EAM v East Sussex County Council

The parents who are the appellants in this case have been before me in two cases raising different but related issues. Both cases arise from their concern that their daughter has electromagnetic hypersensitivity, particularly associated with wifi signals, with the result that she needs a low electro-magnetic environment for her schooling. I am going to refer to ‘the child’ or ‘their daughter’ in order to reduce the chances of her being identified. This case concerns her need for an Education, Health and Care Plan, which has been an issue since 2017. It has involved decisions by two local authorities, three hearings before the First-tier Tribunal, and two appeals to the Upper Tribunal.

As far as I can tell, the parents requested an Education, Health and Care Plan for their daughter in August 2017. In July 2018, the First-tier Tribunal allowed an appeal against the local authority’s refusal to secure an EHC needs assessment for the child. It directed the authority to secure an assessment. In February 2019, the authority completed the assessment, but decided that a plan was not necessary on the ground that: ‘it is felt the identified needs can be met by provision which is routinely available at the educational setting through existing support mechanisms and without the need for an EHC plan.’ That decision came before the First-tier Tribunal in November 2019. It was the decision of this tribunal that I set aside under reference HS/0395/2020. I directed a rehearing, which was held in November 2021, this time with a new local authority as respondent. I am now deciding the appeal against the decision of that tribunal.

If I have unravelled the history of the case correctly, it concerns an appeal to the First-tier Tribunal against a decision, following an assessment, that it was not necessary for special educational provision to be made for the child.

These are the relevant provisions of the Children and Families Act 2014. All statutory references in this decision are to that Act unless otherwise stated.

Disability

A person (P) has a disability if—

P has a physical or mental impairment, and

the impairment has a substantial and long-term adverse effect on P’s ability to carry out normal day-to-day activities.

A reference to a disabled person is a reference to a person who has a disability.

The tribunal identified three issues that it had to decide. First, whether the child had a disability under section 20(2)(b). Second, whether she required special educational provision under section 21(1). Third, whether it was necessary for special educational provision to be made in accordance with a plan under section 37(1).

On the first issue, the tribunal decided that the child was disabled under section 6 of the Equality Act and under section 20(2)(b). On the second issue, it decided that she did not require special educational provision under section 21(1). That rendered it unnecessary to deal with the third issue. However, the tribunal went on to deal with it, so that the Upper Tribunal could re-make the decision if necessary. It gave the view that if a low electro-magnetic environment was special educational provision, then it was necessary for provision to be made in accordance with a plan under section 37(1). The tribunal refused to take account of the difficulty that the local authority would have in identifying a school and the cost involved on the ground that those matters were irrelevant.

I have decided that the tribunal went wrong in law and that I should re-make its decision. I will first explain why I have set the tribunal’s decision aside and then explain how I have re-made the decision.

Section 21(1) defines ‘educational provision’. Section 21(5) refers to ‘health care provision … which educates or trains a child’. Those expressions are different, but the First-tier Tribunal’s reasons used the terms as interchangeable and treated authorities on the latter as relevant to the former. That was wrong.

A provision may be educational without itself educating a child. The word means ‘of, pertaining to, or concerned with education’ to quote the Oxford Shorter English Dictionary (fifth edition). The difference is easy to demonstrate. Suppose a teacher is giving a lesson to a class. One pupil in the class has impaired hearing and wears a hearing aid. The school has installed a loop system and the teacher uses a microphone. With the hearing aid on the T setting, the pupil can hear the lesson. The microphone and the loop system are both educational provision. But they do not themselves educate the pupil. The hearing aid may be both an educational provision and a health care provision, but again it does not educate the pupil. The teacher and the contents of the lesson educate the pupil.

In this case, the correct term for the tribunal to use was ‘educational provision’. It is only relevant to decide whether a provision ‘educates a child’ if it is also health or social care provision.

Accusing a specialist tribunal of making the kind of mistake I have requires me to justify doing so. Here is a sequence of passages that show the tribunal muddling the two expressions and the authorities. This is the beginning of paragraph 54:

On the plus side, the tribunal did set out section 21 and there are places in which it used the correct expression, as it did in paragraph 52 when identifying the issue the tribunal had to decide. And it used the correct expression later in that paragraph: ‘a low arousal environment … would usually be considered to be special educational provision’. There are also instances where the language used was probably a slip, as in paragraph 53: ‘any modification to the school environment … did not amount to education or training provision.’

Overall, there are unmistakeable signs of confusion in important parts of the tribunal’s reasoning. They cannot be excused or explained, in the context of the reasons as a whole, as infelicitous expressions of the correct test; they are too clear for that. The tribunal misdirected itself on law and did so in a way that affected its reasoning on one of the issues it had to decide. Here is the proof in paragraph 56:

There is another problem with the tribunal’s reasoning. At the start of the final hearing, the tribunal presented the parties with two examples for comment. It recorded them in paragraph 52:

It can be useful to think of a range of examples, some clearly educational and others clearly not, in order to identify the characteristics of each category. It can also be useful to adjust the examples to make them less clear cut, in order to sharpen the focus on the factors that are decisive. That is how I have approach this case as I worked out by reasoning.

What the tribunal did was different. It set up two examples as the framework for analysis. That may have had the effect of limiting the way that the parties thought about the case and presented their arguments or it may not. But it is clear that the tribunal expressed itself by reference to the examples when it explained its decision in paragraph 57:

The tribunal was right that there were similarities and differences between the low electro-magnetic environment and the examples it was using. But that did not necessarily mean that those similarities and differences were decisive. The tribunal’s approach led it to take too narrow a view of what was and was not educational provision. In particular, it concentrated, perhaps without realising it, on the cognitive aspects of learning.

Education involves learning knowledge and acquiring skills. A variety of factors may impede different elements of that process. The Special Educational Needs and Disability Code of Practice: 0 to 25 Years of 2015 was made under section 77. It sets out four broad areas of need that conveniently bring together and classify the factors that can hinder a child’s education.

The tribunal said that it had taken account of the Code (paragraph 17), as it was required to do so under section 77(6), which provides that the First-tier Tribunal ‘must have regard to any provision of the code that appears to it to be relevant to a question arising on an appeal’. It would have been useful if it had discussed those paragraphs.

As I turn to re-make the decision, I can put aside the possibility of an overlap between special educational provision and health care provision. Section 21 deals with this by providing for health care provision to be treated as special educational provision. But there is a proviso: this only applies to health care provision that ‘educates or trains a child’. Ms Walker expressed concerns about the potential impact on a local authority if section 21(5) were applied. Those concerns are misplaced in view of the provision sought in this case and the proviso.

The proviso is an important limitation on section 21(5). That subsection does not apply just because health care provision involves educational provision. It only applies if health care provision itself educates a child. That is a general point. Coming to this particular case, the provision sought is a wired internet connection. That will not be health care provision as defined in section 21(3), because the NHS does not recognise the child’s condition as a medical one. And the provision of a wired connection does not of itself educate her. The result is that section 21(5) is irrelevant.

I now come to the other issues.

The tribunal found that the child was disabled within the definition in section 6 of the Equality Act and section 20(2)(b). I accept and adopt its analysis. I have some concern in doing so because of the nature of its reasoning. In part, its analysis was an unexceptional assessment of the evidence before it. What concerns me is that the remainder of the analysis was based on the failure of the local authority to produce evidence of its own or to challenge evidence given by the parents. It is always preferable to base a decision on the fullest evidence that can be provided, but the local authority was legally represented and was given the chance to do more than it did. For whatever reason, it did not do so. And it did not challenge the tribunal’s reasoning on disability before me, despite knowing of the tribunal’s suggestion that the Upper Tribunal should, if necessary, re-make the decision rather than remit the case for another hearing.

A useful starting point is with the findings on the child’s disablement. The parents did not argue that she had any intellectual or cognitive impairment that caused her difficulty in learning, so she did not satisfy section 20(2)(a). The tribunal accepted that she satisfied section 20(2)(b). By finding that she was disabled, the tribunal found that her condition prevented or hindered her making use of facilities generally provides for others of her age. Those facilities were the computers operating by wifi and the programmes running on those computers.

Coming to the Code, the child’s problems lie with: (a) communication (paragraph 6.28) that now takes place through the programmes rather than with the teacher; and (b) sensory needs (paragraph 6.34) that prevent or hinder her using the computers. The use of the computers and their programmes is now an integral feature of how education takes place in schools. Their use is no longer marginal or peripheral.

Just to be clear, I am not saying that the list from the Code is necessarily comprehensive and I am not using it as a definition of ‘educational provision’. I am merely using the list as a way of thinking about what may and may not amount to educational provision to help in applying that expression. The First-tier Tribunal had to have regard to the Code. In re-making the tribunal’s decision, I am doing what it was required to do.

The child’s problem with electro-magnetic radiation affects her life generally and limits her normal day-to-day activities – the Equality Act test. It applies at school, at home, and when she is out in the world. When at school, her problems with communication and making use of the computers are a direct result of the use of wifi in schools. The only solution available has to be provided in the school. It is not transferable to any other location, although it may need to be replicated elsewhere. I cannot see what other provision would be effective to avoid the problem or overcome its consequences.

This is not simply a case of a child being unwell and finding it difficult to concentrate. There was evidence from two educational psychologists both of whom found her and her parents credible in describing her symptoms. The tribunal (paragraph 47) accepted their evidence too and described her symptoms as ‘debilitating when they occur’, which they did to such an extent that she ‘was out of education for a whole academic year.’ Those symptoms were not unique to a school environment. But when they occurred in that environment they arose from the school’s choice of the medium for providing education. In those circumstances, some provision is required to render the education effective.

For those reasons in combination, I find that the child requires special educational provision. No one factor has been decisive in my analysis and I have not attached any particular significance to the factors individually. Rather, I have considered the effect of the factors taken as a whole, each in the context of all the others.

The tribunal gave its opinion that a plan should be prepared and maintained. It explained why. I agree with its reasoning and its conclusion. Indeed, I consider that the conclusion is unavoidable.

Ms Walker invited the Upper Tribunal to remit the case for rehearing if it allowed the appeal. I have re-made the decision, as the tribunal anticipated. Ms Walker did not present any direct argument against the tribunal’s reasoning or conclusion on this issue.

In coming to the decision I have on disposal, I have taken into account in particular these two factors. First, there is certainty and finality. That is important because (a) this case has already been going on for five years and (b) it will not be long before the child will be studying for her GCSEs. Second, the First-tier Tribunal provided the foundation for me to re-make its decision, thereby giving notice to the local authority. Despite this, the local authority did not address that foundation directly. Nothing I heard at the oral hearing undermined the tribunal’s reasoning on the need for a plan.