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Neutral Citation Number:	2015 UKUT 316 AAC
Reported Number:
File Number:	HS 3211 2014
Appellant:	H
Respondent:	a London Borough (SEN)
Judge/Commissioner:	Judge C G Ward
Date Of Decision:	04/06/2015
Date Added:	24/06/2015
Main Category:	Special educational needs
Main Subcategory:	Special educational provision - other
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2016] AACR 2. Special educational needs – statement – behaviour being learned is relevant to whether pupil has learning difficulty but not ground for excluding from special educational provision which the learning difficulty requires Z had special educational needs arising from Asperger’s Syndrome and a history of significant mental health difficulties. He had a statement of special educational needs maintained by the local authority and was placed at school A on a full-time residential basis, supported by funding from both the local authority and National Health Service. However, the local authority did not accept that Z’s harmful sexual behaviour gave rise to a special educational need requiring special educational provision. The First-tier Tribunal (F-tT) concluded that the sexualised behaviour had been learned through inappropriate contexts and was an issue at the medical rather than the educational end of the spectrum. It therefore upheld the local authority’s view and ordered the amendment of the special educational needs statement to include in Part III or “Special Educational Provision” a sex education programme and, in Part VI or “Non-Educational Provision” for therapy to be delivered by a suitable person. The question before the Upper Tribunal (UT) was whether a substantial part of the provision ordered by the F-tT for addressing Z’s sexual behaviour was correctly included within Part VI rather than in Part III of the special educational needs statement. Held, allowing the appeal, that: 1. the question whether provision was in response to behaviour that was learned was not the correct legal test for determining whether it was special educational provision. Rather the question was whether the particular provision required to address it was directly related to Z’s learning difficulty (paragraphs 24 and 25); 2. the F-tT erred in law in applying a test that was relevant to whether something was a learning difficulty also to whether it was the proper subject of special educational provision, and by approaching the necessary link between learning difficulty and special educational provision in an incorrectly restrictive way, which meant that it failed to consider all the material evidence (paragraph 26); 3. the two questions for the F-tT were whether there was a learning difficulty and if so whether it called for special educational provision. Both were questions of fact in the sense that if it had addressed the right questions, the conclusions were for the tribunal alone (paragraph 28); 4. it was not impossible that the provision required could have fallen to be placed in Parts V and VI of the statement, but where on the (educational/non-educational provision) spectrum the provision in question needed to be put should have been approached through the correct legal questions (paragraphs 28); 5. the flaw resulting from the use made of learned behaviour by the F-tT was sufficient to justify the UT in not exercising its discretion to refuse to set aside the tribunal’s decision (paragraphs 29 and 30). The judge set aside the decision of the F-tT and remitted the appeal (following further submissions) to an identically constituted panel to be re-decided in the light of his decision.
Decision(s) to Download:	[2016] AACR 2ws.doc