Council fails in Upper Tribunal appeal over mentoring support during non-term time periods

The Upper Tribunal has found that a decision made by the First-tier Tribunal regarding autism mentoring support during non-term time periods did not involve an error on a point of law.

Upper Tribunal Judge West in Westminster City Council v (1) FTT (HESC) (2) A (SEND) [2023] UKUT 177 (AAC) considered whether the First-tier Tribunal has power to review only part of a decision, whether mentoring support during term time constituted special educational provision (SEP), and whether the First-tier Tribunal erred by concluding that mentoring support was required as SEP during non-term time periods.

The parties to the application for judicial review were Westminster City Council, (the Applicant), the First-tier Tribunal ‘HESC’, (the Respondent), and A, the Interested Party.

Judge West said that A is now 22. Her parents supported her in this litigation and acted in her best interests.

A’s original appeal under s.51 of the Children and Families Act 2014 was against the contents of her Education, Health and Care Plan (EHCP).

The Tribunal issued its decision on 23 February 2022 - “the February decision”.

“The Tribunal agreed that the following were the issues on the appeal, although only (b) is relevant for present purposes”, said Judge West.

b) Autism mentor/personal assistant/specialist worker – special educational provision or health/social care provision?

He noted that the local authority’s position on this was that not all of the daily support from the autism mentor/personal assistant/specialist worker trains or educates A and so it was not appropriate for it to be classified, in its entirety, as special educational provision.

A’s parents made the point that the autism mentor provision may provide some respite to the family, but this was an indirect result and not the main aim of the provision. The Tribunal panel accepted this.

As a result of that decision, in the Amended Final EHCP of 9 March 2022, 5 hours of mentoring per day were included in Outcome 2 in Section F.

“A will have up to 5 hours per day with a specialist worker from an organisation such as I-support and/or autism mentors and/or a personal assistant/companion to assist A in accessing her education and travelling independently, helping her with her organisational and planning skills including management of her educational commitments and homework and helping A put into practise strategies she learns as part of her SALT and OT, as well as other independence and communication skills”.

Judge West noted, however, that it “appeared to duplicate the already existing social care provision in Section H2” which read:

“Up to 5 hours of support per day with a specialist worker from an organisation such as I-Support, and/or Autism Mentors and/or a personal assistant/companion, who will work on:

• Assisting A to be more independent of parents, including accessing educational setting and travelling independently”.

The Council sought permission to appeal against the Tribunal’s decision on 23 March 2022.

The inclusion of 5 hours per day in both sections F and H suggested that the provision of the service was to be increased to 10 hours per day, which was not what was agreed and accepted by the Tribunal. That was the only ground of appeal.

On 16 May 2022 the Deputy Chamber President, Judge Meleri Tudur, decided to review the decision of the Tribunal.

She ordered that: “The Tribunal is minded to review the decision issued on the 23 February 2022, to a limited extent”.

On 29 July 2022 the council sent to A’s mother an email explaining that its intention was to provide 5 hours of mentoring in term time only, but only 5 hours per week during the school holidays.

“It did not agree that the provision in Section F meant that A should have 5 hours a day every day of the year, but acknowledged that there was a need for some mentoring provision during the holiday period”, said Judge West.

Both parties made written submissions before the review hearing. The council asserted that at the conclusion of its review, the Tribunal ought to:

A. Remove the duplicative mentoring provision under Section H;

B. Find that the mentoring provision under Section F should be:

i. Monday-Friday, during 38 weeks’ of term time;

ii. With additional limited hours during the holidays (as with the psychotherapeutic counselling and/or OT support)”.

A’s solicitors filed a further written submission on 1 September 2022 which stated that the local authority “also appear to be attempting to significantly reduce A’s mentoring support when there is no evidence at all to justify a reduction”.

The Tribunal issued its Post-Review decision on 20 September 2022.

The Tribunal ordered that the council should amend Section F of the EHCP by replacing the existing wording with the wording set out in an attached working document.

It read that A will have up to 5 hours per day, 7 days per week, 52 weeks per year, with a specialist worker from an organisation such as I-support and/or autism mentors and/or a personal assistant/companion.

It also recommended that the council should amend Section H2. “The duplicated wording was therefore omitted from Section H2”, said Judge West.

On 15 October 2022 the council sought permission to appeal against that decision. The rolled-up hearing was heard on 19 June 2023.

The council put forward 2 grounds of appeal:

• Ground 1: The Tribunal erred in its conclusion that the mentoring support during term time constituted special educational provision. Alternatively, to the extent that the Tribunal was entitled to conclude that some of the mentoring support during term time was special educational provision, it erred by failing to address the extent to which it was special educational provision as opposed to social care provision.
• Ground 2: The Tribunal erred by concluding that mentoring support was required as special educational provision, at all or alternatively to the extent ordered, during non-term time periods.

Counsel for the council submitted that it was “clear from the emphasised wording” [in paragraph 26 of the February decision and paragraphs 8 & 9 of the September decision] that the mentoring support was, at least in part, designed to facilitate access to education, as opposed to providing education per se”.

Paragraph 26 of the February decision said:

“[Her parents] made the point that the autism mentor provision may provide some respite to the family, but this was an indirect result and not the main aim of the provision ... The fourth area is the most significant, in our view – access to education, peers and a meaningful life in and beyond education. As a Tribunal panel, we found it impossible to account for how many of the five hours per day will be educational.”

The council contended that, insofar as a mentor assisted with accessing education (whether that be physically accessing a site, or assisting with organisation and planning related to accessing education), that was not special educational provision in either a direct or a deemed sense. Only to the extent that mentoring educated or trained was it permissible to be included in Section F.

Turning to Ground 1 - mentoring as special educational provision, Judge West noted the September decision at [8] said that:

“The Tribunal panel considers that A reasonably requires five hours of mentoring support per day, in order to support her education and learning. […] We have no doubt that A requires mentoring support for five days each day and the provision should be specified in section F.”

He added that the primary question here was whether for A the mentoring was ‘educational provision’.

Analysing ground one, Judge West said: “Ground 1 relied on two limbs: first, that the Tribunal erred in its conclusion that the mentoring support during term time constituted special educational provision at all; secondly, to the extent that the Tribunal was entitled to conclude that some of the mentoring support during term time was special educational provision, it erred by failing to address the extent to which it was special educational provision as opposed to social care provision.”

He added: “So far as the first limb of Ground 1 is concerned, as to whether mentoring support during term time constituted special educational provision at all, it is important to note that that was not the council’s position at the original hearing in February.

“Nor was the point now asserted made when the council sought permission to appeal against the February decision. […] It only sought permission to appeal in respect of the duplication of the mentoring provision in both Sections F and H.”

The judge noted that permission to take a new point will not generally be granted where the new point would have affected the course of the evidence in the lower court or tribunal.

He concluded: “It is inherently unlikely that the case would have been conducted along exactly the same lines in either February or September had the Council’s position, as now sought to be adopted, been manifest at an earlier stage in the proceedings.

“It is now far too late to raise it for the first time. I do not therefore give permission to rely on that first limb of Ground 1.”

Turning to the second limb of ground 1, the judge noted that the extent to which mentoring support within term time was special educational provision, as opposed to social care provision, was “not in issue before the Tribunal in September”.

He said: “The reasons which I have set out above for not permitting a new point to be raised now apply with equal force to the second limb of Ground 1 and for the same reasons I do not give permission to appeal in respect of it.”

On Ground 2, the council submitted that the Tribunal erred by concluding that mentoring support was required as special educational provision, at all or alternatively to the extent ordered, during non-term time periods. The ground arose out of the September decision.

On this, Judge West said: ““It therefore has none of the problems about raising a new point for the first time so late on in the judicial process associated with the various elements of Ground 1. I am satisfied that the point raised is an arguable one and I grant permission in respect of it.”

Counsel for Westminster submitted that the need for consistency, or reinforcement of learning was not sufficient to establish that an educational need existed for the delivery of education beyond the ordinary school day and term structure.

In response to this submission, Judge West said: “What emerges from the decisions in Hammersmith & Fulham LBC v JH and R(TS) v Bowen & Ors is that a need for consistency of approach beyond the school day does not mean that that is necessarily an educational need.

“That does not mean that, in a particular case, a Tribunal cannot lawfully decide that a need for a consistency of provision is special educational provision in the circumstances of the particular young person”.

He added: “I accept that the Tribunal was not referring to consistency of provision, but was concerned rather with provision which would promote A’s consistent development. In addition, the Tribunal concluded that the mentoring support was required on a daily basis, not only meet A’s anxiety disorder (which is a health need), but also to promote consistent development of her executive functioning skills.”

The judge said that what [the Tribunal] said was that:

“The Tribunal panel has considered the evidence from I Support, as well as the report from Ms Welby Delimere, which, in our view, is sufficient to support the position that A reasonably requires mentoring support for five hours per day, including outside of term time.

“We have concluded that the support is required on a daily basis in order to meet A’s anxiety disorder and promote consistent development of her executive functioning skills, which will also meet her needs relating to extreme avoidance.”

Judge West concluded that “although I accept [counsel for Westminster’s] point that consistency alone would only justify programmes of learning beyond the ordinary school day in extremely rare cases, I am satisfied that the Tribunal’s conclusion was an entirely lawful one for it to reach on the evidence and facts of this case.”

Summing up, the Upper Tribunal judge said: “I refuse permission to appeal in respect of the first ground of review.

“I am satisfied that the second ground of the Council’s remaining ground of review was reasonably arguable and accordingly I grant permission in relation to that ground.

“I am, however, also satisfied that when read as a whole the decision of the Tribunal below does not betray an error of law and accordingly I dismiss the substantive application for judicial review on Ground 2.”

Lottie Winson