Swansea City Council v Rees & Ors

Entitlement to a special educational needs allowance under paragraph 25.2(d) of the School Teachers' Pay and Conditions Document 2010 and Guidance on School Teachers Pay and Conditions requires more than satisfaction of the three conditions concerning the post. The teacher must also work in a non-designated setting analogous to a designated special class or unit.

For an unattached teacher, the comparison required by condition (iii) is with teachers in the relevant unit or service, not with the local education authority's education service as a whole. The wording of the Document cannot be displaced by a Review Body report. A claimant must prove both the analogous-setting requirement and a greater involvement with children with SEN than is normally required of teachers in the relevant unit or service.

Three former teachers employed as home tutors claimed special educational needs (SEN) allowances for September 2010 to August 2015. Their contractual terms incorporated the School Teachers' Pay and Conditions Document 2010 and Guidance on School Teachers Pay and Conditions.

The Employment Tribunal at Pontypridd upheld their breach of contract claims. It held that the words “analogous to a designated special class or unit” did not impose a requirement separate from the three conditions in paragraph 25.2(d)(i)–(iii). It also treated the relevant “unit or service” in condition (iii) as the local authority's education service as a whole.

The Council appealed on both points of contractual construction. The central issue was whether home tutoring satisfied the separate analogous-setting condition and what constituted the relevant unit or service for the statutory comparison.

1. Appeal allowed. The Employment Tribunal's finding of contractual entitlement to SEN allowance was set aside. The claimants' breach of contract claims were dismissed.

2. Paragraph 25.2(d) imposed a separate condition that the teacher work in a non-designated setting analogous to a designated special class or unit. The phrase concerned the setting, whereas conditions (i) to (iii) concerned the post. Treating the latter conditions as exhaustive impermissibly deprived the analogous-setting words of effect and would greatly expand entitlement to teachers in ordinary mainstream classes.

3. The Review Body report could not alter the natural meaning of the Document, which was made under statutory authority. Its context in any event supported the exceptional nature of SEN allowances for teachers working in ordinary classes.

4. On the unchallenged evidence, the only rational conclusion was that home tutoring was not analogous to a designated special class or unit. Home tutors taught pupils with and without SEN, largely one-to-one, whereas a designated special class or unit was restricted to pupils with SEN. The evidence described home tutors as analogous to mainstream classroom teachers, most of whom did not qualify for the allowance.

5. Condition (iii) required comparison with teachers throughout the relevant unit or service. “Unit or service” referred to part of the local authority's education function, not the authority's entire education service. On these facts, the relevant unit or service was the home tutoring team. The claimants had adduced no evidence enabling the required comparison with other teachers in that team. They therefore failed condition (iii) independently of the analogous-setting requirement.

• Employment Appeal Tribunal: Allowed the Council's appeal and set aside the Employment Tribunal's judgment.
• Employment Tribunal, Pontypridd: Judgment promulgated on 1 June 2017 upheld the former teachers' claims for breach of contract based on non-payment of SEN allowance.