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What is “special educational provision” in law? How a case of electromagnetic hypersensitivity may help future appeals

Article by Ed Duff, HCB Solicitors

A very interesting SEND appeal in the Upper Tribunal caught our eye recently.

A family was appealing in a dispute over what could be included in law as “special educational provision”. They were seeking support for their daughter, who is hypersensitive to electromagnetic signals—which includes Wi-Fi. Considering wifi is everywhere, this causes the child considerable ill-health and their parents were trying to ensure the same opportunity to learn as any other child.

We’re not legal or medical experts, so we asked Ed Duff, a very experienced SEND specialist solicitor, who is knowledgeable about this case, to write an explanation of what happened. As interesting as the causes of Electromagnetic Hypersensitivity may be, the case is about whether a solution to the child’s difficulties can be counted as special educational provision. The decision has implications for many other unrelated cases in the future.

Many thanks to Ed and to the family concerned for their input.

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The legal implications of a recent Upper Tribunal judgement on what is “special educational provision”. By Ed Duff, HCB Solicitors

The Upper Tribunal has recently issued a judgment in the matter of EAM V EAST SUSSEX COUNTY COUNCIL [2022] UKUT 193 (AAC) (pdf), provides further helpful guidance on the legal meaning of “special educational provision”.

The appeal involved a young person with, Electromagnetic Hypersensitivity (EHS).

Electromagnetic Hypersensitivity is a condition characterised by physical symptoms such as headaches, sleep disturbance, dizziness, palpitations, skin rashes and multiple sensory up-regulation associated with exposure to non-ionising radiation (NIR). This form of radiation is mainly found in systems that communicate wirelessly, for example, those which use Wi-Fi connections, mobile phone communications and Bluetooth.

Practically, it means that this young person faced pronounced physical symptoms when exposed to this form of radiation. In order to mitigate the impact on her, the family had entirely removed all emitters of this radiation, including Wi-Fi and mobile phones, in the home.

What is Electromagnetic hypersensitivity?

EHS is characterised by a variety of non-specific symptoms, which afflicted individuals attribute to exposure to EMF. The symptoms most commonly experienced include dermatological symptoms (redness, tingling, and burning sensations) as well as neurasthenic and vegetative symptoms (fatigue, tiredness, concentration difficulties, dizziness, nausea, heart palpitation, and digestive disturbances). The collection of symptoms is not part of any recognized syndrome….

…EHS is characterized by a variety of non-specific symptoms that differ from individual to individual. The symptoms are certainly real and can vary widely in their severity. Whatever its cause, EHS can be a disabling problem for the affected individual. EHS has no clear diagnostic criteria and there is no scientific basis to link EHS symptoms to EMF exposure. Further, EHS is not a medical diagnosis, nor is it clear that it represents a single medical problem.

World Health Organisation

The impact on the child

The primary school that this child attended was initially Wi-Fi free as they relied on a hardwired network for internet access. They were made aware of the child’s reaction to NIR prior to her enrolling at the school and were, at that point, supportive of her need for a low EMF environment. Years later, new management staff at the school introduced Wi-Fi and the child’s Electromagnetic Hypersensitivity, meant she could no longer attend. After undertaking a considerable amount of research, the family established that the use of Wi-Fi systems in schools was, effectively, everywhere. Given the impact that these networks, and other sources of NIR, had on the young person, the family sought advice regarding how to support her in school.

The family took a two-pronged approach. Firstly, they sought to challenge the young person’s school for refusing to remove the systems that produced NIR, asserting it to be disability discrimination. Secondly, the family requested that the local authority (LA) make an Education Health and Care (EHC) Needs Assessment of their daughter. This second route was aimed at securing an Education Health and Care Plan (EHCP) that would require the removal of WiFi in the school as a special educational provision.

Unsuccessful Tribunal, but a foothold gained

While the SEND Tribunal claim for disability discrimination was unsuccessful, it did accept that the young person was “disabled” within the meaning of the Equality Act by electromagnetic hypersensitivity. This finding was used to support the family’s request to the LA for an EHC needs assessment, which was granted.

What followed was a string of litigation between First Tier Tribunal and Upper Tribunal. Multiple appeals were needed to consider whether an Education Health and Care Plan should be issued.

“As far as I can tell, the parents requested an Education, Health and Care Plan for their daughter in August 2017. In July 2018, the First-tier Tribunal allowed an appeal against the local authority’s refusal to secure an EHC needs assessment for the child. It directed the authority to secure an assessment. In February 2019, the authority completed the assessment, but decided that a plan was not necessary on the ground that: ‘it is felt the identified needs can be met by provision which is routinely available at the educational setting through existing support mechanisms and without the need for an EHC plan.’ That decision came before the First-tier Tribunal in November 2019. It was the decision of this tribunal that I set aside under reference HS/0395/2020. I directed a rehearing, which was held in November 2021, this time with a new local authority as respondent. I am now deciding the appeal against the decision of that tribunal.”

Edward Jacobs, Upper Tribunal Judge, EAM V EAST SUSSEX COUNTY COUNCIL [2022] UKUT 193 (AAC)

Summary of the law

As a very broad overview, in order to secure an Education Health and Care Plan, a young person must;

  1. Have special educational needs; and
  2. Those needs must call for special education provision which is not available from the resources typically available to a mainstream school

There is, obviously, substantial case law around what those various terms mean. 

As earlier Tribunals had found that the young person, in this case, was disabled, and that that disability was hindering her ability to access education, it was safely taken by the parents that the young person had “special educational needs”. The only remaining question was whether the provision sought – mainly a Wi-Fi free environment – amounted to “special educational provision”.

The route to Upper Tribunal

The First Tier Tribunal (SENDIST) had refused the parents’ appeal against the LA’s decision not to make an Education Health and Care Plan (EHCP) to support provision for her Electromagnetic Hypersensitivity. This is when the Upper Tribunal became involved in this matter.

East Sussex had refused an EHCP saying the required provision could be met within resources available in any mainstream school. The parents considered that was demonstrably wrong, because of the proliferation of NIR-producing systems. They had not been able to find a school that didn’t use systems that produced NIR or were willing to voluntarily make accommodations for their daughter, so the LA’s position seemed flawed.

When the SENDIST considered the appeal, it refused to overturn East Sussex’s decision, saying it didn’t consider a Wi-Fi-free environment in school to be “special educational provision”. As such, it would not be possible to secure an EHCP for the provision. Oddly, SENDIST also concluded that if it was wrong about that, and a Wi-Fi free environment was special educational provision, then an EHCP would be necessary.

The Upper Tribunal’s decision

The Upper Tribunal had to consider what “special educational provision” actually is. This is primarily dealt with at section 21 Children and Families Act 2014. Within section 21, there are two main definitions for “special educational provision”.

  • Section 21 (1) defines special educational provision as educational or training provision that is additional to, or different from, that generally made available for pupils of the same age in school /college.
  • Section 21(5) indicates that provision which would be either health or social care provision, but that which has the effect of educating or training a young person, should be considered as special educational provision.

The decision in EAM V EAST SUSSEX COUNTY COUNCIL [2022] UKUT 193 (AAC) provides a very technical analysis of what the words within the law actually mean.

In particular, the Upper Tribunal considered what section 21(1) meant by “special educational provision … means educational … provision that is additional to or different from …”

The analysis particularly comes in at paragraph 9 of the Upper Tribunal’s decision;

“9. A provision may be educational without itself educating a child. The word means ‘of, pertaining to, or concerned with education’ to quote the Oxford Shorter English Dictionary (fifth edition). The difference is easy to demonstrate. Suppose a teacher is giving a lesson to a class. One pupil in the class has impaired hearing and wears a hearing aid. The school has installed a loop system and the teacher uses a microphone. With the hearing aid on the T setting, the pupil can hear the lesson. The microphone and the loop system are both educational provision. But they do not themselves educate the pupil. The hearing aid may be both an educational provision and a health care provision, but again it does not educate the pupil. The teacher and the contents of the lesson educate the pupil.”

EAM V EAST SUSSEX COUNTY COUNCIL [2022] UKUT 193 (AAC)

In effect, the Upper Tribunal concluded that section 21(1) says that if a provision relates, or pertains, to the education of a pupil, then it could amount to “special educational provision”, provided it is not a provision typically available for all pupils. It is not necessary to show that the particular provision, itself, directly educates a pupil, but it must relate to the education of that pupil. The example of a hearing loop is useful, because it helps to demonstrate a provision which, itself, does not actually educate a pupil, but it is a tool relating to the education of a pupil. Therefore, it is an educational provision. Whether it would be a “special educational provision” would require analysis of whether a hearing loop is available for all pupils of that age generally in the relevant type of school or college. 

As such, the Upper Tribunal concluded that a learning environment that was free of Wi-Fi could be an “educational” provision, because it related to education.

That logic entirely follows many other existing decisions, including those from SENDIST, where the learning environment required by a child – such as small classes, reduced distractions, visual timetables – are deemed to be special educational provision.

The Upper Tribunal also noted that SENDIST had confused the function of sections 21(1) and 21(5). The language of those two sections had been used interchangeably within the decision that the Upper Tribunal was considering, and that was used to highlight how the Tribunal had made an error in law.

In effect, the Upper Tribunal concluded that section 21(1) says that if a provision relates, or pertains, to the education of a pupil, then it could amount to “special educational provision”, provided it is not a provision typically available for all pupils.

Ed Duff

What this means

Practically, this is a significant decision. It provides a clear authority suggesting that what can be “educational provision” is very broad. What makes that provision “special” remains about the availability of the provision.

It is likely this decision will be helpful for numerous appeals that concern learning environments, as well as more generally providing useful guidance about what “educational provision” means. It is also likely to provide very helpful support for this particular family, not only to secure the necessary provision for their daughter, but to increase both awareness and acceptance of her condition.

A press release which is particularly informative on the condition and the experience the family have been through. It can be found here (pdf).

Ed Duff HCB Solicitors

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About Ed

Ed Duff

Since 2007, Ed has practiced education law coupled with child law, family law and public law. In the process he has become one of the UK’s leading commentators on special educational needs issues and is recognised as an expert in the field of special educational needs law.

Ed’s work has led to leading case law, including an appeal to the Supreme Court about the human right to education. He has also brought leading precedent cases to the Court of Appeal concerning the definition of "school" and whether children in residential schools are “looked after” by a local authority. 

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