Law Report: Therapies were special educational needs

Thursday Law Report: 17 June 1999 London Borough of Bromley v Special Educational Needs Tribunal and others Court of Appeal (Lord Justice Evans, Lord Justice Mummery and Lord Justice Sedley) 26 May 1999

IT WAS open to a Special Educational Needs Tribunal to conclude that the needs of a severely disabled child for physiotherapy, occupational therapy and speech and language therapy formed part of his special educational needs for which his local education authority was obliged to make provision.

The Court of Appeal dismissed, in part, the appeal of the London Borough of Bromley against the dismissal of its appeal against a decision of a Special Educational Needs Tribunal as to the provision it was required to make for the special educational needs of a child, S.

S, aged 12, had suffered severe trauma at his birth which had resulted in lifelong physical and mental disability. His local education authority, having assessed his educational needs under section 323 of the Education Act 1996, made a statement of his special educational needs pursuant to section 324 of the Act, in which it proposed that he should be educated at a day school.

S's parents challenged the statement on the basis that his needs for physiotherapy, occupational therapy and speech and language therapy out of school hours and out of term time were, at least in part, educational needs, and that they could not be addressed at a day school. They contended that the special educational provision which the authority was obliged to make for S was residential provision throughout the year.

The Special Educational Needs Tribunal concluded that S's acknowledged need for the various therapies formed part of his special educational needs, with the consequence that the provision of those therapies was part of the special educational provision which the authority must make for him. The authority's appeal against that decision was dismissed.

Timothy Straker QC and David Wolfe (Borough Solicitor, London Borough of Bromley) for the authority; Richard Gordon QC and Kate Markus (Leigh Day & Co) for the tribunal and the parents.

Lord Justice Sedley said that special educational provision was, in principle, whatever was called for by a child's learning difficulty. A learning difficulty was anything which made learning significantly harder for him than for most others or which hindered him from making use of ordinary school facilities. What was special about special educational provision was that it was additional to or different from ordinary educational provision.

When it came to the statement under section 324 the educational authority was required to distinguish between special educational provision and non-educational provision. Two possibilities arose: either the two categories shared a common frontier, so that where one stopped the other began; or there was between the unequivocally educational and the unequivocally non-educational a shared territory of provision which could intelligibly be allocated to either.

To adopt the first approach would be to read into the legislation a sharp dichotomy for which Parliament could easily have made express provision had it wished to do so. Moreover, to interpose a hard edge or a common frontier did not get rid of definitional problems: it simply made them more acute.

The potentially large area of provision which was capable of ranking as educational or non-educational had not been made the subject of any statutory prescription precisely because it was for the local education authority, and if necessary the tribunal, to exercise a case-by-case judgment which no prescriptive legislation could ever hope to anticipate.

The tribunal's conclusion that physiotherapy, occupational therapy and speech therapy were all measures which related directly to S's learning difficulties, and therefore amounted to a special educational provision, was a conclusion properly open to it, provided that it was not read as meaning that those therapies were exclusively educational. What mattered was that, in the tribunal's judgment, S's education called for day-long and year-round attention to many of his physical needs.

Kate O'Hanlon

Barrister