The case concerned a 12-year-old boy suffering from spastic quadriplegic cerebral palsy, epilepsy and visual problems. The local authority (“LA”) named a day placement at a special school in his Statement. The parents contended that their son was completely reliant on adult care for his daily needs, both within and outside the school timetable and that his educational needs, including physiotherapy, occupational and speech therapy, required full time residential care. A residential school was ordered by the First-tier Tribunal, and the LA appealed against that decision (first to the High Court and then to the Court of Appeal). Its key argument was that treatment via physiotherapy and occupational therapy was not education and that physical and emotional assistance was outside the remit of educational provision for the purposes of the Education Act 1996 Part IV.

It was decided, dismissing the appeal, that there was a significant degree of overlap between the educational and non-educational, and it was inappropriate to seek to impose a rigid demarcation between the two areas. The higher courts would intervene only where a First-tier Tribunal had erred on a point of law and in this case there was no such error, provided that the decision of the First-tier Tribunal was not mistakenly interpreted to mean that therapies were exclusively educational.

The High Court had considered evidence provided by an educational psychologist who was supporting the parents at the First-tier Tribunal “that the purpose of education for S was to maximise his control over his own environment and that education for S involved a series of over-learning the basic functions of his day: eating, drinking, toileting, dressing, etc and co-operating about them”.  The LA's appeal hinged on the argument that the First-tier Tribunal had been wrong to regard these as educational needs and provisions. The parents argued that education for S would not be to teach him modern languages or physics but “to teach him so that he may be prepared for the very limited work of his life.

The Court of Appeal was supportive of the parents' and the lower courts’ interpretation:

If, as is undoubtedly clear, S needs to learn eating and drinking skills then, as it seems to me, to assist him in learning those skills will be an educational provision for him.

This case is applicable to EHC plans. S. 21(5) of the Children and Families Act 2014 specifically provides that “health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision)”. Such provision should be included in Section F. 

The fact that therapies can be educational based on a wide definition of education was confirmed for those with EHC plans in DC & DC v Hertfordshire County Council [2016] UKUT 379. This case included a finding that Cognitive Behavioural Therapy could be viewed as special educational provision.

No case report is available online.

For more information, see our section on what an EHC plan should contain.