EAM v East Sussex County Council

Special educational provision is not limited to provision that itself educates a child. It may include adaptations enabling a disabled child to access and benefit from education.

The distinction between educational provision under section 21(1) of the Children and Families Act 2014 and health or social care provision that educates or trains under section 21(5) must be maintained. Relevant circumstances must be assessed cumulatively, without confining educational provision to cognitive learning or relying on rigid analogies.

The appellants appealed against a First-tier Tribunal decision dated 8 November 2021 concerning whether the local authority had to secure and maintain an EHC plan for their daughter.

The child was disabled within section 20(2)(b) of the Children and Families Act 2014. The First-tier Tribunal concluded that a wired internet connection was not special educational provision because it did not itself educate or train the child. The issues before the Upper Tribunal concerned the proper construction of section 21(1), the relevance of section 21(5), and whether an EHC plan was necessary under section 37(1).

1. Appeal allowed and decision remade. The First-tier Tribunal’s decision was set aside for error of law under section 12(2)(a) and (b)(ii) of the Tribunals, Courts and Enforcement Act 2007. The local authority was required to secure that an EHC plan was prepared and maintained.
2. The First-tier Tribunal had confused “educational provision” in section 21(1) of the Children and Families Act 2014 with health or social care provision that “educates or trains” a child under section 21(5). Provision may be educational without itself educating the child.
3. The tribunal’s focus on whether the requested provision itself educated the child was a misdirection. Its reliance on comparisons with a nut allergy, a low-arousal environment and wheelchair access also led it to take too narrow a view, particularly by concentrating on cognitive aspects of learning.
4. Educational provision may include provision enabling a disabled child to use educational facilities and making education effective. The statutory Code of Practice was relevant but did not define educational provision. The relevant factors had to be considered in combination and in context.
5. The child’s disability prevented or hindered her use of wifi-operated computers and educational programmes. A wired internet connection was the effective school-based means of overcoming that obstacle. It was not health care provision and did not itself educate the child, so section 21(5) was irrelevant.
6. It was necessary for provision to be made in accordance with an EHC plan under section 37(1).

• Upper Tribunal (Administrative Appeals Chamber) — Appeal allowed. The First-tier Tribunal’s decision dated 8 November 2021 was set aside and the decision was remade.
• First-tier Tribunal (Health, Education and Social Care Chamber) — The tribunal found that the child was disabled but concluded that the requested provision was not special educational provision.