EAM v East Sussex County Council

SPECIAL EDUCATIONAL PROVISION IS NECESSARY IN ACCORDANCE WITH AN EDUCATIONAL, HEALTH AND CARE PLAN FOR A CHILD WITH ELECTROMAGNETIC HYPERSENSITIVITY

EAM v East Sussex County Council [2022]; UKUT 193 (AAC)

A brief background:

The parents bought two cases, raising different concerns within each. Both sets of concerns, however, related to their daughter’s electromagnetic hypersensitivity, associated with WIFI signals, resulting in her need for a low electro-magnetic environment for her schooling. The parents requested that an Educational, Health and Care Plan (“EHCP”) be put in place. On 22 July 2022, (after decisions by 2 Local Authorities, 3 hearings before the First-Tier Tribunal (“the FTT”) and 2 appeals to the Upper Tribunal) the Upper Tribunal Judge Jacobs set aside the FTT’s decision on the basis it had made an error on a point of law. The Upper Tribunal held that a EHCP must be prepared and maintained.

The legislation:

Judge Jacobs considered the following sections of the Children and Families Act 2014 (“CFA”), when coming to its decision:

a) Section 20 – when a child or young person has special educational needs

Section 20 (1), (2) (a), (2) (b)

b) Section 21 – special educational provision, health care provision and social care provision

Section 21 (1) (a – d), (2), (3), (4), (5)

c) Section 36 – assessment of education, health and care needs

Section 36 (1), (2), (3), (4), (5) (a), (5) (b) d) Section 37 – education, health and care plans Section 37 (1) (a), (1) (b) e) Section 51 – Appeals Section 51 (1), (2) (b) f) Section 83 – Interpretation of Part 3 Section 83 (3) He also considered Section 6 of the Equality Act 2010 (“EA”), which defines “disability”, paying particular attention to Section (1) (a), (1) (b), (2).

d) Section 37 – education, health and care plans

Section 37 (1) (a), (1) (b)

e) Section 51 – Appeals

Section 51 (1), (2) (b)

f) Section 83 – Interpretation of Part 3

Section 83 (3)

He also considered Section 6 of the Equality Act 2010 (“EA”), which defines “disability”, paying particular attention to Section (1) (a), (1) (b), (2).

The FTT’s original reasonings:

1. Did X have a disability under section (2)(2)(b)?
2. Did X require special educational provision under section 21(1)?
3. Was this provision necessary to be made out under a plan under section 37(1)?

The FTT decided that X is disabled by virtue of Section 6 of the EA, and under section 20 (2)(b) of the CFA. However, it decided that X did not require special education provision under section 21 (1) of the CFA. That said, the FTT did not consider it necessary to deal with the third issue but when on to do so anyway so that the Upper Tribunal could remake that decision, if necessary. The FTT gave the view that “if a low electro-magnetic environment was special educational provision, then it was necessary for provision to be made with a plan under section 37(1). It refused to consider the difficulty that the Local Authority would have in identifying such a school and the costs involved on the ground that those matters were irrelevant”.

Reasonings of Judge Jacobs:

1. The FTT went wrong in law and confused “educational provision” and “educates”: Section 21 of the CFA defines educational provision and section 21 (5) of the CFA refers to health care provision which educates or trains a child. The FTT used both terms as interchangeable and treated authorities relating to the latter as relevant to the former. Judge Jacobs commented that a provision may be educational without educating the child. He gave the example of a child wearing a hearing aid and their school using a loop system so that the child can hear the lessons. The microphone and loop system are both educational provision but they do not educate the child. Whilst the FTT did set out section 21 correctly in some aspects of its decision, there were unmistakeable signs of confusion in important parts. The FTT misdirected itself on the law and did so in a way that affected its reasonings on key issues.
2.  The FTT’s approach to the nature of educational provision: Judge Jacobs then went on to analyse the FTT’s approach to the nature of educational provision and considered that it was flawed. Judge Jacobs considered that the FTT’s approach led it to take a narrow view of what was and what was not educational provision – it concentrated on the cognitive aspects of learning.
3. Health care provision: Judge Jacobs decided to put aside the possibility of an overlap between special educational provision and health care provision, as section 21 of the CFA deals with this by providing for health care provision to be treated as special educational provision, providing that it educates or trains the child. The provision sought in this case was a wired internet connection. However, this is not a health care provision as defined in section 21 (3) – the NHS do not recognised X’s condition as a medical one. Further, the provision itself does not educate or train.
4.  X is disabled: Judge Jacobs accepted and adopted the analysis of the FTT that X is disabled. However, he raised concerns with the nature of its reasoning. In part, the analysis was an unexceptional assessment of the evidence before it. However, Judge Jacobs raised concerns with the rest of the analysis being based on the failure of the Local Authority to produce its own evidence or to challenge evidence given by the parents.
5.  The provision of a wire internet connection is educational provision: A useful starting point was the finding of X’s disablement. Her parents did not argue that she had any intellectual or cognitive impairment that caused her difficulty in learning, so she did not satisfy section 20 (2)(a) of the CFA. She did, however, satisfy section 20 (2)(b). X’s condition prevented or hindered her making use of facilities which others of her age can use i.e. computers operating by WIFI and the programmes running the computers. In terms of the SEND Code of Practice, X’s problems lie with communication (paragraph 6.28) and sensory needs (paragraph 6.34). The use of computers and programmes is now an integral feature of how education takes place in school – their use is no longer marginal or peripheral. Judge Jacobs went on to clarify that he was not using the Code as a definition of ‘educational provision’, but was using it in a way to assist with what may and may not amount to special educational provision. The FTT had to have regard to the Code. The evidence suggests that it is not a case of X being unwell and finding it difficult to concentrate. Her symptoms are described as debilitating when they occur – to the extent that she was out of school for a year. Therefore, some provision is required to render her education effective and she requires special educational provision.
6.  Special education provision is necessary in accordance with an EHCP:

The FTT gave its opinion that an EHCP should be prepared and maintained to which Judge Jacobs agreed.

In coming to the decision, two factors were considered – certainty and finality.

• The case had been going on for 5 years. X was soon to be studying for her GCSEs.
• In addition, the FTT provided foundation for Judge Jacobs to re-make its decision, giving notice to the Local Authority. Despite this, the Local Authority did not address that foundation directly.

Nothing Judge Jacobs heard undermined the FTT’s reasoning on the need for the EHCP.