Q:

08.13 Is there a particular rule about when a child requires out of hours SEP?

Noddy 'no-nonsense' Guide

Noddy 'no-nonsense' Guide
Authors: David Wolfe QC, Leon Glenister
14 Feb 2022

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    It has been said that a “waking day curriculum” (which in practice is likely to lead to a requirement for a residential school placement) may be justified if the CYP needs to “translate into his home and social and indeed all areas of his life and functioning, the skill which he learns within the school and school room”: S v SENDIST [2007] EWHC 1139 #17, #19

    On the other hand, simply because a CYP needs consistency of approach (i.e. to be dealt with out of school hours in the same way as within school hours is not necessarily an educational need which should be met beyond the school day in a residential setting: LB Hammersmith and Fulham v JH [2012] UKUT 328 (AAC) #18-19

    The question to be asked is whether the “need for a consistent program was such that [the CYP’s] education could not reasonably be provided unless accommodated on the site where [the child] was educated”: Hampshire CC v JP [2009] UKUT 239 (AAC)#29

    When finding an educational need for a residential placement, the FTT needed clearly to explain its finding that out of school hours SEP was required: Essex CC v DH (SEN) [2016] UKUT 463 (AAC).

    Accordingly, the term ‘waking day curriculum’ does not, or should not at least, provide a short-cut way of avoiding the need properly to evaluate what out of school-hours provision the child or young person requires, and why: LB Southwark v WE [2021] UKUT 241 (AAC)#5-12. More: Does the term “waking day curriculum” have any legal meaning?

    The focus should be on what SEP the child requires, and when. If the educational provision in question can only be made out of school hours (which means that it is necessarily SEP), then that should be clearly set out in Section F (as being SEP More: Is there a rule about what counts as SEP?), and the question then arises as to whether that necessitates a residential placement in Section I (or whether that our of school hours provision can be arranged by the LA in some other way). More: Is there a particular rule about when a child requires out of hours SEP?

    Examples of that situation might include:

    • the position where more of the provision in question is needed than can be delivered within the hours of the school day;
    • where the child/young person specifically needs that provision throughout their waking hours (or at least beyond the school day); or
    • because the educational provision in question relates to something which does not happen at school, such as teaching the child/young person basic life skills or independent living skills such to dress or wash themselves when they wake up or at bedtime.

    More: Can learning life skills be SEP?

    The key in each case is that the provision in question (whether initially seen as educational provision or as social care provision) involves education and/or training (which then makes it SEP under CFA2014 s21) and the need for it goes beyond or outside the ordinary school day.

    It is not sufficient to say that SCP to help a CYP “to generalise skills learnt at college in out of college time” becomes SEP by virtue of CFA2014 s21(5). The question is whether the SCP falls on the “education and training” side of the line or the “support” side of the line, which is a question of fact and degree for the FTT to determine in light of its own expertise: GL v West Sussex CC [2017] UKUT 414 (AAC)#32.

    It is important also to note that parents/carers cannot be relied on to provide (or be expected or relied on to provide) any SEP in section F of the relevant EHCP. More: Can the LA require parents to provide education?

    It follows that, where a need for educational provision outside the school day has been identified (and specified in section F) the LA cannot avoid the need to arrange that provision by saying that the parents should make that provision at home. More: Is the duty on the LA to secure the provision in Section F absolute?

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    Noddy 'no-nonsense' Guide

    Noddy 'no-nonsense' Guide
    Authors: David Wolfe QC, Leon Glenister