The Upper Tribunal has warned of the dangers of over-reliance on ‘waking day curriculum’, overturning a First Tier Tribunal decision. William Haslam looks at the lessons to be learned.
The phrase ‘waking day curriculum’ is increasingly used in SEN appeals, yet the Upper Tribunal has warned that using this ill-defined expression can quickly lead the First Tier Tribunal (FtT) to make errors of law. The problem with using short-hand, non-statutory phrases is not unique to education law. As Lord Clyde stated in Environment Agency v Empress Car Co (Abertillery) Ltd  2 AC 22 such phrases can distract from what the legislation actually requires.
In London Borough of Southwark v WE (Alternative Person for OA)  UKUT 241 (AAC), the Upper Tribunal found the FtT had made an error of law in too readily finding that a waking day curriculum was required. The case was remitted for a rehearing.
The case concerned “O”, a 20-year-old girl with autism and profound learning difficulties. The Local Authority issued an EHC plan, listing a section 41 approved specialist independent college in Section I. The college was not residential but O was to live in supported accommodation. Importantly, the appeal was registered only against Section I. The Tribunal expressed doubts about the accuracy of Sections B and F but did not seek to go against the decision of the parties to focus solely on placement.
The appellant contended that O required a waking day curriculum as Section F of the plan included special educational provision that went beyond normal college hours.
The Tribunal had to decide whether a waking day curriculum was suitable. The Tribunal acknowledged that there is no set definition for a waking day curriculum but that it typically involves educational provision beyond usual college hours (see Hammersmith and Fulham LBC v JH  UKUT 328 (AAC) at ). On this basis, the Tribunal sided with the appellant and picked out specific provisions in Section F which explicitly pointed towards out-of-hours support for O. For example:
“O … will need brief, but daily structure language activities, developed in conjunction with SALT. There activities should be incorporated into her daily learning programme (school and home)”
This led the FtT to conclude a waking day curriculum was needed. However, the Upper Tribunal overturned this decision for two reasons.
First, the Tribunal made a “fundamental error” by going beyond Section F of the Plan when deciding if a waking day curriculum was required. The Tribunal only had to interpret which placement was suitable for O based on the needs in Section B and corresponding provision in Section F. Instead, the Tribunal wrongly listened to the local authority’s concerns about the waking day curriculum that were not contained in the plan. For example, the LA believed a waking day curriculum would deprive O of down-time and cause her anxiety. Yet, the Upper Tribunal confirmed that this evidence was “irrelevant to the interpretation of Section F” [at 22].
Judge Jacobs suggested that the Tribunal’s unlawfully wide consideration was likely a result of focussing too heavily on the question of a waking day curriculum which distracted from the strict interpretation of Section F it should have undertaken.
Secondly, the FtT failed to take into account the entirety of Section F when deciding on the placement. Specifically, the Tribunal did not acknowledge “who” will carry out each respective provision. For the provision quoted above, the plan stated this was to be carried out by “Parents and family to integrate SALT targets into home life”. This qualifies the provision and weakens the argument that out-of-college educational provision is needed. The FtT was also criticised for being selective in picking out Section F provisions most supportive of a waking day curriculum. Instead, all the provision identified in Section F should be considered when forming a view of the suitable placement.
Two practical points can be noted from this judgment.
First, it highlights the dangers of appealing Section I without also appealing sections B and F. If a waking-day or residential placement is sought the Tribunal may doubt whether the needs and provisions are accurate as this is the basis (and only basis) on which the Section I placement will be decided. No extra evidence beyond Section B and F can inform the Section I decision. Moreover, Section F should be interpreted in its entirety – the “who by” label is just as important as the substantive provision, particularly in cases where out of hours provision is sought and provision may reasonably be carried out by parents in the home environment.
Secondly, this case emphasises how it can be unsuitable to try and summarise Section F provision under the broad label of a waking day curriculum. Like many short-hand expressions, it is useful to summarise a type of provision that goes beyond the school day, but it lacks the flexibility to reflect specific needs in a plan. Waking day curriculum does not have a generally accepted definition and can mean different things to different parties. Instead, the emphasis should be on careful analysis of what amounts to educational provision, bearing in mind there is no prescriptive ‘formula’ to determine this. This was confirmed in R (on the application of A) v Hertfordshire County Council  EWHC 3428 (Admin) where it was held that “whether a particular case calls for [waking-day curriculum] is a matter for judgment on the facts of that case, and not a matter for a prescriptive rule. It is pre-eminently a matter of fact and degree, and whether it applied in D's case was a matter for expert judgment” [para. 26]. The court correctly rejected the argument that any provision where A ‘learns’ is to be regarded as education. This goes too far.
Finally, when remitting the case for a rehearing, Judge Jacobs made clear that his decision that a waking day curriculum was not required did not prevent the parties expanding the scope of the appeal to include Section F. This reiterates the point that the placement decision is driven solely by educational provision and not evidence outside of the plan which lacks the same statutory force as Section F.
Overall, this decision underlines that a strong case can be made for abandoning the term ‘waking day curriculum’ altogether. The term distracts from the process of matching provision to needs and pre-empts the need for out-of-school hours provision by virtue of using this short-hand phrase. The fact that it can easily lead the Tribunals into an error of law only supports this conclusion.
William Haslam is a Paralegal at LASEN Ltd. LASEN host regular online training for local authority SEND and EHCP officers. For more information, local authority employees will need to become members of LASEN at https://www.lasen.co.uk. LASEN membership is free of charge but only open to local authority employees.”
This article is written for general information purposes. It does not constitute legal advice and should not be relied on as such.