Does a SEND Child Need a Waking Day Curriculum?

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Sarah Woosey

Interim Head of Education Law

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Does a Waking Day curriculum still exist?

Every child deserves access to a quality education tailored to their individual needs and abilities. This is especially true for children with Special Educational Needs and Disabilities (SEND). In the UK, a key mechanism for ensuring that children with SEND receive the support they require is the Education, Health, and Care (EHC) Plan.

While the term "Waking Day Curriculum" is not standard in the educational lexicon, it is language that Education Lawyers have used for years. We look at what it is but also the recent move away from such language and what this means for children who may need education throughout the waking day.

A child sitting on the floor in a playground


What is a Waking Day Curriculum?

In its simplest form, a waking day curriculum is a curriculum which is delivered across the waking day. A child may require such a curriculum when their learning needs are such that they simply cannot be met from within the usual school day (i.e 9am-3pm). As a result, children who require a waking day curriculum will often require a placement in a residential school.

The term has been used for many years but the Upper Tribunal case of London Borough of Southwark v WE (Alternate Person for OA [2021] UKUT 241 (AAC) warned against tribunals finding a need for such an ‘ill defined’ term. The judgment placed more pressure on practitioners and parents to really define exactly what it is that a child requires which needs to be delivered beyond the school day. The impact of this decision is very much seen by our Education Lawyers in their day to day work and it is now rare to see a Tribunal order a child to receive a waking day curriculum. Instead, you are more likely to see an order for education beyond the school day or similar terminology used. It is also crucial in these appeals that the appropriate level of specification and quantification appears in Section F of an EHCP to really demonstrate the time needed.

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Education or Social Care Need?

The battle between whether or not a child/young person’s need is an education or social care need is often key to a decision on whether a ‘waking day curriculum’ is required. A waking day curriculum is not required to meet social care needs. However, that is not to say that social care needs are not relevant to appeals.  Our Education Lawyers deal with cases where a residential school placement may well be the most cost-effective option of meeting a child’s needs. If this is the case, then a residential school may still be ordered by the Tribunal without necessarily finding the need for a waking day curriculum.

A previous case dealt with by our Education Lawyers was an appeal for a placement at a residential school to be named in the case of a child with complex needs. The Local Authority had refused to name the residential placement in the Education, Health and Care Plan (EHCP), on the basis that there was a nearer suitable day school placement available and that extra support could be obtained from the Council’s social services department to assist with meeting the child’s needs outside of school hours.

The Local Authority argued that to name the parents’ preference would be an inefficient use of resources, as the day school and social services package combined was a significantly cheaper option to the residential placement.

Our lawyers argued that the day placement wasn’t suitable and that due to the nature of the child’s educational needs, they required a curriculum throughout the day and not social care support.

A child at school drawing a picture

What Did the First-Tier SEND Tribunal Consider?

The Tribunal had to consider whether or not the child’s needs were educational or social care needs, and whether education was required beyond the school day. The case turned on this and was determined on the basis of ‘suitability’ of the two school schools in question.

The Tribunal agreed that the parents’ preference of placement was suitable and the Local Authority’s was not as it couldn’t provide a curriculum beyond the school day which they determined was required. They therefore ordered that the child should attend an independent special school, for 52 weeks a year.

Given that the annual cost of the placement was a large six figure sum, the case was very hard-fought by the Local Authority.

Some appeals for a residential placement aren’t determined on suitability as the First-Tier SEND Tribunal might be convinced that the parents’ and Local Authority’s preferred placements  can both meet need. If this happens, the Tribunal will then consider costs for the placement and whether naming the parents’ preference would be an inefficient use of resources.

What’s taken into account in determining whether a placement is an ‘inefficient use of resources?

If the Tribunal is of the view that both the parents and the Local Authority’s placement can meet needs, it looks at the cost of each. Importantly, this must also consider other relevant costs to the public purse such as home to school transport, therapies and social care.

Due to how expensive residential school placements are, it’s often the case then when you first consider the costs, that it would be hard to imagine that the parents’ preference of placement wouldn’t be an inefficient use of resources.

However, as Education Lawyers we often find the social care package provided by the Local Authority isn’t sufficient and once the adequacy of the social care package is challenged and the true costs of such considered, the costs of the ‘cheaper’ arrangement are likely to be much closer to the costs of the parents’ preferred choice and, in some cases, they can be more.

A teacher and school child giving each other a high five

Simpson Millar Can Help You

If you're worried that your child doesn’t have the right provisions/placement named in their EHCP to meet their needs, you don’t need to fight them alone. Our expert team of Education Solicitors and specialist Lawyers are friendly and understanding, and can help you get the right education provision your child requires.


Children and families act 2014 (no date a) Available at: (Accessed: 09 February 2024).

(No date) British and Irish Legal Information Institute. Available at: (Accessed: 09 February 2024).

(No date) British and Irish Legal Information Institute. Available at: (Accessed: 09 February 2024).

Sarah Woosey Profile Picture

Sarah Woosey

Interim Head of Education Law

Areas of Expertise:
Education Law

Sarah re-joined Simpson Millar in 2018 having previously trained at the firm before spending a number of years working for a different national firm. She has a number of years’ experience in a range of Education Law and Social Care issues and has focused particularly on getting suitable education and/or services for children and young adults with a wide range of Special Educational Needs and/or disabilities.

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