Bespoke provision of education outside a conventional classroom – legal update

Authored by Alexander Davenport,  & Erin Smart, Education and Human Rights Expert

Education is a vitally important part of a child’s development and this will normally be achieved within a classroom setting, however, in certain circumstances this is not always possible due to a child’s special needs. In such circumstances it is required that a bespoke package of education is put in place. If a child has special educational needs, this should be properly recorded in their Education, Health and Care Plan (EHCP) in accordance with the Special Education Needs and Disability Regulations 2014 (SEN Regs).

What information is included in an EHCP?

An EHCP will set out, under separate sections, the following information:

• the views, interests and aspirations of the child and his parents or the young person
• the child or young person’s special educational needs (“SEN”)
• health care needs which relate to their SEN
• social care needs which relate to their SEN or to a disability
• the outcomes sought for the child or young person;
• the special educational provision required to meet their SEN;
• any health care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN;
• any social care provision required from social services under the Chronically Sick and Disabled Persons Act 1970, and/or reasonably required by the learning difficulties or disabilities which result in the child or young person having SEN;
• the name of the school or other institution to be attended by the child or young person, and the type of that institution (or just the type if no specific institution is named);
• details of any direct payment which will be made;
• copies of all of the advice and information obtained as part of the EHC needs assessment.

Out of school education

The appeal in NN v Cheshire East Council (SEN) [2021] UKUT 220 (AAC) concerned how the issue of bespoke provision of education outside a conventional classroom setting should be dealt with by a tribunal; as well as consideration of education otherwise than at a school.

It arose from the case of child diagnosed with Autism Spectrum Disorder and a profile suggestive of Pathological Demand Avoidance; two very complex needs that require bespoke approaches to education which may not always be readily available within a school setting. The child was reported to be difficult to assess and had been educated at home by his mother and grandmother at home and was not attending school. The judgement noted that his education had followed no apparent organised pattern. The First Tier Tribunal initially named a school in Section I of the EHC but simply put “school A, bespoke package”. There was agreement between the parties that the child’s educational provision would not be provided in school, at least to start with, and as such an appeal was made to the Upper Tier Tribunal (UTT) requesting guidance on the issue of what should go in Section I of the EHCP in such cases.

The guidance given by the UTT set out that any Tribunal assessing this issue is obligated to consider Section 61 of the Children and Families Act 2014 and must separately ask whether it is satisfied that it would be inappropriate for:

• any special educational provision that it has decided is necessary for the child to be made in any school; and,
• any part of the provision to be made in any school.

When assessing these issues the Tribunal should look at all the circumstances surrounding the child and take into consideration the specific facts of the issues at hand. Circumstances that should be considered might include:

• the child’s background and medical history;
• the particular educational needs of the child;
• the facilities that can be provided by a school;
• the facilities that could be provided other than in a school;
• the comparative cost of the possible alternatives to the child’s educational provisions, either at school or elsewhere;
• the parents’ wishes (although they are not generally determinative); and
• any other particular circumstances that apply to a particular child (TM v London Borough of Hounslow).

Having considered all the circumstance if the Tribunal is then not satisfied that it would be appropriate for any such special educational provision to be made in any school, then Section I must be left blank.

If the Tribunal is satisfied that the child is able to be present at a school or type of school for at least part of the time, that will then be sufficient to enable a school/type of school to be specified within Section I of the EHC. If an attending provision is provided by the school, as part of a bespoke package, outside a conventional classroom setting is available it will nonetheless mean that the school is to be attended by the child within the meaning of regulation 12 of the SEN regs.

It was made clear by the UTT that what is specified in Section I must strictly be limited to the of name the school and type of school to be attended by the child, or where the name of the school is not specified, the type of school to be attended by the child. No more and no less.

Any education provided for at a child’s home cannot be named in Section I and any special educational provisions made otherwise than in a school or type of school will be set out in Section F of the EHC.

A copy of the Tribunal decision and guidance can be found here.

Irwin Mitchell has an specialist education law team who have expertise in special education needs law and regularly represent clients in the SENDIST Tribunal. To find out more about the ways we can support you and your child read more here.

Erin Smart commented: “This is an important case highlighting the considerations needed when deciding what should be named in Section I for an EOTAS package. It is helpful to have this guidance for those with EHCPs where a school placement is not possible, for whatever reason.” ”