Case overview

Following an application by Westminster local authority (LA), the Upper Tribunal upheld a decision made by the SEND Tribunal that mentoring support during non-term time periods can be special educational provision.

The LA argued that the need for consistency, or reinforcement of learning was not enough to establish an educational need for the delivery of education beyond the ordinary school day and term structure.

The Upper Tribunal Judge confirmed that although a need for consistency of approach beyond the school day will count as an educational need on its own in extremely rare cases, it’s possible for consistency of provision to be special educational provision in a particular case and circumstances.

The Upper Tribunal Judge pointed out that the daily mentoring provision to meet  the young person’s anxiety disorder would also promote the consistent development of their executive functioning skills. So, in this case one of the issues was the young person’s development being consistent and not regressing, rather than them needing a consistent approach.

The Judge’s guidance also said something which supports or facilitates education may be special educational provision.

On the evidence in this case, the SEND Tribunal was not wrong to decide that without mentoring support every day, it was more likely than not that the young person’s needs would not be met and that this was special educational provision she required.

What does this mean?

This case establishes that, where there is sufficient evidence, provision outside of term time which is required to promote a child or young person’s consistent development or supports their education may be special educational provision.

This case was a judicial review challenging the SEND Tribunal’s review of the final decision in a SEN appeal. It provides clarity on the SEND Tribunal’s power to review all or part of a decision. IPSEA volunteers: If this is relevant to a parent you are helping, please seek support from the legal team.

The full case report for Westminster City Council v (1) FTT (HESC): (2) A (SEND): [2023] UKUT 177 (AAC)  is available online.

For more information see our page on What should be in the sections relating to education (Sections B and F).