R & RK v Hertfordshire County Council

Special educational provision and health care provision may overlap. Health care provision that educates or trains a child must be treated as special educational provision. The First-tier Tribunal should ordinarily perform that classification under section 21(5) before deciding what direct educational provision is required, because this determines which body bears the duty to arrange the provision. The tribunal may nevertheless consider direct educational provision first as a matter of practicality, provided it applies section 21 correctly and avoids duplication. Classification is a case-specific judgment, not a free choice. On an appeal under section 51, the tribunal may classify health or social care provision only to the extent that it becomes special educational provision; it has no general jurisdiction to rewrite provision remaining within health or social care.

The appeal concerned the education, health and care plan for M, a six-year-old disabled child with severe cerebral palsy, visual impairment and learning difficulties. The plan included some occupational therapy in Section F, as special educational provision, but other occupational therapy was treated as health care provision or excluded.

The parents appealed the First-tier Tribunal’s decision of 16 September 2024. They argued that the tribunal had applied section 21 of the Children and Families Act 2014 in the wrong order and had given inadequate reasons for treating occupational therapy as health care provision rather than direct special educational provision. The central issues were the relationship between sections 21(1) to (2) and 21(5), and the materiality of any error in the tribunal’s approach.

1. Appeal dismissed. The First-tier Tribunal’s decision did not involve an error of law under section 12 of the Tribunals, Courts and Enforcement Act 2007.
2. The statutory provisions must be read together and in context. There is no rule that section 21(1) must always be applied before section 21(3) and (5). “Educational provision” and “educates or trains” are different expressions. Educational provision may therefore be wider than provision that itself educates or trains.
3. Health care provision may overlap with educational provision. Under section 21(5), health care provision that educates or trains must be treated as special educational provision instead of health care provision. The practical consequence is that the local authority bears the duty to secure it under section 42(2), rather than the responsible commissioning body arranging it under section 42(3).
4. The First-tier Tribunal’s task differs according to the classification. For direct special educational provision, it may decide what provision the child needs and may add, amend or remove provision. For health or social care provision, its jurisdiction is limited to identifying what educates or trains and moving that part into special educational provision. It cannot alter provision that remains health or social care provision, or insert such provision into Section F.
5. The proper logical order is ordinarily to classify health care provision under section 21(5) before considering direct educational provision. This avoids duplication and identifies the body responsible for arranging the provision. A tribunal may nevertheless consider educational provision first as a practical matter, provided its final application of section 21 is correct.
6. Classification is a case-specific evaluative judgment, not an unfettered choice. The tribunal rationally rejected or limited the disputed occupational therapy because the relevant expert recommendations lacked adequate supporting reasons, other evidence did not support them, or the proposed provision was inappropriate. Those reasons would have supported the same result under either section 21(5) or the test for direct special educational provision. Any mistake about the order of analysis was therefore immaterial.

• Upper Tribunal (Administrative Appeals Chamber) — The appeal against the First-tier Tribunal’s decision of 16 September 2024 was dismissed. The Upper Tribunal held that the decision did not involve an error on a point of law under section 12 of the Tribunals, Courts and Enforcement Act 2007.
• First-tier Tribunal (Health, Education and Social Care Chamber) — Reference EH919/23/00425. Decision dated 16 September 2024.