT 0379 (AAC) can be viewed online. 

For more information, see our pages on what an EHC plan should contain and what are special educational needs.