Case overview   

A local authority (LA) appealed (first to the High Court and then to the Court of Appeal) against a decision made by the SEND Tribunal to name a residential school in a child’s Statement of Special Educational Needs (this was an earlier version of an education, health and care (EHC) plan. The SEND Tribunal had agreed with the child’s parents that his educational needs and provision including physiotherapy, occupational and speech therapy, required full-time residential care. 

The LA argued that the provisions the child required were not educational provisions. 

The LA’s appeal was dismissed because it was found there is a significant overlap between what is educational and non-educational, and it would be inappropriate to separate the two areas rigidly.

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. 

The higher courts will only intervene where the SEND Tribunal has made a mistake on a point of law. In this case, there was no such mistake, but it was made clear that the decision must not be interpreted to mean that all therapies are always educational. This means that decisions about whether a therapy 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 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 fact that therapies can be educational based on a wide definition of education was also confirmed for those with EHC plans in DC & DC v Hertfordshire County Council [2016] UKUT 379.  

There is no case report available online.  

For more information, see our pages on what an EHC plan should contain, when therapy is classed as a special educational provision and what are special educational needs.