Extra curricular programmes of education and residential placements

Martha Glynn and James Dix set out the key points from a recent Upper Tribunal decision on whether a young person should have a waking-day curriculum and a residential placement.

London Borough of Southwark v O (a young person)

The Upper Tribunal has recently allowed an appeal by Southwark Council of a First Tier Tribunal decision which had ordered a waking-day curriculum and residential placement for a young person. This decision is a helpful reminder of, firstly, the structured approach a Tribunal must take when addressing these kinds of disputes, and secondly, their obligation to provide adequate reasoning for their decisions.

O is 18 years old and has a diagnosis of autism and global development delay with learning difficulty and associated anxiety issues. O, with the assistance of her mother, sought a ‘waking day curriculum’ and a residential placement to be named in Section I. The First-tier Tribunal allowed the appeal and ordered these amendments be made to the EHC Plan. The basis for the finding that a waking day curriculum was required was the Tribunal’s finding that O could not generalise skills learned in one setting to another, and that consistency of support was required.

The LA appealed the decision. The three grounds of appeal to the Upper Tribunal were:

1. Ground 1: The Tribunal erred in law through failing to follow the correct approach for determining whether a child has special educational needs which require an extended day curriculum.
2. Ground 2: The Tribunal’s key findings impermissibly relied on opinions of the private parental Occupational Therapist, which did not fall within the scope of her professional expertise; alternatively, the Tribunal gave insufficient reasons for finding that the opinions were within the scope of her expertise; and
3. Ground 3: the Tribunal’s finding that O could not generalise her skills was irrational and not capable of being reasonably made on the evidence.

Permission was granted by the Upper Tribunal in relation to Ground 1, and permission to appeal on Grounds 2 and 3 was to be determined at the actual appeal hearing.

SV Law Solicitors of Euston, London acted for the successful Local Authority with Steve Broach KC instructed. Coram Solicitors, instructing John Friel and Jim Hirschmann, appeared for O.

LA appellant’s submissions

Although it was accepted that O needed consistency, the LA submitted that the Tribunal’s reasons as to why she required an extracurricular programme of education were lacking. The LA submitted that the correct approach to this question is:

1. Simply because a child or young person needs consistency of approach (i.e. to be dealt with out of school hours in the same way as within school hours), this is not necessarily an educational need which should be met beyond the school day in a residential setting: Hammersmith and Fulham v JH [2012] UKUT 328 (AAC) §18-19;
2. The question to be asked is whether the “need for a consistent program was such that …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; and
3. There is a 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) §11-12. This case sets out important analysis of the staged approach required to evaluate need and provision.

The LA emphasised that support to generalise skills is not necessarily educational provision (GL v West Sussex CC [2017] UKUT 414 (AAC) at §32) and that ‘consistency alone would only justify programmes of learning beyond the ordinary school day in extremely rare cases’ (Westminster CC v FtT [2023] UKUT 177 (AAC) at §131. The LA submitted that the Tribunal did not address the issue of fact of whether this support constituted educational provision, nor did they explain the nature or extent of the educational provision it considered that O needed outside of the normal school day.

Respondent’s submissions

The Respondent submitted that O’s significant and complex needs provided substantial evidence to support the finding of the need for an extended day curriculum in a residential school. The only alternative – a theoretical social care provision outside of normal school hours – was a vague suggestion made by the Appellant, without detail as to how it should be achieved. The Respondent submitted that the case law the LA relied upon were specific to their own facts and evidence.

The Law

In setting out the law, the judge emphasised the need to follow a logical chain of analysis from O’s needs to the provision required to meet those needs and then to the institution where that provision can be provided. In relation to a waking day curriculum, the judge referred to Paragraph 12 of LB Southwark v WE:

‘An argument for a waking day curriculum straddles Sections F and I. Whether it is required is part of the analysis of special educational provision. Whether the provision from the curriculum requires a residential placement is part of the analysis of placement…a residential placement is not necessarily required to deliver a waking day curriculum’.

Conclusion

The Upper Tribunal found that the First Tier Tribunal fell into error of law arising from a lack of adequate reasoning.

1. The FTT did not explain why in O’s case:
2. The need for consistency was such that it amounts to an educational need which it is necessary to meet beyond the school day (Hammersmith and Fulham v JH), and
3. The need for a consistent programme was such that education could not reasonably be provided unless accommodated on site where O was educated (Hampshire CC v JP).

It also found that the Tribunal did not adequately evaluate what out of school-hours provision O required and why (LB Southwark v WE §12).

Crucially, the judge said ‘it is not enough to rely on the opinion of experts without explaining the rationale for doing so. If the Tribunal inferred from O’s significant special educational needs that a particular type of special educational provision was required, that was also an error’ [30].

The judge found that Tribunal failed to adequately explain why O’s need for provision falls on the ‘education/training’ side of the line as opposed to other forms of support.

In addition, in reaching its conclusion on residential placement, the Tribunal had taken into account: (1) the lack of an alternative social care provision plan from the Appellant, and (2) the fact that O’s mother could not be required to provide special educational provision at home. However, the Upper Tribunal was not persuaded by the Respondent that in doing so the Tribunal considered the only practical and realistic option, applying S v City and Council of Swansea [2000] ELR.

Therefore, points of note in this judgment include:

1. A reminder that a residential placement is not necessarily required to deliver a waking day curriculum, and as such Tribunal panels are required to undertake the analytical steps set out in case law to determine both whether the need for consistency amounts to an educational need, and whether the need for a consistent programme is such that education could not be reasonably provided unless accommodated on the site where O was educated (Hampshire CC v JP).
2. The dispute should be focused on disputed wording in Section F, rather than an overarching approach with a focus on the question of whether an extended day curriculum was required.
3. A lack of evidence before the Tribunal on what special educational provision was required did not mean that the residential placement was the only practical and realistic option, but rather that the Tribunal were not in a position to undertake the required analysis.

The second ground of appeal was not addressed in the judgment, as the Appeal was allowed on the first ground. This concerned alleged overreach by an expert and Tribunal’s reliance on the expert’s evidence for making decisions that were not within the scope of the expert’s expertise. In this case, the overreach alleged was an Occupational Therapist’s evidence on the need for an extended day curriculum. A decision on this might have also been of great assistance to local authorities, but as Ground 1 was allowed, there was no need for Upper Tribunal to decide this Ground.

Martha Glynn and James Dix are Senior Paralegals at SV Law, Euston, London.

SV Law lawyers are holding an all-day SEN Tribunal Day exclusively for local authorities and LA facing NHS therapists at their Euston offices on Tuesday, 13 May 2025, at which specialist barristers Steve Broach KC and Anna Tkaczynska will also talk. Booking details can be found here or via This email address is being protected from spambots. You need JavaScript enabled to view it..