Case overview 

This case was heard in the Upper Tribunal, which decided that the SEND Tribunal had made mistakes when making decisions about sections F and I of a young person’s education, health and care (EHC) plan. These mistakes are called ‘errors of law’.  

The SEND Tribunal had not given adequate reasons for deciding the young person’s social care provision was to be treated as special educational provision.

The SEND Tribunal had also been wrong to order for Section I to state “A day placement at XX College …, together with supported living provided by Brighton and Sussex Care Ltd". The SEND Tribunal had done this because it was worried that if Section I only mentioned the college, there was a risk of the placement breaking down.

What does this mean?  

Section F

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. 

However, as made clear in London Borough of Bromley v Special Educational Needs Tribunal [1999], this does not mean that all therapies are always educational. Decisions about whether a therapy or social care provision is educational can be different in each case.

Guiding local authorities on how to apply section 21(5) CFA 2014, paragraph 9.74 of The Special Educational Needs and Disability 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…” 

The SEND Tribunal must give reasons for the decisions it makes, including where it decides a health or social care provision is special educational provision.

Importantly, the Upper Tribunal also confirmed here that L v Clarke and Somerset County Council [1998] ELR 129 applies equally to EHC plans as it did to Statements of Special Educational Needs (an earlier version of an EHC plan). In particular, they should be “so specific and so clear as to leave no room for doubt as to what has been decided is necessary in the individual case”.

The SEND Tribunal can now make recommendations about health and social care sections of an EHC plan, meaning its powers are wider than when this case was heard.

Section I

Regulation 12(1)(i) of The Special Educational Needs and Disability Regulations 2014 states that section I must contain the name or type of institution "to be attended" by the person.

Regarding the supported living, section I identified the type of provision to be made and the body that was to provide it, but it did not identify somewhere that the young person could attend. The SEND Tribunal had imagined the supported living would be provided in his home, but it was found that it was not a proper use of language to say his home was somewhere that was "to be attended" by him, or to describe his home as an ‘institution’. Additionally, the SEND Tribunal is not allowed to add information to Section I to avoid the risk of a placement breaking down.

The full case report for East Sussex County Council v TW [2016] UKUT 528 can be viewed online.

For more information, see our pages  on what an EHC plan should contain; choosing a school or other setting in an EHC plan; and home schooling and education otherwise.