Is A Powered Wheelchair Classed As Special Education Provision In An EHCP?
The Law Of…Considering When Special Educational Equipment Is Special Educational Provision.
A recent Upper Tier Tribunal hearing considered if a powered wheelchair could be special educational provision in accordance with a child or young person’s Education and Health Care Plan (EHCP).
Gregg Burrough, Public Law Solicitor, considers the case, its background and the decision of the Upper Tier Judge in remitting the matter back to the First Tier Tribunal.
A young person, assisted by his mother, lodged an appeal to the First Tier Tribunal against the content of his EHCP.
The young person, aged 20, had extremely limited body movement to the extent that controlling his fingers alone caused him physical and mental fatigue. He attended a non-maintained special school for pupils with profound physical difficulties until July 2016, after which he attended a college on a 52-week residential basis.
The First Tier Tribunal issued a decision on 25 June 2017, following the young person’s appeal.
The First Tier Tribunal directed changes to the contents of his EHCP, which was initially drafted by his Local Authority (LA). The LA appealed this tribunal decision, and in turn, the First Tier Tribunal refused the LA permission to appeal. The LA renewed its request, and the request for permission to appeal was granted. An oral hearing then took place on 15 February 2018.
Special Educational Provision Or Healthcare Provision?
The issue for the Upper Tier Tribunal was whether the provision of a powered wheelchair should be considered special educational provision or healthcare provision. It was submitted during the initial appeal that a powered wheelchair is an essential tool for aspects of the young person’s life. Without the wheelchair he could not access education or make expected progress, nor would he attain the expected outcomes in relation to his independence.
The First Tier Tribunal heard evidence that without a powered wheelchair it would be impossible for him to acquire necessary skills to live as independently as possible. It was submitted that the combination of a communication aid and the powered wheelchair allowed him to move independently, converse with others, and make his own choices and decisions, therefore making it an essential tool in the young person’s life.
The LA did not dispute this, but its evidence was that the wheelchair was provided by the local NHS trust through their respective Wheelchair Services team.
The young person argued the severity of his needs meant in order to achieve his independence, a powered wheelchair must be considered as special educational provision as the specialist communication equipment was mounted on the chair. The young person and his mother also raised concerns regarding the maintenance of the chair as there were fears repairs and adjustments would not be made quickly through the NHS.
First Tier Tribunal Decision
The First Tier Tribunal determined the wheelchair was an ‘inanimate object’ and in isolation stated it could not be seen how it would educate and train the young person.
The Tribunal stated that for the LA to provide the wheelchair as special educational provision would result in a distinction between educational and non-educational activities.
The Tribunal determined the provision of the wheelchair by the Health Service was rightly specified in Section G of his EHCP, as it required it to be provided to him at all times, not just in the residential education setting.
However, the Tribunal also concluded it was essential for his education and training that the wheelchair was fit for purpose and available to him at all times whilst in a learning environment. If the young person were not to have access to his wheelchair for only a short time, it would have a profound effect on the development of his skills, as well as his independent communication skills.
The Tribunal, therefore, ordered the LA to ensure both his wheelchair and his specialist communication equipment was maintained and repaired so that both were always available to him whilst he was in a learning environment for his 52 weeks of college.
The Upper Tier Tribunal judge referenced a specific section of the Children and Families Act (CFA) 2014. He specified that under section 21(5) where healthcare provision or social care provision educates or trains the child or young person, it is then to be treated as special educational provision (instead of healthcare or social care provision).
The First Tier Tribunal, in making the decision, had no jurisdiction over anything other than educational provision. Therefore its role was to classify whether the provision was educational and to include additional direct special educational provision.
'Amounting To Education Provision'
The local authority, through its instructed barrister, appealed to the Upper Tier Tribunal on five specific grounds. The barrister appearing for the young person, assisted by his mother, submitted that, to ensure devices required for access in the education setting are maintained and repaired is, in itself, capable of amounting to education provision.
Additionally, the young person’s barrister submitted that the First Tier Tribunal was wrong in finding the powered wheelchair was not educational provision. He submitted that the wheelchair is as much educational and training as the speech and language communications device mounted on it. It was stated that the young person has to learn to use the powered wheelchair and exercise independent decision making on where he wishes to go, therefore making it educational.
Upper Tier Tribunal Judge Not Satisfied
The Upper Tier Tribunal judge determined the First Tier Tribunal’s use of the words ‘inanimate object’ was unhelpful. He highlighted that objects can be educational training provision as well, such as books for instance.
The Upper Tier Tribunal judge determined that as the First Tier Tribunal had concluded the young person’s use of the wheelchair educated or trained him, he did not see how the provision of the wheelchair was also then not educational.
The Upper Tier Tribunal judge stated the First Tier Tribunal had correctly outlined the importance of the powered wheelchair to the young person’s life. However, he was not satisfied the First Tier Tribunal made adequate findings and gave an adequate explanation as to how the young person’s use of the wheelchair actually educates or trains him. He concluded there were omissions and errors from the First Tier Tribunal resulting in an error of law in the first decision.
The Next Steps
The matter is now brought back to the First Tier Tribunal to rehear the issue of the powered wheelchair alone by way of a new, freshly constitute a panel with both parties at liberty to submit further evidence.
This does not mean the powered wheelchair has been accepted as special educational provision, merely that the initial First Tier Tribunal‘s decision was made following an error of law and must re-determined.
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