Case summary

The parents appealed their child’s EHC plan in the SEND Tribunal. It concerned occupational therapy and how it should be treated – as health care provision or special educational provision.

Occupational therapy can be treated as special educational provision, if it educates or trains the child in some way. This is provided for by section 21(5) Children and Families Act (CFA) 2014.

The parents wanted certain elements of occupational therapy to be specified in Section F as special educational provision. The local authority (LA) agreed some but also said that other elements should be set out in Section G, as health care provision.

The SEND Tribunal:

• refused to order for Section F:
  • provision relating to staff training, timetabling of equipment use, and a moving and handling plan, as these did not educate or train the child in some way
  • sensory integration therapy, as there was no evidence that it was reasonably required
  • proposed LA wording for staff ratios to be dealt with in a risk assessment, because it is required to specify the special educational provision required, not leave this for further assessment, and
  • direct and indirect occupational therapy, because the experts had not explained why they had made their recommendations, and

• ordered Section F to include:
  • provision relating to the occupational therapist working directly in the classroom to suggest equipment position changes, as this would train the child to use her equipment effectively and manage her posture, and
  • provision relating to standing transfers, as these trained the child to maintain posture and move between equipment.

The parents appealed to the Upper Tribunal. The parents said the SEND Tribunal had not asked itself first whether occupational therapy was direct special educational provision under section 21(1) CFA 2014. They also said the reasons the SEND Tribunal gave (when deciding that occupational therapy was not direct special educational provision) were not good enough.

Th Upper Tribunal said the SEND Tribunal’s reasons were rational. It explained why provision did not educate or train. The same reasons would have led to the conclusion that they did not satisfy the test for direct special educational provision.  If the tribunal made a mistake about the order in which it considered provision, that mistake did not affect the outcome of the appeal.

What does this mean?

Direct and deemed special educational provision

The Upper Tribunal looked at the difference between direct and deemed provision, and said the SEND Tribunal’s role differed accordingly:

Type of provision	What this covers	What the SEND Tribunal can do
Direct special educational provision	Educational and training provision which is additional to or different from that made generally for others of the same age in mainstream settings in England (section 21(1) CFA 2014).	It can make its own decisions on what the person’s special educational needs are and what provision is called for in the light of those needs. In doing so, it may add to the provision in Section F of the plan, amend it, or remove it from Section F.
Deemed special educational provision	Health or social care provision which educates or trains a child or young person (section 21(5) CFA 2014).	Here, the SEND Tribunal can only classify the health or social care provision to filter out that part of the provision that is properly classified as special educational provision. It must remove any health/social care provision that educates or trains a child or young person from Sections G or H. It cannot change the provision that remains health/social care provision, or include health/social care provision in Section F. However, it can make recommendations about health and social care provision.

 The Upper Tribunal said a logical approach was for the SEND Tribunal to remove any health/social care provision that educates or trains from Sections G or H before considering direct educational provision. However, it may prefer to consider educational provision before health care provision and that will not be an error of law, provided the Tribunal applies section 21 CFA 2014 correctly when it decides what provision should be where in the EHC plan.

Health care provision

This case reminds us that:

• not all health care provision must be specified in an EHC plan, only that reasonably required by the learning difficulties and disabilities which result in the child or young person having special educational needs. Other health care provision can (but is not required to be) included, and
• health care provision being privately funded is not made by the NHS. If provision is not made by the NHS, there is no duty under section 43(3) CFA 2014 for the relevant health body to arrange it.

Health/social care provision which educates or trains

Whether health or social care provision treats/supports a child or young person’s needs, or educates/trains them depends on the circumstances. It can also both treat and train.

If health or social care provision educates or trains a child or young person, then it is treated as special educational provision even if it also treats the child or young person’s needs.

As such, once specified in Section F, it is the LA’s duty to secure such provision.

Giving reasons and assessing evidence

The SEND Tribunal does not have to accept evidence, even from an expert. It must, though, have a reason for not doing so. Expert evidence is only as good as the reasons for it.

Parents and young people should make sure that their expert evidence makes clear why provision is reasonably required, and why recommendations for provision have been made. If it does not, go back to the expert and ask them to make this clear.

The decision for R and RK v Hertfordshire County Council [2025] UKUT 381 (AAC) is available online.

For more information please see our what should be in the sections relating to education (Sections B and F) and appeals which include health and social care pages.