Upper Tribunal SEN Case Can Home be Placement in EHCP

The Upper Tribunal recently considered an appeal on the Education Health and Care Plan for a young man in East Sussex [LINK]. The judgment included the following:

“Theo’s home is where he lives. It is not a proper use of language to say that his home is somewhere ‘to be attended by’ him. Nor is it a proper use of the word to describe his home as an institution, whatever the specific meaning of that word” 

Specialist solicitor Ed Duff has commented that “The issue of whether home tuition can be named in an EHCP is new. The Education Act specifically permitted it. The Upper Tribunal has noted that the Children and Families Act has no equivalent provision enabling home tuition to be named.” 

I will be seeking clarification from Stuart Miller at the Department for Education, but meanwhile here is my take on the UT decision and the repercussions for elective home education and for home-based education agreed and funded by the local authority.

My own view is that the part of the judgment dealing with “naming home education” relates solely to Section I. The Upper Tribunal ruled that it was not legitimate to put a home care package into Section I because “supported living” is not A TYPE OF INSTITUTION.

The young man in the case is 23 years old and has autistic spectrum disorder, attention deficit hyperactivity disorder, associated challenging behaviour, and anxiety issues. His placement at a specialist college was in danger of breaking down. Careworkers help him in his home and this also supports his attendance at college.

There are three options for social care provision in an EHCP. It might all go in Section H, OR in Section F, OR some parts may go in F and some parts in H.

 

MORE ON EXACTLY WHAT THE REGULATIONS SAY ABOUT EACH SECTION OF THE EHCP HERE

Form of EHC plan

12.—(1) When preparing an EHC plan a local authority must set out—

(a)the views, interests and aspirations of the child and his parents or the young person (section A);

(b)the child or young person’s special educational needs (section B);

(c)the child or young person’s health care needs which relate to their special educational needs (section C);

(d)the child or young person’s social care needs which relate to their special educational needs or to a disability (section D);

(e)the outcomes sought for him or her (section E);

(f)the special educational provision required by the child or young person (section F);

(g)any health care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having special educational needs (section G);

(h)(i)any social care provision which must be made for the child or young person as a result of section 2 of the Chronically Sick and Disabled Persons Act 1970(1) (section H1);

(ii)any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having special educational needs (section H2);

(i)the name of the school, maintained nursery school, post-16 institution or other institution to be attended by the child or young person and the type of that institution or, where the name of a school or other institution is not specified in the EHC plan, the type of school or other institution to be attended by the child or young person (section I); and

(j)where any special educational provision is to be secured by a direct payment, the special educational needs and outcomes to be met by the direct payment (section J),

and each section must be separately identified. […] 

(3) Where the child or young person is in or beyond year 9, the EHC plan must include within the special educational provision, health care provision and social care provision specified, provision to assist the child or young person  in preparation for adulthood and independent living.

(4) The advice and information obtained in accordance with regulation 6(1) must be set out in appendices to the EHC plan (section K).

The Upper Tribunal Judge said  “social care provision is to be treated as special educational provision, and not as social care provision, if it educates or trains a young person. This is what I call deemed special educational provision.” 

Children and Families Act 2014 

21 Special educational provision, health care provision and social care provision                                                                                                                   

(5)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).

Judge Jacobs added that “In order to apply section 21(5), the tribunal must identify the person’s social care provision – this should be clear from Section D of the plan – and then identify which parts of social care provision educate or train. Any parts that have that effect must be moved to Section F” […]

The Judge went on to say “It is, for example, difficult to understand, at least without more specific findings on the nature of the provision and an accompanying explanation, why helping with anxiety is of itself educational provision. The other possibility is that the tribunal considered that all aspects of Theo’s social care educated and trained him, in which case the tribunal failed to make findings and provide an explanation to show that that was so. Either possibility is an error of law.” 

It’s not relevant to Section I but in my view the Upper Tribunal does not apply the test of  Regulation 12 (3) for including social care provision in Section F.

(3) Where the child or young person is in or beyond year 9, the EHC plan must include within the special educational provision, health care provision and social care provision specified, provision to assist the child or young person  in preparation for adulthood and independent living.

It seems that in place of any reasoned argument as to why social care should be included in Section F [education/training/preparation for adulthood etc), the First Tier Tribunal instead opted to name the care agency in Section I and to describe the young man’s flat as “an off college site residential setting.”

After the First Tier Tribunal, Section I read as follows:

1. For the TYPE of placement                                                                                                                  “An independent specialist day college working together with an off college site residential setting” and 
2. For the NAME of the placement                                                                                                         “A day placement at … College …, together with supported living provided by Brighton and Sussex Care Ltd” 

When the case came before the Upper Tribunal Judge Jacobs ruled that NEITHER the “off college site residential setting” (which refers to the young man’s own rented flat) NOR the supported living provision  could legitimately be included in section I because this did not comply with regulation 12 (1)(i) of the Special Educational Needs and Disability Regulations 2014.

Regulations for the Children and Families Act 2014 

Regulation 12 Form of EHC plan

(1) When preparing an EHC plan a local authority must set out—   [..]                                                                

(i) THE NAME of the school, maintained nursery school, post-16 institution or other institution to be attended  by the child or young person AND THE TYPE of that institution OR, where the name of a school or other institution is not specified in the EHC plan, THE TYPE  of school or other institution to be attended by the child or young person (section I) 

Judge Jacobs said:

“That subparagraph provides that Section I must contain the name or type of institution ‘to be attended by’ the person. […] there must be something that is ‘attended by’ the person”

The  judge went on to say that

“The phrase ‘supported living provided by Brighton and Sussex Care Ltd’ identifies the form of the provision that is to be made for Theo and the body that is to provide it. It does not identify something that Theo can attend. […] in so far as the tribunal’s version envisages that the supported living will be provided in Theo’s home, that is not permissible within regulation 12(1)(i). Theo’s home is where he lives. It is not a proper use of language to say that his home is somewhere ‘to be attended by’ him. Nor is it a proper use of the word to describe his home as an institution, whatever the specific meaning of that word”

John Friel acting for the family argued that a local authority may approve home tuition under section 61 of the Children and Families Act 2014.

The judge said “That may be so, but it does not follow that the home can properly be entered into Section I. It does not fit into the language used by regulation 12(1)(i), which deals with just the type of school or institution that must be inappropriate in order for section 61 to apply.” 

Judge Jacobs added: “I am grateful to Judge Melanie Lewis, who gave permission to appeal in the First-tier Tribunal, for drawing to my attention a change in the wording of the legislation. Section 61 re-enacts and extends section 319 of the Education Act 1996. 

Education Act 1996 

319 Special educational provision otherwise than in schools.

(1) Where a local education authority are satisfied that it would be inappropriate for—                          

 (a)the special educational provision which a learning difficulty of a child in their area calls for, or                

 (b)any part of any such provision, to be made in a school, they may arrange for the provision (or, as the case may be, for that part of it) to be made otherwise than in a school.

Children and Families Act 2014 

61 Special educational provision otherwise than in schools, post-16 institutions etc

(1) A local authority in England may arrange for any special educational provision that it has decided is necessary for a child or young person for whom it is responsible to be made otherwise than in a school or post-16 institution or a place at which relevant early years education is provided.                                                

(2) An authority may do so only if satisfied that it would be inappropriate for the provision to be made in a school or post-16 institution or at such a place.

Judge Jacobs continued “Section 324(2)(c) of that Act required that the statement of special educational needs should: specify any provision for the child for which they [the local authority] make arrangements under section 319 and which they considered should be specified in the statement.”

(Although it seems to me that this actually comes under s 324 (4)(c))

Education Act 1996 

324 Statement of special educational needs.                                                                                                                      

(4)The statement shall—                                                                                                                                                   

(a)specify the type of school or other institution which the local education authority consider would be appropriate for the child,                                                                                                                                                            

 (b)if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement, and                                                  

 (c)specify any provision for the child for which they make arrangements under section 319 and which they consider should be specified in the statement.

Judge Jacobs noted that the 2001 SEN Regulations pick up on this as follows. “Schedule 2 to the Education (Special Educational Needs) (England) (Consolidation ) Regulations 2001 (SI No 3455) required this to go into Part 4 of the Statement.” 

Judge Jacobs concluded that “There is, as Judge Lewis pointed out, no equivalent in the 2014 Act. That confirms my analysis.” 

In other words, there is nothing in the 2014 Act about specifying provision in the placement section.

Judge Jacobs interprets Regulation 12 as saying that whatever is named or given as a type in Section I must in fact be a school or an institution and not something else.  That is what Judge Jacobs means when he says that the young man’s home “does not fit into the language used by regulation 12(1)(i)” 

In my view the judge was NOT making a broader point. In particular he was not saying that provision to be delivered in the home (whether education or care or health) might not be specified in the EHC Plan.

 

With reference to home education, the new SEN Code of Practice accompanying the 2014 Act envisages two different types of “home education.” [LINK] 

My home education and SEN website is here http://www.ehe-sen.org.uk/ 

One option – set out in 10.32 – is where parents take responsibility for making provision, with no help from the LA, which is what home educators would usually understand as “home education”.  The other possibility – set out in 10.31– is where the local authority agrees the arrangements and takes responsibility for funding the provision.

For the 2014 Children and Families Act the Code of Practice says that the Plan should be amended to say that parents have made their own arrangements. It has been widely assumed that since this follows the TYPE of school, it will be in Section I although this is not explicitly stated in the 2015 Code. 

2015 Code of Practice 

10.31 In cases where local authorities and parents agree that home education is the right provision for a child or young person with an EHC plan, the plan should make clear that the child or young person will be educated at home. If it does then the local authority, under Section 42(2) of the Children and Families Act 2014, must arrange the special educational provision set out in the plan, working with the parents. Under Section 19 of the Act, a local authority must have regard to the views, wishes and feelings of the child and his or her parents, or the young person.

10.32 In cases where the EHC plan gives the name of a school or type of school where the child will be educated and the parents decide to educate at home, the local authority is not under a duty to make the special educational provision set out in the plan provided it is satisfied that the arrangements made by the parents are suitable. The local authority must review the plan annually to assure itself that the provision set out in it continues to be appropriate and that the child’s SEN continue to be met (see Chapter 9). Where the local authority has decided that the provision is appropriate, it should amend the plan to name the type of school that would be suitable but state that parents have made their own arrangements under section 7 of the Education Act 1996.

This is in contrast to the 2001 Code which specifically said that reference to parents making their own arrangements should go in Part 4.

2001 Code of Practice 

8:96 In such situations section 324 (4A) of the Education Act 1996 does not require the name of a school to be specified in part 4 of the statement. Part 4 should state the type of school the LEA consider appropriate but go on to say that: “parents have made their own arrangements under section 7 of the Education Act 1996.” 

I will be asking the Department for Education:

In light of the fact that the Upper Tribunal has ruled “it does not follow that the home can properly be entered into Section I. It does not fit into the language used by regulation 12(1)(i), which deals with just the type of school or institution that must be inappropriate in order for section 61 to apply.” 

1. Does regulation 12(1)(i)  limit what can be included in Section I to the NAME and TYPE of school or institution, and if so does this mean Section I can’t say parents have made their own arrangements as per 10.32 (If so, which Section of the Plan WOULD say this?)
2. Does  regulation 12(1)(i)  permit Section I  to  “make clear that the child or young person will be educated at home” as per 10.31 (And if not, which Section of the Plan WOULD say this?)

NB The East Sussex judgment has a number of other interesting features (eg waking day curriculum; section 61 education otherwise than at school or post-16 institution; ‘direct’ special educational provision versus ‘deemed’ special educational provision (social care provision which educates or trains to be treated as special educational provision); and post-19 EHCPs to name but a few) but in this blog post I am only looking at what was said about the inclusion of the HOME in the Plan.

(I have noted in passing that the East Sussex judgment says surprisingly little about preparation for adulthood and independent living as special educational provision)

My website dedicated to home education and special educational needs is here

http://www.ehe-sen.org.uk/

 

 

 

 

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