Upper Tribunal allows appeal in “waking day curriculum” case

In HJ and MM v Birmingham City Council [2025], Upper Tribunal Judge Stout concluded that the First-tier Tribunal erred in law by “failing to adopt the necessary logical approach to the issues it needed to decide and by failing to give adequate reasons for its conclusion”.

The appeal concerned a 10-year-old boy, (referred to in the judgment as Ali), who has autism, Down’s syndrome, and severe learning difficulties.

The boy’s parents sought a 52-week residential placement, with educational provision extending beyond the normal school day, known as an “extended day curriculum”.

Birmingham City Council maintained that the child’s needs could be met in a day special school, and the First-tier Tribunal (FTT) accepted that position - finding that complying with parental preference for a 52-week placement at an independent residential special school (School Y) would cost approximately £400,000 per annum and constitute “unreasonable public expenditure”.

The boy’s parents appealed the tribunal’s decision on the following grounds:

• Factual error as to the evidence in relation to regression during school holidays (Ground 1h);
• Factual error as to the evidence in relation to Ali’s emotional regulation and failure to take into account that Ms Burns (the local authority’s Educational Psychologist) had not been involved with Ali since he was in nursery in March 2019 (Ground 1j);
• The First-tier Tribunal failed properly to apply the correct legal test when considering the need for an extended day curriculum (Ground 2);
• The First-tier Tribunal failed to take into account relevant factors when determining if an extended day curriculum is required as special educational provision in Section F (Ground 3);
• The First-tier Tribunal took into account irrelevant factors when determining if an extended day curriculum is required as special educational provision in Section F (Ground 4);
• The First-tier Tribunal failed to give adequate reasons as to why School X was suitable to meet need (Ground 5).

Outlining the appellants submissions, the Upper Tribunal judge said: “Ground 1h concerns the Tribunal’s conclusion in relation to the discrete issue of regression during holidays in Section B of the EHC Plan. The appellants complain that the First-tier Tribunal perversely took into account as part of its reason for concluding that Ali does not significantly regress during school holidays that “[School Y’s Principal] told us that they had not seen him regress during the holidays.

“The appellants point out that as Ali has been attending School Y on a 52-week basis, School Y could not have seen Ali regress during the school holidays and that, far from justifying a conclusion that he does not significantly regress during school holidays, this evidence from School Y was essentially irrelevant to the issue in dispute on Section B.”

On grounds 1h and 1j, the Upper Tribunal judge found: “I do not consider there was any material misdirection as to the evidence in relation to regression. However, it is apparent that the Tribunal’s conclusion on this issue rested heavily on the view it took as to the overall progress that Ali had made while at School X.

“I do consider it has erred in law in its approach to that issue and/or in its reasons, and the failure to acknowledge the limited involvement of Ms Burns in this respect is relevant to that.

These errors are picked up in the course of the other grounds.”

On grounds 2 and 3, the appellants submitted that the First-tier Tribunal failed to take the proper legal approach to considering whether Ali needed an extended day curriculum.

They submitted that the First-tier Tribunal should have considered, in relation to each of his special educational needs, and each aspect of the specific educational provision that was in dispute in Section F of the Working Document, what he “reasonably required” to meet his special educational needs, and whether that constituted education or training so as to be special educational provision that needed to be specified in Section F.

The appellants submitted that the First-tier Tribunal wrongly proceeded from its view that Ali was not at School Y receiving “structured educational programmes” outside the normal school day to a conclusion that he did not require an extended day curriculum.

The Upper Tribunal judge concluded that The First-tier Tribunal erred in law by failing to adopt the necessary logical approach to the issues it needed to decide and by failing to give adequate reasons for its conclusion.

In particular: the First-tier Tribunal: “failed to give adequate reasons for its conclusion that the child was previously making reasonable progress in all areas while at day special school; wrongly adopted a global approach to the question of whether provision outside normal school hours was reasonably required, rather than considering what specific provision was required to meet the child’s various special educational needs and wrongly proceeded on the basis that a need for consistency of approach outside school hours could not of itself equate to a need for education or training outside normal school hours”.

Further, the Upper Tribunal ruled the First-tier Tribunal “wrongly assumed that because the provision the child was receiving in his 52-week residential special school placement did not include structured programmes of education it could not amount to education or training outside normal school hours.”

Ground 4 as a free-standing ground did not succeed. However, the judge noted: “The failure in reasoning is, however, covered in part by grounds 2 and 3 and also by ground 5.”

The Upper Tribunal remitted the case for reconsideration by a fresh tribunal.

Commenting on the relevance of the case, Landmark Chambers said: “This case underscores the danger of treating an “extended day curriculum” as a singular concept. It is an imprecise term and what specific provision it is referring to will differ based on the circumstances of each case, and like in respect of any special educational provision, the FTT must consider the specific provision being sought.”

Leon Glenister and Louise McCormack of Landmark Chambers acted for the successful Appellants, instructed by Samantha Hale of HCB Widdows Mason Limited.