Tribunal “erred in law” exercising powers to order that Section F of EHC plan be amended to include golf and gym provision

Upper Tribunal Judge Citron concluded: “There is nothing expressly in the tribunal's decision to explain how, or in what respect, [the child's] special educational needs, as set out in Section B, called for, or required, the golf and gym provision.

“Nor can such explanation reasonably be inferred from the tribunal decision, or even the circumstances of the case, as a whole: the golf and gym provision did not address [the child's] severe language disability, or the developmental gap that made her vulnerable.”

However, the judge stopped short of saying such provision could never be special educational provision.

The appeal to the tribunal was made under section 51 and related to an 18-year-old with a diagnosis of a severe language disorder (the claimant/respondent).

The respondent had difficulty with understanding and using spoken and written language, and presented with a significant gap between her chronological age and her general developmental age.

She had attended a mainstream secondary school. A sixth form placement in the school "broke down" and for 19 months she was educated off site, although on the roll for the school.

At the time of the tribunal proceedings, the respondent was having Maths and English online tuition at home, paid for by her parents. Her parents were also paying for golf tuition, golf club membership and golf competition entry fees for her as she was a talented golfer who played for her county and wished to become a professional golfer.

The First-tier Tribunal decision framed the issues to be determined, as follows:

1. very minor issues in Section B (of the EHC plan) regarding some additional wording suggested by the respondent;
2. whether she should attend a post 16 college, or instead have an 'education other than in school/college' "package";
3. whether the golf aspect of the 'education other than in school/college' "package" requested by the respondent could be defined as education;
4. whether she required a personal assistant for 20 hours a week.

Issue 3 was framed as whether the "golf package" requested by the respondent was 'education' or not.

The FTT found that the "golf coaching and practice" and the "gym training" requested was education, but the competitions were not. (Upper Tribunal judge’s emphasis).

The tribunal determined that competitions and associated travel costs would not be included in the 'education other than in school/college' package (indicating that the other parts of the "golf package", would).

Section F of the respondent’s EHC plan, as amended by the tribunal, included: "a package of support that can meet [her] needs and career aspirations, to include: golf coaching, golf practice, gym programme with personal trainer oversight and membership, and golf club membership".

Upper Tribunal Judge Citron said: “I will refer to this part of Section F of [the] EHC plan as the 'golf and gym provision'.”

He gave permission to appeal on the grounds put forward by the appellant local authority, namely that:

• the golf and gym provision was not special educational provision; and/or
• the tribunal failed to give adequate reasons for finding that it was special educational provision required by the respondent.

Judge Citron said: “The central issue in this case, as I see it, is whether the tribunal erred in law in exercising its powers under regulation 43(2)(f) to order that Section F of [the respondent’s] EHC plan be amended to include the golf and gym provision. I have concluded that it did so err.”

He set out his reasoning as follows: “There is nothing expressly in the tribunal's decision to explain how, or in what respect, [the child's] special educational needs, as set out in Section B, called for, or required, the golf and gym provision. Nor can such explanation reasonably be inferred from the tribunal decision, or even the circumstances of the case, as a whole: the golf and gym provision did not address [the child's] severe language disability, or the developmental gap that made her vulnerable.

“On the contrary: the educational aspects of the golf and gym provision catered to areas of strength for [the child], as set out in Section B under the heading 'sensory/physical/medical'. Due to this latter point (the impossibility of inferring any reasonable explanation), I would go further and say that no reasonable tribunal, on the facts of this case, could rationally have decided that [the respondent’s] special educational needs, as set out in Section B of her EHC plan as amended by the tribunal, called for, or required, the golf and gym provision: the connection, or nexus, between them is simply too tenuous.”

He concluded that therefore, the tribunal decision erred in law in ordering inclusion of the golf and gym provision in Section F of the EHC plan.

However he added: “I do not go so far as to say, as the Appellant local authority seems to allege, that the golf and gym provision was incapable, in any case, of being special educational provision - it all depends on the young person in question's special educational needs, and what they call for, or what the young person requires by reason of those needs.”

Turning to disposal, Upper Tribunal Judge Citron said: “Given the material error of law I have identified, the tribunal decision falls to be set aside. If I were to re-make the decision, I would have no difficulty following the tribunal decision's conclusions on Section B, as these were unchallenged.

“As to the tribunal decision's conclusions on Section F, clearly the golf and gym provision falls to be removed; however, it seems to me unsafe to re-make the decision about Section F without stepping back and taking a holistic view of what special educational provision is called for, or required by reason of, the special educational needs in Section B; and it is the specialist tribunal, sitting as a panel with specialist members, that is best placed to do that.

“I have therefore decided to remit the case for reconsideration of the appeal against Sections F and I. The reason I include Section I for reconsideration, despite the tribunal decision not having been challenged on that matter, is that the terms of s61 require that the contents of Section F be known prior to applying that section; it will therefore fall to the tribunal considering the remitted case, to apply s61 afresh in the light of its determination as regards Section F.”

Concluding, he refused an application made on behalf of the claimant/respondent in a skeleton argument that, in the event that the case was remitted to the tribunal for redetermination, the gym and golf provision be “preserved” pending a decision on the remitted case.

He said: “To do so would be inconsistent with my having set the tribunal decision aside on grounds of material legal error. I trust, however, that the tribunal will use reasonable endeavours to list the remitted case for hearing as soon as possible.”

Lottie Winson