Westminster City Council v First Tier Tribunal (HESC)

A’s solicitors wrote a long letter to the Tribunal, opposing the grant of permission to appeal, on 21 October 2022, but in any event the application was not admitted by Judge Tudur on 14 December 2022.

In her decision she explained that

In the light of that decision, on 14 December 2022 the Council sought permission to bring judicial review proceedings from the Upper Tribunal. On 12 January 2023 I made directions for the oral hearing of the application, which was to be a rolled-up oral hearing of the application for permission to bring judicial review proceedings, with the judicial review to follow if permission were granted, so as to obviate the need for a second hearing.

I heard the rolled-up hearing on the morning of 19 June 2023 and reserved my decision. The parties were both represented by counsel, the Council by Mr Alexander Line and A by Mr David Wolfe KC. I am indebted to both of them for their concise and well-argued submissions.

The Council originally had 4 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.

Ground 3: the Tribunal acted in a procedurally improper way and/or acted in a way which was ultra vires, by re-determining part of its decision only.

Ground 4: in relation to the Review Decision, Judge Tudur acted in a procedurally improper way and/or in a way which was ultra vires, by setting aside only part of the Decision.

However, in advance of the hearing I drew counsel’s attention to the decision of the Court of Appeal in Point West GR Ltd v Bassi & Ors (to which reference is made in the commentary in vol. III of the Social Security Legislation 2022/23 (Administration, Adjudication and the European Dimension) at 3.46 (page 1101), which deals with the 2007 Act) and in particular the judgment of Lewison LJ at [25] and [35].

Lewison LJ said that

Mr Line rightly accepted that that decision was binding upon him and he did not pursue grounds 3 and 4, so that only grounds 1 and 2 remained live for decision.

There had hitherto been a conflict of authority in the Upper Tribunal as to whether there was power under s.9(4)(c) of the 2007 Act to set aside and/or review only part of a decision, although both predated the decision of the Court of Appeal in Point West. In Harrow Council v AM [2013] UKUT 157 (AAC) it was held at [18] by Upper Tribunal Judge Mark that

By contrast, however, in Essex CC v TB [2014] UKUT 559 (AAC) it was said at [43] by Upper Tribunal Judge Rowland that

The question is now definitively resolved by the decision of the Court of Appeal in Point West and to the extent that Essex CC v TB holds to the contrary it should not be followed.

Mr Line emphasised in particular what was said in paragraph 26 of the February decision to the effect that (with emphasis added)

… 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. We have concluded that it is more likely than not that A’s needs will not be met unless she receives mentoring support for five hours per day, outside of the school term and on the weekends. We had regard to the outcomes in section E and concluded they are unlikely to be achieved without consistent mentoring support outside of the school weeks. Accordingly, we have amended the mentoring provision to specify this.”

He submitted that it was clear from the emphasised wording that the mentoring support was, at least in part, designed to facilitate access to education, as opposed to providing education per se.

It was also clear from the emphasised wording in the February decision that at least some of the time provided by the mentor constituted respite, which was not special educational provision.

For provision to be specified in Section F of an EHCP, it must either be direct special educational provision under s.21(1) or, applying s.21(5), deemed special educational provision: East Sussex County Council v TW [2016] UKUT 528 (AAC) at [21-23]. The first failure of the Tribunal was that it did not make clear whether the mentoring provision, insofar as it was to be included in Section F, was direct or deemed special educational provision

Prior to the post-Review Decision, the five hours per day mentoring support had been included in Section H2 of the EHCP as social care provision. The effect of the Tribunal’s post-Review Decision, read in light of the Decision, was to move that provision out of Section H2 and place it into Section F. On that basis, it might reasonably be expected that the Tribunal’s intention was to apply s.21(5) and treat it as deemed special educational provision, although that was not stated in clear terms in the Decision or the post-Review Decision, which made no reference to either s.21(1) or s.21(5).

As per the Upper Tribunal’s guidance in TW at [24], it was the task of the Tribunal to “… identify which parts of social care provision educate or train. Any parts which had that effect must be moved to Section F”. The Tribunal acknowledged at [26] of the Decision that it was not able to say which aspects of the mentoring educated or trained. However, in error, as confirmed by the post-Review Decision, the Tribunal then went on to include all aspects of the mentoring provision in Section F. There was, necessarily, no finding which supported that approach because the Tribunal acknowledged in the Decision that it could not identify the extent to which the mentoring support educated or trained, and in the post-Review Decision it gave no insight into why all of the five hours was devoted to education and training.

Inferentially, it followed that if the Tribunal could not do that then at least part of the mentoring provision was not educational. It was, thus, an error for the Tribunal to find that all of it should be included within Section F as opposed to Section H2. That criticism applied regardless of whether the provision was specified in Section F pursuant to s.21(1) or s.21(5), but the Council submitted that, properly construed, this was a s.21(5) case. Furthermore, to fail to specify the division between special educational provision and social care provision in an EHCP ran against the grain of the general principles in law as to specificity, as summarised in Worcestershire County Council v SE at [74].

Further or alternatively, facilitating access to education was not, without more and in the absence of specific and adequately reasoned findings to that effect, provision which was capable of being included in Section F. In error, the Tribunal included the mentoring provision, or at least a part of it, in Section F of the EHCP on the basis that it assisted with facilitating access to education. That was made clear from the wording at page 17 of the final working document accompanying the post-Review Decision:

The emphasised wording reflected what was stated in the emphasised wording from the Decision and post-Review Decision cited above, demonstrating that facilitating access to education was an important factor in the Tribunal’s reasoning for placing the mentoring provision in Section F. 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.

Whilst the circumstances were different, the Council relied on the following analogous situations considered in other cases:

in East Sussex County Council v KS [2017] UKUT 275 (AAC) at [89] the Upper Tribunal held that, even if medical and nursing support was essential for a child to be educated, that did not make it special educational provision

in East Sussex County Council v JC [2018] UKUT 81 (AAC) at [29] the Upper Tribunal recognised that the provision of a powered wheelchair could only be special educational provision to the extent that its use educated or trained.

Only to the extent that mentoring educated or trained was it permissible to be included in Section F. Whilst some special educational provision might have a ‘dual use’, in the Council’s submission the Tribunal was not entitled simply to conclude that all of the mentoring should be treated as special educational provision, when it was clear from both its own reasoning and the final working document that some (and in the Council’s submission, a material and/or substantial part) was not directed to education and learning in the sense required by either s.21(1) or (5).

Furthermore, as to the quotation from the final working document cited above, the inclusion by the Tribunal of the references to the mentor assisting with SLT and OT programmes was in error because, during term time, there would be no programmes for the mentor to implement. It was clear from the wording at pages 18-19 of the final working document, relating to Outcome 1 (communication and interaction), that weekly direct SLT of one hour per week was to be provided during term time, but there was no reference to the creation of programmes or to indirect therapy during term time. The only reference to indirect SLT and the provision of a programme to be implemented arose in holiday periods. Similarly, in relation to Outcome 4 (sensory and physical), at pages 22-23 of the working document, there was a reference to weekly direct OT of one hour per week during term time, but there was no reference to indirect therapy or the provision of programmes except in relation to holiday periods.

Therefore, insofar as the Tribunal’s intention was for such programmes to be implemented by the mentor, that only (or materially and/or substantially only) arose in non-term time periods, and could not justify the inclusion of 5 hours per day, 365 days per year, mentoring time as special educational provision. (Whilst paragraphs 27 and 28 of the Decision were noted, they did not read consistently with what the Tribunal directed through the final working document. It was not accepted that by merely attending the direct sessions, the mentor could then be appropriately placed to provide indirect therapy.)

Whilst page 17 of the final working document accompanying the post-Review Decision also referred to a limited number of specific programmes which would be followed, the Tribunal’s conclusion that all of the mentor’s time would be devoted to applying these programmes in an educational sense, thus constituting special educational provision, was unsustainable in view of the arguments set out above.

In summary, therefore, the Tribunal’s decision to order, during term time, mentoring support of five hours per day, seven days per week, every day of the year, was in error because: (a) it was inconsistent with its own findings on the evidence before it; (b) it failed properly to engage with, and address, how much of it was special educational provision, as opposed to social care provision, even if it was satisfied that some of it was special educational provision; (c) it wrongly treated provision which facilitated access to education, or at least did so to an extent (and arguably to a material and/or substantial extent), as being entirely special educational provision; and/or (d) it wrongly attributed functions of the mentor in relation to SLT and OT as arising in term time and contributing to the delivery of special educational provision.

As above, the Tribunal confirmed through the post-Review Decision that it ordered, as special educational provision (whether applying s.21(1) or (5)), mentoring support for five hours per day, seven days per week, on every day of the calendar year. That would require, for example, mentoring as special education provision even on Christmas Day, if taken in extremis.

For such a finding to be permissible, the Tribunal needed to be satisfied that there was an educational need for programmes to be delivered beyond the ordinary school day and term structure. Whilst the Upper Tribunal had warned against attributing significance to terms such as ‘waking day’ and ‘extended curriculum’(London Borough of Southwark v WE [2021] UKUT 241 (AAC)), that was an extraordinary example of such provision.

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: Hampshire CC v JP [2009] UKUT 239 (AAC) at [27], London Borough of Hammersmith and Fulham v JH [2012] UKUT 328 (AAC) at [18-19].

As the emphasised wording quoted above showed, a key reason provided by the Tribunal for its approach to mentoring supporting in non-term time related to anxiety and the need for consistency in relation to executive functioning skills. That approach did not justify the mentoring being treated as special educational provision. Anxiety was generally considered to be a health need and consistency might well be beneficial, but it could not create a need for an extended curriculum

Moreover, having regard to the involvement of the mentor in the SLT and OT programmes over the holiday periods, whilst that might provide some justification for mentoring to an extent during holiday periods, it was not open to the Tribunal rationally to conclude that that (or, indeed, anything else) justified the full extent of the provision ordered in Section F over holiday periods. The Tribunal failed to make any finding as to how much of the mentoring was educational and how much non-educational.

In light of the evidence and findings made, in error the Tribunal failed to properly engage with, or address, how much of the mentoring during non-term time constituted special educational provision, even if it was satisfied that some of it was.

Ground 1 challenged the legality of the Tribunal’s second decision that the mentoring input (which it concluded that A required) was Special Educational Provision rather than merely being social care provision (as the Council asserted it to be).

Ground 2 challenged the legality of the Tribunal’s second decision that A required that special educational provision beyond term time.

To be clear: the complaint related to the Tribunal’s second consideration of the extent and classification of the mentoring provision, not to the conclusion that A properly required it, which was undisputed (see the February decision at [24]). Indeed, in its 22 August 2022 submission, the Council accepted at [18] that – at the very least – 5 hours per day mentoring during term time (with additional support out of term) was properly Section F provision. Its argument before the Upper Tribunal expanded even on the arguments it made before, and quite impermissibly.

Anyway, it was well established per RB v FTT [2010] UKUT 160 (AAC) at [30] (with a panel which included Lord Carnwath SPT) that:

The position must be all the more so where, as here, the judicial review was to a decision taken following a review in circumstances in which the possibility for an appeal was specifically precluded by the statutory scheme.

Even in an appeal the Upper Tribunal must take particular care in relation to issues of judgment by the expert Tribunal. That was all the more so here (in a judicial review of a review decision) where what was in issue was entirely a matter of the Tribunal’s expertise having considered the evidence at a full merits hearing and then in a reconsideration. It would take the clearest of legal error to justify Upper Tribunal interference with all that at the present stage. That was simply not the case here, for the following reasons.

A further important starting point here was that the Tribunal decision under challenge was the decision relating to mentoring of September 2022 at [8-9] which set out the Tribunal’s conclusions and reasoning on the point following the fresh consideration following the setting aside and remitting back from the 22 May decision of the matter of mentoring.

While that decision document said that it “should be read in conjunction with” the February decision, that could not be taken (as the Council would seemingly have it, see below) as meaning that the paragraphs relating to mentoring in the May decision were part of the operative decision of the September decision or somehow displaced what the Tribunal said in September on the point.

Indeed, precisely not because those earlier paragraphs were, in substance, the very thing which Judge Tudur had set aside, so they could not have that effect.

The September decision at [8] said that:

Important to understanding why on any view that was an entirely lawful conclusion, and to understanding why the Council’s critique was so misplaced was (1) an understanding of the law and (2) the appreciation that the evaluation of the evidence and factual position against that law was a matter of judgment and evaluation for the expert Tribunal to which (particularly given that this was a judicial review, not appeal of a second consideration of the matter by the Tribunal) the Upper Tribunal should give the greatest deference.

As to (1), special educational provision could either arise as educational provision (s.21(1)) and/or what some have called “deemed special educational provision”, namely something which would be health care provision or social care provision but which, because it “educates or trains” took effect by operation of s.21(5) instead as special educational provision.

Critically missing from the Council’s analysis was that – as a matter of law - something could be educational provision (for s.21(1) purposes), even if it did not educate or train (in the s.21(5) sense). They were separate concepts. Upper Tribunal Judge Jacobs explained the position in EAM v East Sussex CC [2022] UKUT 193 (AAC):

The primary question here was whether for A the mentoring was “educational provision” (per s.21(1)).

It was well established that the question of whether any particular provision was “educational provision” was not a question of law; rather, it was a matter for the local authority and, on appeal, the Tribunal. The Tribunal could lawfully give “educational” a broad meaning for that purpose: LB Bromley v SENT [1999] ELR 260.

This Tribunal was thus fully entitled to conclude that the mentoring which it had concluded that A needed to support her education and learning was indeed educational provision (and thus special educational provision) for her (whatever the position for any other person might be). Its conclusion and reasoning were unimpeachable.

The Council’s points on that issue were made in a confused order. The response dealt with them in a more logical order.

The Council contended that the mentoring input was not s.21(1) special educational provision because (so it contended) the provision was merely “designed to facilitate access to education, as opposed to providing education per se”.

The Tribunal referred to the provision in question as “supporting her education and learning” not “facilitating access to [it]”. But, in any event, as explained by Judge Jacobs, provision could be educational without “providing education per se”. Something which supported (or even facilitated) education (in the manner of the hearing aid loop etc. in his example) could lawfully be educational provision. The Tribunal was entitled to decide that it was here, for A. No more was needed for a lawful decision that this for A was special educational provision.

The Council nonetheless also complained that the Tribunal did not make clear whether the provision in question was “direct or deemed” special educational provision (i.e. whether it fell within s. 21(1) or 21(5) of the 2014 Act). The Council then argued that the mentoring could only be included in Section F to the extent that (per s.21(5)) it “educated or trained” A. It also complained that, in its 23 February 2022 decision the Tribunal said it was unable to decide which aspects of the monitoring “educated or trained”. It suggested that it followed from the Tribunal not reaching a view on which aspects educated or trained then “at least part of the mentoring provision was not educational” [italics in the original].

However, as above, there was no need for the Tribunal to consider whether the provision educated or trained (since that would only arise under s. 21(5)). Of course, there was no problem with it doing so in addition to its s. 21(1) consideration (not least because the provision in question had been presented to it by the Council as social care provision), but, given its decision that the provision was educational provision (per s.21(1)) the question of whether it might also have been deemed special educational provision by operation of s.21(5)) did not necessarily arise and added nothing. Notably in that context, the Tribunal’s mention of the “educates or trains” question arose only in the passage in its February decision which Judge Tudur set aside, and even then, only arose at all from the way in which the Council itself had put its case to the Tribunal. As the Tribunal put it at [24]:

As stated above, the Tribunal did not need to consider that “educates or trains” question, but it could not be criticised for looking at the point given the Council’s case before it and, as stated above, the answer was not key to its decision overall.

What actually mattered though was that, in the operative September decision, the Tribunal concluded that the entirety of the provision was special educational provision.

Any permitted criticism of the February passage would thus take things no further. In any event, it would be misplaced since the Tribunal was perfectly entitled to conclude that, however precisely the 5 hours broke down (given the variety of benefits which it was bringing for A), it was nonetheless all properly classified as special educational provision. There was no basis for the Upper Tribunal to declare that unlawful (as it would need to on a judicial review).

The Council made two further (and essentially discrete) points. First it argued that “at least some of the time provided by the mentor constituted respite, which is not special educational provision”. However, that was a reference to material in the February decision which had been set aside, and so criticism of it was not relevant. But, in any event, the Council misrepresented even what the Tribunal had said at that point. It had merely accepted that the mentoring “may provide some respite to the family, but this was an indirect result and not the main aim of the provision” at [26]. That was an unimpeachable conclusion which – even had it still been operative – would not in any sense undermine the FTT’s conclusion that the provision in question was special educational. Most special educational provision - and indeed any special educational provision provided at a school - would have the indirect result of providing respite to the family. That did not make it not special educational provision. The Council’s point was an obviously bad one.

Secondly, the Council also argued that the Tribunal’s mention of the mentor assisting with access to (out of term) SLT and OT programmes undermined its conclusions on the need for mentoring input during term time. The point was a bad one. The passage about which it complained was referring to the whole annual process, including therefore the out of term period to which the SLT/OT element would be directly pertinent.

Overall, the Council’s conclusion that, for A, the mentoring support was special educational provision to be included in Section F of her EHCP was entirely lawful.

The Council asserted that a key reason for the Tribunal’s conclusion that A required mentoring beyond term time was for “consistency in relation to non-executive functioning skills” in circumstances in which, so it argued “consistency … is not sufficient to establish that an educational need exists … beyond the ordinary school day”.

The Council argued that: “The need for consistency, or reinforcement of learning [i.e. a consistent delivery of provision], is not sufficient to establish that an educational need exists for the delivery of education beyond the ordinary school day and term structure.” But that was not the law: the legal point was that a need for consistency of approach beyond the school day did not mean that that was necessarily an educational need: R(TS) v Bowen & Solihull [2009] EWHC 5 at [39]. That did not mean that, in a particular case, a Tribunal could not lawfully decide that a need for a consistency of provision was special educational provision in the circumstances of this young person.

But even that was not pertinent here because this Tribunal was not referring to consistency of provision. It was concerned with provision which would promote A’s consistent development. The Council had confused two entirely different things. What the Tribunal said was this:

The Council had simply misread the Tribunal decision.

But, as stated above, even if the Tribunal had concluded that “consistent support” was the issue and that consistent support was all that was needed, then that would still have been entirely lawful conclusion for it to reach on the evidence and facts of this case. The law simply was that a need for consistent support alone was not necessarily enough to make it special educational provision , but that did not preclude it being enough in any particular case.

Overall, the Tribunal’s conclusion that A required 5 hours of mentoring support per day throughout the year was entirely lawful.

It was correct that the claim lay against the post-Review Decision, but the Council submitted that that necessarily had to be read in the context of the Decision for the reasons stated previously. Regarding the reference to paragraph 18 of the Council’s submissions dated 22 August 2022, that must be read in the context of paragraph 1(a) of Judge Tudur’s order in the Review Decision. It could be seen from paragraph 24 of the Decision that the Council’s position was that it disputed that “not all of the daily support from the autism mentor/personal assistant/specialist worker trains or educates A and so it is not appropriate for it to be classified, in its entirety, as special educational provision”.It was denied that the claim went beyond the position previously taken by the Council. Alternatively, the Tribunal still made the errors as argued.

RB v FTT[2010] UKUT 160 (AAC) concerned an appeal against a review decision. However, this was a claim against the post-Review Decision, not the Review Decision itself. There was a difference between the discretion to conduct a review and a reconsidered decision which was taken as a result of a review. Ordinary judicial review principles should be applied in the latter situation; no stricter test was required.

It was not disputed that the Upper Tribunal should have regard to the expertise of the First-tier Tribunal. There were various authorities to which both parties could undoubtedly direct the Upper Tribunal regarding the approach taken to appeals against first-instance decisions in the SEND context. Whilst this case was not an appeal, but rather a judicial review, the Council acknowledged that some cross-reading of those principles was warranted, but ultimately the Upper Tribunal was applying judicial review principles and was not concerned with an appeal.

The point made by A in paragraphs 65 to 67 above was difficult to follow in light of what the Tribunal actually said in the post-Review Decision. The Tribunal plainly still had in mind the Decision when it made the post-Review Decision and expressly incorporated its previous reasoning. The post-Review Decision could not be read in any other way.

With specific reference to Ground 1

as was evident, in paragraph 8 of the post-Review Decision (in which the Tribunal said that 5 hours per week should be specified in Section F), the Tribunal did not say whether it was applying s.21(1) or s.21(5). Nor did it clarify that expressly in any other place in the Decision or post-Review Decision.

there appeared to be no dispute between the parties that special educational provision could be recorded in Section F of an EHCP on the basis of either s.21(1) or s.21(5). However, on one reading it was suggested at paragraph 79 above that A took the view that provision was capable of being special educational provision under s.21(1) and s.21(5) simultaneously. If that were the intention of the submission, the Council disagreed.

what A failed to address was that the Tribunal did not say whether it was applying s.21(1) or s.21(5). As the Council had previously pointed out, it was much more likely that the Tribunal was applying s.21(5). Thus, even if it were correct that provision could be special educational provision under s.21(1) despite it not educating or training, that was not the case for deemed special educational provision under s.21(5). (Footnote: ¹)Furthermore, at paragraph 26 of the Decision the Tribunal used the terminology “educate and train”(and also previously at [16(b)] and [24]), suggesting that s.21(5) was being applied. That provided an additional indication that the point made by A was of limited, if any, relevance: this was a s.21(5) not a s.21(1) case.

A appeared to acknowledge that the material question for the Tribunal was under s.21(5) and not s.21(1), but confusingly that was not consistent with what was then said where the contrary position was adopted.

it was irrational simply to treat all of the mentoring provision as special educational provision under s.21(5) when the Tribunal had acknowledged in the Decision that it was not able to say how much of it educated or trained; and the post-review Decision did not give any further insight into why all of it fell within s.21(5).

the Council’s argument was that facilitating access to education was not a sustainable basis for the Tribunal’s conclusion that the mentoring support was special educational provision. A hearing loop (to use A’s example) potentially encountered the same difficulty that a powered wheelchair or nursing support did. Here, the mentoring was social care provision (it was recorded as such in Section H of the EHCP); therefore the question was whether it was social care provision which educated or trained. If it did not, or not all of it did so, then it was inappropriate to specify it in Section F applying s.21(5).

A wrongly proceed on the assumption that the Tribunal found that the provision was s.21(1) special educational provision. But, for reasons already set out, the Council did not accept that that was a reasonable interpretation of what the Tribunal found, or that that was sufficiently clear from the post-Review Decision read alone or properly in the context of the Decision. A essentially argued that the references to education and training in the Decision (incorporated into the post-Review Decision) were otiose. The Council disagreed. A also overlooked the fact that the mentoring provision was included in Section H of the EHCP, giving a strong prima facie indication that it was social care provision, to which the Tribunal then applied s.21(5).

the post-Review decision, like the Decision, did not refer to either s.21(1) or s.21(5), which meant it was necessary to look back to the Decision to give context.

With specific reference to Ground 2

the Council relied on the same failure by the Tribunal advanced in Ground 1, save that Ground 2 was focussed on the issue of non-term time provision. It was also argued that a need for consistency was insufficient to justify special educational provision (on whichever basis) for 365 days per year.

a need for consistency was generally not to be equated with a need for special educational provision: Learning Trust v MP[2007] EWHC 1634 at [41]. The cases showed that cases where consistency alone justified programmes of learning beyond the ordinary school day would be extremely rare, if ever arising. Very cogent reasons would certainly be expected of a tribunal if that were the sole basis for specifying such provision.

consistency across settings and consistency of development were not necessarily materially distinct. That still went to the point raised by the Upper Tribunal in Hampshire County Council v JP[2009] UKUT 239 (AAC) at [27] “… it would be inappropriate to reason from the fact that the care needed by N outside of normal school hours would reinforce what had been learned during the day that N needed a waking day curriculum”. The Council’s point was that consistency in relation to the delivery of special educational provision was not in the circumstances a sound basis for a ‘waking day curriculum’. That was what the Tribunal was referring to – at [9] of the post-Review Decision it referred to “the support in [sic] required on a daily basis to promote… consistent development of her executive functioning skills”. The Council had not confused what the Tribunal had said, as was alleged.

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.

The Council also made three discrete points as part of that submission:

the mentoring support was, at least in part, designed to facilitate access to education, as opposed to providing education per se (paragraph 39 above)

at least some of the mentoring support constituted respite, which was not special educational provision (paragraph 40 above)

insofar as the Tribunal’s intention was for the SLT/OT programmes to be implemented by the mentor, that only arose in non-term time periods and could not justify the inclusion of 5 hours per day, 365 days per year, mentoring time as special educational provision (paragraph 49 above). It seems to me that that question arises more naturally in respect of Ground 2 in relation to mentoring out of term and I shall deal with it under that heading.

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. Its position then was that “not all of the daily support from the autism mentor/personal assistant/specialist worker trained or educated A and so it is not appropriate for it to be classified in its entirety as special educational provision”, but it was not being said that mentoring support during term time did not constitute special educational provision at all.

Nor was the point now asserted made when the Council sought permission to appeal against the February decision. As is apparent from paragraph 12 above, it only sought permission to appeal in respect of the duplication of the mentoring provision in both Sections F and H. The Council’s application did not seek the removal of monitoring from Section F altogether nor did it seek to have it divided between Sections F and H.

Nor was the point now in issue raised at the September hearing arising out of the review ordered by Judge Tudur (and even as subsequently expanded by Judge Brownlee). As is apparent from paragraph 5 of that decision, the relevant issues which that Tribunal had to consider were (a) the removal of the duplication of mentoring provision in Section H and (b) whether A reasonably required mentoring support as special educational provision which extended beyond the school day (term time Monday to Friday) and, if so, to what extent. As the Council itself submitted on 22 August 2022

The argument that mentoring support, even during term time, could not constitute special educational provision at all was first raised when the Council sought judicial review in December.

Although it is possible for a new point of law to be taken on an appeal (or judicial review), there are well-settled principles on which the appellate Court or Tribunal acts. They have been set out in, for example, Singh v Dass[2019] EWCA Civ 360. One of those principles is 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.

If the argument now made had been raised earlier, it seems to me that in all likelihood it would have potentially affected the course of the evidence in the Tribunal below, in particular from Mrs Welby-Delimere and Mr Corcoran of I-Support. 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 not like the position where an argument is raised for the first time about the construction of a statutory provision which had not hitherto been argued (for example, whether a signature on an email constitutes signed writing for the purposes of the formalities required by s.53(1)(a) and (c) of the Law of Property Act 1925). 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.

It seems to me that that also applies to the first 2 of the Council’s discrete points set out in paragraph 99 above. For the same reason, I do not give permission to rely on those arguments either.

Nevertheless, in deference to the arguments addressed to me, I shall consider them as a matter of substance, even though I have not given permission in respect of them.

As to the first of the two discrete points made by the Council, that mentoring support was, at least in part, designed to facilitate access to education, as opposed to providing education pe se, I agree with and accept Mr Wolfe KC’s submission. The Tribunal referred to the provision in question as “supporting her education and learning” rather than as “facilitating access to [it]”, but in any event, as explained by Judge Jacobs in EAM (see paragraph 71 above), provision can be “educational” without “providing education per se”. Something which supports (or even facilitates) education can lawfully be educational provision. The Tribunal was entitled to decide that it was here in the case of A. No more was needed for a lawful decision that this, for A, was special educational provision.

As to the second point, that at least some of the mentoring support constituted respite, which was not special educational support, again I accept Mr Wolfe KC’s submission. The reference to respite came in the February decision, but the review was - and could only be - against the September decision, so that criticism of what was said in the February decision could not have been relevant. In any event, even then all that the Tribunal had said at [26] was merely to accept that the mentoring “may provide some respite to the family, but this was an indirect result and not the main aim of the provision”. That was a conclusion which, even had it still been operative, would not undermine the Tribunal’s conclusion that the provision in question was special educational provision. As Mr Wolfe KC said, most special educational provision (and indeed any special educational provision provided at a school) would have the indirect result of providing respite to the family, but that does not preclude it from being special educational provision.

I have considered whether I should say something about the question of whether s.21(1) and s.21(5) are mutually exclusive (as Mr Line contends) or whether they are not mutually exclusive and are capable of overlapping (as Mr Wolfe KC contends). That point was not in terms before Judge Jacobs in East Sussex CC v TW and EAM v East Sussex CC and was left open by Judge Levenson in East Sussex CC v JC (which postdated the former case, but not the latter). However, in the light of the fact that I have refused permission in respect of Ground 1, and that anything which I said on the subject would necessarily be obiter, on reflection I have concluded that that argument should be addressed on another occasion when it is live for decision.

The second limb of Ground 1 was that, 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.

That arose out of the Tribunal saying in its original February decision that

By contrast, in its September decision the Tribunal found that

S.9(11) of the 2007 Act makes it clear that, in the case of a review, the original decision and the decision on review are separate decisions. The only decision under the application for judicial review to the Upper Tribunal is the September review decision. The subsection provides that

Whatever may have been the position under the February decision, in the September decision the Tribunal had no doubt about the extent of the mentoring support needed as educational provision since it said in terms

On this occasion there was none of the previous hesitation about the extent to which mentoring provided educational provision or social care provision. Nor was this a mere reheating or regurgitation of the Tribunal’s hesitation in February since it now had the benefit of updated evidence from Mr Corcoran on which it could rely for its conclusion:

In other words, whatever its hesitations in February, when it came to reviewing the matter in September, and on the basis of updated evidence, the Tribunal was satisfied that the 5 hours of mentoring support each day constituted special educational provision. It was clearly resiling from its earlier hesitation since it specifically said at the outset of paragraph 8 of its decision “The Tribunal panel wishes to be as clear as it can be”, in contradistinction to its position in February. I can see no error of law in that conclusion.

Mr Line argued that paragraph 1 of the September decision stated that “this review decision should be read in conjunction with the decision issued as the end of the appeal hearing (dated 23 February 2022)”. That is correct, but it is not correct to assert, as he went on to do, that the Tribunal “expressly incorporated its previous reasoning”. On the contrary, it found on the basis of Mr Corcoran’s updated evidence that A reasonably required five hours of mentoring support per day in order to support her education and learning, in contradistinction to its conclusion in February that it “found it impossible to account for how many of the five hours per day will be educational”.

Moreover, 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. As set out in paragraph 102 above, the relevant issues which that Tribunal had to consider were (a) the removal of the duplication of mentoring provision in Section H and (b) whether A reasonably required mentoring support as special educational provision which extended beyond the school day (term time Monday to Friday) and, if so, to what extent. It was only the mentoring support outside term time and the extent to which that support was special educational provision which was in issue. The Tribunal can hardly be criticised for not explaining with perhaps fuller reasons than it did why the whole of the 5 hours within term time constituted special educational provision rather than social care provision when that had not been put in issue before it.

The correct time at which to challenge what the Tribunal had said about the respective extent of the two types of provision was in the aftermath of the promulgation of the February decision. That would have been the correct time to challenge that aspect of what the Tribunal had said in paragraph 24 of its decision, but the only challenge then mounted by the Council was as to the duplication of the provision in both Sections F and H2.

After the Council’s argument about the extent of the provision had been rejected in February, the argument about the extent to which mentoring support, even during term time, did or did not constitute special educational provision was only raised again when the Council sought judicial review in December. The reasons which I have set out in paragraphs 104 and 105 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.

Seeking to raise a point at the fourth time of asking is not acceptable. I therefore refuse permission to appeal in respect of the first ground of review.

In 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. That ground arose out of the September decision to the effect that

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.

Mr Wolfe KC sought to impugn that second ground of review on the basis that it did not arise out of the review ordered by Judge Tudur. However, Judge Tudur and Judge Brownlee had commensurate jurisdiction as Judges of the First-tier Tribunal and as a matter of jurisdiction it was open to Judge Brownlee to expand the scope of the review, so that it is open to the Council to raise the second ground in support of its application.

For the purposes of this decision, I shall proceed on the assumption that it was appropriate to expand the ambit of the review. I do, however, draw attention for future occasions to the remarks of the Court of Appeal in Point West about the importance of finality in litigation (which I set out at the end of this decision).

I am, nevertheless, satisfied that Mr Wolfe KC is right in his submissions and that the substantive review on this ground should be dismissed.

Although Mr Line submitted forcefully that the need for consistency, or reinforcement of learning (in other words, a consistent delivery of provision), was not sufficient to establish that an educational need existed for the delivery of education beyond the ordinary school day and term structure, what emerges from the decisions in Hammersmith & Fulham LBC v JH at [18-19] and R(TS) v Bowen & Ors at [39] 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. The question in each case, to paraphrase Upper Tribunal Judge Lane in Hammersmith & Fulham LBC v JH at [19], is that in each case the Tribunalmust decide whether it is necessary for the child or young person to have an extended extracurricular educational programme continuing after the end of the school day or the school term. As she said in that case

Moreover, 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 supportwas requiredon 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.

What it said was that:

Although I accept Mr Line’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. The law is that a need for consistent support alone is not necessarily enough to make it special educational provision, but that does not preclude it from being enough in any particular case.

As to Mr Line’s argument that consistency across settings and consistency of development are not materially distinct concepts, so that reference to the latter fell into the territory of what the Upper Tribunal was discussing in Hampshire CC vJP at [27], I repeat what I said in paragraph 128 above. A need for consistency of approach beyond the school day does not mean that that is necessarily an educational need, but 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. The question in each case, to paraphrase Upper Tribunal Judge Lane in Hammersmith & Fulham LBC v JH at [19], is that in each case the Tribunalmust decide whether it is necessary for the child or young person to have an extended extracurricular educational programme continuing after the end of the school day or the school term. That is what the Tribunal did in this case - and as Sedley LJ said in Bromley LBC v SENT[1999] ELR 260 at 295:

Mr Line submitted in paragraph 27 of his skeleton argument that the Tribunal’s approach to non-term time provision was undermined for the same reasons as set out in Ground 1, in that the Tribunal fundamentally failed to address properly the extent of which the mentoring was educational as opposed to social care provision. However, what the Tribunal decided in its September decision after the review hearing was that

It did not fail to address the extent to which the mentoring was educational as opposed to social care provision; it decided that it was all educational provision.

That leaves the discrete point made in relation to Ground 1, but which falls more naturally to be considered here. That was that, insofar as the Tribunal’s intention was for the SLT/OT programmes to be implemented by the mentor, that only arose in non-term time periods and could not justify the inclusion of 5 hours per day, 365 days per year, mentoring time as special educational provision. However, it is quite clear that the Tribunal’s conclusion as manifested in the working document was not solely dependent on the provision of SLT and OT programmes since the document in its final form stated (with emphasis added) that

Moreover, that passage refers to the whole annual process, including the out of term period to which the SLT/OT element would be directly pertinent.

As I mentioned in paragraph 118 above, paragraph 1 of the September decision stated that “this review decision should be read in conjunction with the decision issued as the end of the appeal hearing (dated 23 February 2022)”. What should therefore be read in conjunction with the September decision is what the Tribunal said in paragraph 17 of its February decision. Mr Line said that that was merely a recitation of the evidence, but it seems to me that the Tribunal was implicitly accepting that evidence (and certainly did not seek to criticise it). That evidence supports the need for daily educational provision, whether inside or outside term time.

Although I grant permission in respect of Ground 2, I therefore dismiss the substantive application for judicial review on that ground.

The decision in Point West is well-known in the social entitlement jurisdiction, hence its appearance in vol.3 of the Social Security Legislation. It does not, however, appear to have had wide currency in the special educational needs context, perhaps because it was a decision on appeal from the Upper Tribunal (Lands Chamber) in the context of a service charge dispute rather than the Health, Education and Social Care Chamber. It is therefore opportune to set out what it says about the proper scope of the power to review a decision (or part of a decision) and the need for finality in litigation.

As to the first point, Lewison LJ said towards the end of his judgment:

As to the second point, he said

Finally, he explained that

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.