Westminster City Council v First Tier Tribunal (HESC)

A First-tier Tribunal may review and set aside a discrete matter within its decision, but must define the review’s scope and respect finality in litigation. A party will not ordinarily be permitted to raise a new point at a late appellate stage where it could have affected the evidence below.

Whether support outside ordinary school hours or terms is special educational provision depends on the young person’s particular needs. A need for consistency does not necessarily establish such a need, but it may do so where the tribunal lawfully finds that daily provision is reasonably required to prevent regression and develop relevant skills.

The Council sought judicial review of a First-tier Tribunal review decision concerning A’s education, health and care plan. The Tribunal had removed duplicated mentoring provision from the social-care section and required up to five hours’ mentoring daily, seven days a week and throughout the year, as special educational provision in section F.

The Council contended that the mentoring should not wholly be treated as special educational provision and that non-term-time provision was unlawful. It also advanced objections to the Tribunal’s partial review of its original decision. After Point West GR Ltd v Bassi & Ors [2020] EWCA Civ 795, the Council did not pursue the partial-review objections.

The central issue was whether the Tribunal had erred in law by specifying five hours’ daily mentoring as special educational provision outside term time.

1. Permission was refused on Ground 1 and the judicial-review application was dismissed on Ground 2. The First-tier Tribunal’s September review decision disclosed no error of law.

2. Following Point West GR Ltd v Bassi & Ors [2020] EWCA Civ 795, a review under the Tribunals, Courts and Enforcement Act 2007 may concern a matter forming part of a decision. The tribunal, not the parties, determines the review’s scope. The contrary approach in Essex CC v TB [2014] UKUT 559 (AAC) should not be followed.

3. The Council’s Ground 1 objections were new points raised too late. They could have affected the evidence before the First-tier Tribunal. The court therefore refused permission to rely on them. In any event, provision supporting education and learning may be educational provision even if it does not itself provide education. An indirect respite benefit did not alter the provision’s character.

4. On Ground 2, the governing question was whether A reasonably required an extended educational programme beyond the school day or term. Consistency of approach outside school does not automatically make provision educational. It remains open to a tribunal, on the particular evidence, to find that daily provision is educationally required.

5. The Tribunal had evidence that without daily mentoring A’s learning and progress would regress and that her executive-functioning and related educational outcomes required sustained support. Its finding that five hours’ mentoring every day was special educational provision was a lawful evaluative conclusion. The order requiring that provision in section F therefore stood.

• Upper Tribunal (Administrative Appeals Chamber): Judicial-review challenge dismissed: [2023] UKUT 177 (AAC).
• First-tier Tribunal (HESC) (SEND): The appeal concerning A’s education, health and care plan was allowed on 23 February 2022. On review, the Tribunal issued its further decision on 20 September 2022, removed duplication from section H and specified daily mentoring in section F.