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• 14 Feb 2022

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The key in each case is that (1) the provision in question (whether initially seen as educational provision or as SCP) involves education and/or training (which then means SCP is deemed SEP under CFA 2014 s21(5)) and (2) the need for it goes beyond or outside the ordinary school day.

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: 08.02 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: 08.13 Is there a particular rule about when a child requires out of hours SEP?, 08.135 Where a CYP requires SEP outside the school day does that necessarily mean they require a residential placement?

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: 08.03 Can learning life skills be SEP?

The term is often used where it is said a child needs “consistency of approach”. It has been said that a “waking day curriculum” 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 [sic] learns within the school and school room”: S v SENDIST [2007] EWHC 1139 #17, #19. 

However, a need for 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: LB Hammersmith and Fulham v JH [2012] UKUT 328 (AAC) #18-19. This does not mean in a particular case the FTT cannot lawfully decide that a need for a consistency of provision is special educational provision in the circumstances of the particular young person, but it would be in extremely rare cases where consistency alone would justify programmes of learning beyond the ordinary school day: Westminster CC v FTT [2023] UKUT 177 (AAC) #128, #131.

In many cases (particularly involving a young person) there will be no dispute that provision in general is required outside of the school or college day. For example, a young person who is learning to cook in the college setting may need provision in the home setting to generalise those skills. The question in this situation is whether or not that provision is SEP or SCP (SEP may either be direct educational provision because it is itself educational or training provision; or deemed provision because it is social care provision which educates or trains: CFA 2014 s21(1) and (5)). 

More: 08.02 Is there a rule specifying what counts as SEP?

Where it arises, the FTT is required to determine whether the provision is SEP or SCP. 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.

This will involve the FTT often needing to consider particular SEP specifically to determine whether it is SEP or SCP. Taking a “global” approach (i.e. deciding in general terms whether an extended day curriculum is required as if that were a freestanding and overarching question) is not legally correct: HJ and MM v Birmingham CC [2025] UKUT 323 (AAC) #54-61.

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. 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: 08.22 Is the duty on the LA to secure the provision in Section F absolute?
More: 08.23 Can the LA require parents to provide education?

[updated 01/03/26]



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14 Feb 2022

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