This case concerned the education, health and care plan for a child, T, born in October 1993. T has autistic spectrum disorder, attention deficit hyperactivity disorder, associated challenging behaviour, and anxiety issues. He also has a back problem. T is registered at a specialist independent college on a day placement, but his attendance has been patchy.

It was determined that the First-tier Tribunal’s role was to identify the person's social care provision and then identify which parts of it educated or trained to include in section F. The Upper Tribunal used the terms “direct” and “deemed” special educational provision. “Direct” special educational provision is that which is made in the exercise of the local authority’s education functions. S. 21(5) of the Children and Families Act 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”. The Upper Tribunal described this as “deemed” special educational provision (because despite being provided by health or social care, it is deemed to be educational). The Upper Tribunal stated:

“For direct provision, [the First-tier Tribunal] may make its own decision on what the person’s needs are and what provision is called for in the light of those needs. In doing so, it may add to the provision in the plan, amend it, or remove it. For indirect provision, the task is different. The tribunal’s only role is to classify the social care provision to filter out that part of the provision that is properly classified as special educational provision under section 21(5). …The tribunal only has jurisdiction in so far as it is properly classified as special educational provision… It has no power to change in any way the provision that remains social care provision under section 21(4). Nor has it power to include social care provision in Section F of the plan. All it can do is to include additional direct special educational provision.”

It should be noted that, from April 2018, the First-tier Tribunal will be able to make non-binding recommendations about health and social care provision in an EHC plan. This means their jurisdiction is wider than it was when this case was heard, although they will still not be able to order that additional health or social care provision is made.

The Upper Tribunal also confirmed that L v Clarke and Somerset County Council [1998] ELR 129 applied equally to EHC plans as it did to Statements, in particular that 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 Upper Tribunal also considered a number of points including Section I of T’s plan. The First-tier Tribunal had ordered that Section I should state “A day placement at … College …, together with supported living provided by Brighton and Sussex Care Ltd". It had considered that if the Section only mentioned the college, there was a risk that that placement would break down.

There were several problems with the First-tier Tribunal's amendments to this Section. The most fundamental was that they did not comply with Reg. 12(1)(i) of the Special Educational Needs and Disability Regulations 2014, which provided that Section I had to contain the name or type of institution "to be attended" by the person. Section I identified the form of the provision that was to be made and the body that was to provide it, but it did not identify something that T could attend. Insofar as the First-tier Tribunal envisaged that the supported living would be provided in T's home, that was not permissible within Reg. 12(1)(i). T's home was where he lived and it was not a proper use of language to say that his home was somewhere that was "to be attended" by him. Nor was it a proper use of the word to describe his home as an institution, whatever the specific meaning of that word. It was not possible to put home tuition under s. 61 of the Children and Families Act (which talks about education otherwise than in a setting) in Section I because it did not fit with the language used by Reg. 12(1)(i). Additionally, the First-tier Tribunal was not permitted 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 the sections on what an EHC plan should contain; choosing a school or other setting in an EHC plan; and home schooling and education otherwise.