Is a powered wheelchair a special educational provision?

The key issue in an appeal to Upper Tribunal  in the case of East Sussex County Council V JC [2018} UKUT 81 (AAC) was whether a powered wheelchair is a special educational provision. In this case a young person was reliant on a powered wheelchair and augmentative and alternative communication (AAC), otherwise known as IT support to control the chair or enable communication mounted on the chair, at his 52 week residential placement. The First-tier Tribunal  (FTT) sought to split the wheelchair provision, placing provision of the wheelchair into Section G Health Care Provisions and assigning maintenance and upkeep into Section F Special Educational Needs.

NHS cutbacks and the fact, of course, that Section F remains enforceable as a special educational provision played a factor.

Should a powered wheelchair be a special educational provision?

Key issues and errors were apparent in the FTT decision, not least the lack of adequate findings or explanations as to how the use of a powered wheelchair educates/trains an individual. There was no consideration of evidence and an explanation as to how such an arrangement would work in practice.

At first glance it would seem that the FTT was doing its utmost to secure continuity of provision.

Health, care and educational needs are often inextricably linked, a factor recognised by the advent of the 2 year trial on 3 April 2018 permitting the Tribunal to make “non- binding” recommendations on the health and social care aspects of the EHCP under The Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017.

The mischief however remains whilst the powers of the Tribunal are limited. Current legislation and case law forces the opposite view. If a child/young person has any hope of securing enforceable provisions, these needs must fall within the educational sphere under Section F.

Budget cuts extend to all sectors

The fact remains that there will be a cost from the public purse in meeting the needs of these children/young people. Can cutbacks and reduction in budgets be justified for this group? In the season of austerity can departments work together adopting cost effective methods to meet needs? After all, positive outcomes lead to less reliance on publicly funded support as these children/young people reach adulthood and achieve their potential.

Answers remain elusive. In the current case the Upper Tribunal agreed that the FTT decision was made in error of law. They set aside the decision remitting the case to be decided by a differently constituted FTT panel. What the Upper Tribunal did open up for discussion however, is that, in principle, a powered wheelchair could be considered special educational provision in certain circumstances.

You can read the full case here.

If you discuss this or any similar problems with your child’s educational provision then please contact us at senexpertsolicitors@boyesturner.com – our expert SEN solicitors are here to help.