Upper Tier Tribunal clarifies the scope of “Educational Provision” under ALNET

Cyngor Gwynedd v Mrs Ellen Jones and Mr Michael Jones (SEN): [2026] UKUT 205 (AAC)

The decision was published on 18 June 2026 and a copy of the judgement can be found here.

Case background

The appeal arose from a decision of the Education Tribunal for Wales (ETW), which had amended a child’s Individual Development Plan (IDP) to require that, at school, the child be supported at all times by two suitably qualified and trained carers (referred to as “competent carers”), treating that provision as additional learning provision (ALP). The IDP specified that one competent carer was to be provided by the Health Board and one by the Council. The Council appealed that decision.

The child had very significant physical and respiratory needs. The long-standing clinical position of the Health Board and treating clinicians was that, both at home and at school, the child required one competent carer together with a second responsible adult who was tracheostomy-aware, rather than a second fully competent carer. That arrangement had been repeated in care plans, risk assessments and earlier IDPs, and the care had not previously been framed as ALP.

There had also been judicial review proceedings concerning the delivery and funding of the school care package. Those proceedings were resolved on the basis of a phased return to school, with the Health Board providing one competent carer and the Council funding a second tracheostomy-aware adult. The later ETW appeal then sought to go further by requiring two competent carers and by classifying that provision as ALP within the IDP.

Upper Tier Tribunal decision

The Upper Tier Tribunal allowed the Council’s appeal and remade the decision by removing the ETW’s requirement for two competent carers from the IDP.

The Tribunal held that the ETW had erred in law in treating the health care provision as ALP simply because it was required to enable the child to attend school. The statutory definition in section 3 of the 2018 Act requires “educational provision”. The fact that a provision is necessary to access education does not, by itself, make it educational provision.

The Tribunal also found that ETW’s factual conclusion that two competent carers were required at school was unsustainable on the evidence. The consistent expert clinical evidence was that the relevant risk could be managed by one competent carer plus a second tracheostomy-aware adult, and the ETW had not adequately engaged with that body of evidence.

Legal analysis and significance for education law in Wales

Significantly for local authorities, health boards and education law practitioners in Wales, the decision provides senior court guidance on the meaning of “educational provision”.

The judgment draws a critical distinction between:

• provision that has an educational function, and
• provision that is essentially therapeutic, medical or care support, even if it is indispensable to school attendance.

The Tribunal accepted that some health care can amount to educational provision in a fact-sensitive case but indicated that nursing-type or specialist medical care may, depending on the facts, be properly characterised as “pure health care” rather than education. On the facts of this case, the competent carer role was treated as medical rather than educational.

The Tribunal treated a number of English cases decided under legislation which preceded ALNET as relevant because, the Tribunal found, section 3 of ALNET uses materially the same concept and substantially the same wording as the predecessor provisions in the Education Acts of 1993 and 1996. Therefore, there was a presumption that the Senedd intended educational provision to bear the same meaning. The Tribunal derived most assistance from the decision in City of Bradford Metropolitan Council v A [1997] ELR 417, which concerned whether nursing care required for a child at school was educational provision or non-educational provision.

For future Welsh cases, the key question will be not whether the provision is necessary for attendance, but whether, properly analysed, it is educational provision within section 3 of the 2018 Act.

At the time of publication, this decision was subject to an application for leave to appeal to the Court of Appeal.

Martin Jones, Partner and Head of Regulatory, and Laura Zverev, Senior Associate, at Hugh James