Upper Tribunal judge examines relationship between educational provision and healthcare provision in SEN appeal about occupational therapy

The case of R & RK v Hertfordshire [2025] UKUT 381 considered the provision of occupational therapy (OT) to M, a 6-year-old disabled child.

Shortly following her birth, M suffered a cardiac arrest as a result of negligent medical treatment. The cardiac arrest led to profound hypoxic ischemia. M has been diagnosed with severe bilateral cerebral palsy. She is visually impaired and has learning difficulties.

Health care provision is set out in Section G of M’s Education, Health and Care Plan (EHCP).

Upper Tribunal Judge Jacobs said that in the plan under appeal, there was no mention of occupational therapy in Section G, but there were some references in Section F (special educational provision) to “necessary adaptions as advised by the Occupational Therapist or Physiotherapist.”

In a working document before the First-tier Tribunal, M’s parents had proposed a number of references to occupational therapy be included in Section F. Some were agreed by the local authority.

On this issue, the First Tier Tribunal concluded: “We considered that some of the provision requested by the parents was health provision, rather than educational provision. Occupational therapy is health care provision and we must be satisfied that it educates and trains M, within section 21(5) of the Children and Families Act, if we are to include it in Section F.”

Judge Jacobs gave M’s parents permission to appeal on two grounds:

• Ground 1: That the FTT misapplied section 21 of the Children and Families Act 2014. "Mr Persey [counsel for the appellants] argued that the tribunal went wrong in law by not asking itself first whether occupational therapy was direct special educational provision. Direct special educational provision means provision that satisfies section 21(1) or (2). This is in contrast to health care provision as defined by section 21(3), which may be treated as special educational provision by virtue of section 21(5).”
• Ground 2: That the FTT gave inadequate reasons for deciding that occupational therapy was not direct special educational provision under the section. "Mr Persey argued that the tribunal failed to explain: (a) why all occupational provision is health care provision; and (b) why even if it is health care provision it is not direct special educational provision."

On the issue of classification, the Upper Tribunal judge observed: “Even a nodding familiarity with some of the cases that deal with classification of provision is sufficient to show that it is not always straightforward….

“I am not going to formulate a test, still less a definition, but perhaps the essence of classification depends on how closely connected a provision is to the delivery of education in a particular case.”

Judge Jacobs said two points followed from the example of speech therapy in R v Lancashire County Council ex parte M [1989] 2 FLR 279.

“First, I do not read the Court as saying that a local authority, or a First-tier Tribunal nowadays, has a free choice about how to classify a particular provision. What the Court said was that, depending on the circumstances, speech therapy might treat or it might educate. That depends on whether the statutory definition is satisfied or not. I accept that there is a judgment involved in classification, and where there is judgment, there is scope for a difference of views. I refer to judgment rather than to discretion, which [counsel for the appellants] used, in order to avoid any suggestion that there is a choice.

“Second, although the Court did not say so, there is no reason why a provision cannot fulfil both functions of education and treatment, as speech therapy would for a child who had never been able to speak. Translating that point into the terms of section 21, there can be overlap between educational provision and health care provision. Section 21(5) makes provision for this. It provides for health care provision that educates or trains to be treated as special educational provision instead of health care provision. It then comes within section 37(2)(c) and the local authority becomes responsible for securing the provision under section 42(2). It is also appealable under section 51(2)(c)(i). This is explained in the code of practice [at paragraph 9.76].…”

Subsequently, considering the differences between ‘educational provision’ and ‘educates and trains’, the Upper Tribunal Judge noted: “The legislation distinguishes between ‘educational provision’ in sections 20(1) and 21(1) and (2) and ‘educates or trains’ in section 21(5).

“The different language, in the same section, indicates that the expressions have a different meaning. The example I have used in other cases is an arrangement to help a child hear. This does not itself educate or train the child, but it is educational provision as it provides a means by which the child can participate in a lesson.”

Judge Jacobs said the distinction was necessary “in order to render the disability element in section 20(2)(b) effective. This provides that an educational need may arise from a disability that prevents or hinders use of a facility generally provided for children of the same age”.

He continued: “It is possible, even perhaps likely in the case of physical disabilities, that the provision will not of itself educate or train. A wheelchair cannot help a child learn French. This does not mean that the distinction is only relevant to cases based on disability rather than learning difficulty. The point I am making is that educational provision can be wider than education and training.”

Upper Tribunal Judge Jacobs said there is a practical difference between direct educational provision under section 21(1) and deemed education provision under section 21(5), something he explained in East Sussex County Council v TW [2016] UKUT 528 (AAC), which concerned social care provision rather than health care provision.

The judge said his reasoning applied equally to both. In TW, Judge Jacobs said:

24. When a case comes before the First-tier Tribunal, the local authority may already have applied section 21(5). If not, the tribunal must apply it and, if necessary, move the relevant provision from Section D to Section F. 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.

25. The nature of the tribunal’s task differs between direct and deemed special educational provision. For direct provision, it may make its own decision on what the person’s needs are and what provision is called for in the light of those needs. In doing so, it may add to the provision in the plan, amend it, or remove it. For indirect provision, the task is different. The tribunal’s only role is to classify the social care provision to filter out that part of the provision that is properly classified as special educational provision under section 21(5). The tribunal has no jurisdiction over the social care provision as such, because section 51 does not provide for an appeal. The tribunal only has jurisdiction in so far as it is properly classified as special educational provision, at which point it comes within section 51(2)(c). It has no power to change in any way the provision that remains social care provision under section 21(4). Nor has it power to include social care provision in Section F of the plan. All it can do is to include additional direct special educational provision.

The Upper Tribunal said: “Mr Lawson [counsel for Hertfordshire] was right to say that ‘Allowing the Tribunal to change text for services provided by social care or health care could lead to extensive decisions made about bodies [such as the NHS] that are not parties or represented …’ That is consistent with my analysis of jurisdiction.

“There is, therefore, a difference between direct and deemed special educational provision. I accept that education will typically or usually involve instruction, although I hesitate to say that it always does so. But educational provision can be wider than education.”

Judge Jacobs said matters were more complicated at the appeal stage. “This is because the legislation is written from the perspective a local authority drafting an EHCP and does not particularise how the tribunal should approach the issues raised on an appeal.”

He said: “Section 51 of the 2014 Act….. simply provides for an appeal against any of the matters listed. For this case that means an ‘appeal to the First-tier Tribunal against … the special educational provision specified in the plan’ (section 51(1) and (2)(c)(ii)). How does that work when health care provision is involved?

“There is no provision in section 51 for an appeal against the health care provision specified in an EHCP. So, how should the tribunal deal with occupational therapy, assuming that it is within the meaning of section 21(3)? The tribunal has no power to insert it into the EHCP. One possibility is that the tribunal can only consider whether the provision is direct special educational provision. That would make the tribunal’s powers depend on the chance whether the provision had been included by the local authority.

“In other words, it would limit the tribunal’s jurisdiction to deciding on the proper classification of the provision already in the plan. Another possibility is that the tribunal has to undertake a notional exercise by first assuming the occupational therapy was included as health care provision and then classifying the provision that should be moved to the special educational provision section. I did not have argument on these, or other possible, options.

“I did, though, have argument on the order in which the tribunal had to apply section 21. More accurately, I had argument on the order in the tribunal should consider direct and deemed special educational provision.”

Dealing with this separately, Judge Jacobs considered the order in which the various subsections of section 21 of the Children and Families Act 2014 should be applied.

The Upper Tribunal judge said: “My analysis has shown that there is the possibility of an overlap between educational provision and health care provision. The scope for overlap is reduced when section 21(5) is read in conjunction with the limitation in section 37(2)(d). But there is still the possibility. The practical application of the provisions may be different. That will depend on the circumstances.”

Judge Jacobs said he did not accept the order in which the different types of provision are decided makes no difference.

“The tribunal has to remove any health care provision that educates or trains from Section G. This is necessary in order to relieve the responsible commissioning body of the duty to arrange that provision under section 42(3). This can only be authorised by section 21(5). Logically, therefore, the tribunal should undertake that exercise before considering direct educational provision. That approach will also prevent duplication of effort.”

The judge said: “As a matter of practicality, the tribunal may prefer to consider educational provision before health care provision. That will not be an error of law, provided the tribunal applies section 21 correctly when it decides what provision should be in which section of the ECHP.”

He added that he would take a practical approach to disposal of the case.

Considering the occupational therapy that the FTT decided was health care and not special educational provision, Judge Jacobs said the tribunal in each case summarised the evidence, stated and explained its conclusion.

“All of those reasons were rational,” he said. “They explained why the 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.”

Dismissing the parents’ appeal, Judge Jacobs concluded: “The tribunal appears to have dealt with the case under section 21(5). Its reasoning supported the tribunal’s decision on that basis and it would have supported it if the tribunal had been considering direct provision. Putting that into legal language, if the tribunal made a mistake about the order in which it considered provision, that mistake did not affect the outcome of the appeal.”

Lottie Winson