Y Council v X (mother of X)

An individual development plan must describe in Section 2B all additional learning provision identified as required to meet a child’s additional learning needs. This includes provision which an NHS body has agreed to secure. Section 2C separately records that the NHS body, rather than the local authority, is responsible for securing that provision.

The statutory scheme creates no gap in responsibility. Unless an NHS body has agreed to secure relevant provision through the statutory process, the local authority remains responsible for securing it. A tribunal cannot require an NHS body to provide provision without its agreement, but may make a recommendation under section 76 of the Additional Learning Needs and Education Tribunal (Wales) Act 2018.

The mother appealed to the Education Tribunal for Wales against the Council’s individual development plan for X, a child with additional learning needs. The dispute included the appropriate speech and language therapy and occupational therapy, their provider, and whether provision supplied by the Health Board belonged in Section 2B, Section 2C, or both.

The tribunal required occupational therapy agreed by the Health Board to appear in both sections. It found that a more intensive speech and language therapy plan was required, but placed that provision only in Section 2B. The Council appealed, contending that provision to be secured by an NHS body must appear only in Section 2C and that the tribunal had relied on an irrelevant enforcement consideration.

1. Ground 1 was allowed only to a limited extent. The Upper Tribunal rejected the Council’s central construction. Section 2B of the individual development plan describes every element of additional learning provision identified as necessary to meet the child’s additional learning needs. It is not confined to provision for which the local authority is itself responsible. Section 2C additionally identifies provision which an NHS body has agreed to secure.
2. Where provision is specified as to be secured by an NHS body, section 21(5)(b) of the Additional Learning Needs and Education Tribunal (Wales) Act 2018 disapplies the local authority’s duty to secure that provision. There is therefore no uncertainty or lacuna: Section 2B must identify the delivering organisation, and Section 2C makes clear that the NHS body bears responsibility.
3. The Education Tribunal for Wales should have asked whether the Health Board would accept responsibility for the speech and language therapy it found necessary. It could not compel the Health Board to do so. If agreement had not been forthcoming, the tribunal should have made a recommendation under section 76; absent acceptance of responsibility by the Health Board, the Council would have remained responsible for the provision.
4. The Health Board had subsequently agreed to provide the required speech and language therapy. The IDP was therefore directed to be amended so that the provision appeared in Section 2C and Section 2B identified the Health Board as its provider.
5. Ground 2 was dismissed. The tribunal’s observation about the unattractive consequences of the Council’s construction was not a material consideration in the exercise of a discretion. It was a permissible confirmatory observation in statutory construction and did not affect its correct analysis.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the Council’s appeal only to direct amendment of the IDP following the Health Board’s acceptance of responsibility for the specified speech and language therapy; dismissed Ground 2.
• Education Tribunal for Wales: By a decision dated 25 November 2024, allowed the mother’s appeal against the Council’s IDP and determined the required speech and language therapy and occupational therapy provision.