https://assets.publishing.service.gov.uk/media/6941882c2d5e7e8632537570/ua-2025-000169-hs.pdf
Children’s therapies like occupational therapy (OT), physiotherapy and speech and language therapy (SALT) can legally count as education in some situations and as health in others, and sometimes they are both at once. This matters because education duties are generally stronger and easier to enforce than health duties.
Why the label matters
- If something is written in Section F of an EHCP as special educational provision, the local authority must secure it; parents can appeal to the SEND Tribunal if it is missing or inadequate.
- If something is in Section G as health care provision, the duty usually falls on the NHS, and there is no direct right of appeal to the SEND Tribunal about that health provision.
What the Hertfordshire case said
- In R & RK v Hertfordshire UKUT 381, the Upper Tribunal looked at OT for a six‑year‑old girl with severe cerebral palsy, visual impairment and learning difficulties.
- The First‑tier Tribunal had treated most of her OT as health care, not education, and the parents argued this was wrong in law and not properly explained.
What the judge decided
- Judge Jacobs held that the First‑tier Tribunal’s conclusion that the disputed occupational therapy was health care provision, not special educational provision, was supported by rational reasons.
- He found that, even if the Tribunal had approached the statutory tests in the wrong order, that error did not affect the outcome because the same reasoning showed the OT neither “educated or trained” nor met the test for direct special educational provision.
- So the Tribunal’s decision was upheld.
Final outcome in legal terms
- The appeal was dismissed, so the occupational therapy at issue was not required to be moved into Section F of the EHCP as special educational provision, in this particular case.
Sometimes treatment, sometimes education
- The judge confirmed that therapies like OT or SALT are not automatically “health” or “education”; the same type of therapy might count as treatment for one child and as education for another.
- Using an older speech therapy case, he explained that speech therapy might be mainly medical treatment in one situation, but in another situation it may be fundamentally educational (for example, teaching a child to communicate for the first time).
Overlap and “double life” of therapies
- The judgment accepts that a single piece of provision can have a “double life”, both treating a medical condition and educating or training the child at the same time.
- Where health care provision “educates or trains”, the law (section 21(5) Children and Families Act 2014) says it must be treated as special educational provision and moved into Section F, with the local authority then responsible for securing it.
“Educational provision” is wider than teaching
- The judge drew a distinction between: (1) direct special educational provision (the core teaching and related help) and (2) health or social care provision that educates or trains and so must be treated as education.
- He gave an example of equipment that helps a child hear in class: the equipment does not itself “educate or train”, but it is still educational provision because it enables the child to access lessons; similarly, a wheelchair does not teach French, yet may still be part of educational provision because it lets the child use school facilities.
Direct vs “deemed” educational provision
- Direct special educational provision (under section 21(1)–(2)) is the core educational help the child needs; the Tribunal can decide needs and rewrite this part of the EHCP.
- Deemed special educational provision (under section 21(5)) is health or social care that also educates or trains; here the Tribunal’s role is more limited to re‑labelling and moving the relevant parts into Section F, not redesigning the underlying health or social care support.
Practical lessons for families
- Families can legitimately argue that OT, Physio and SALT are special educational provision where they are closely tied to learning outcomes: for example, helping a child to communicate in class, to use their hands to write, or to manage posture and positioning needed to take part in lessons.
- Equally, professionals or tribunals may decide that some elements of the same therapy are mainly health care (for example, managing pain, preventing contractures, or monitoring medical status) and can properly sit in Section G.
How tribunals should approach it
- The judge stressed there is no free choice in labelling provision; the classification must follow the statutory definitions, but it does involve judgment, and reasonable people can disagree.
- He indicated that, logically, tribunals should first identify any health provision that educates or trains and move that into Section F, and then consider what further direct educational provision is needed, though doing this in a different order is not a legal error if the law is applied correctly.
Using this in your own case
- Parents can point out that therapies can serve more than one purpose and ask decision‑makers to look carefully at what the therapy is actually doing for the child in school or early years settings.
- Where a therapy session is used to teach communication, independence, classroom skills, or access to the curriculum, there is a solid legal basis for arguing that at least those elements should appear in Section F as special educational provision, even if other elements remain recorded as health care.
Implications for adult services disputes with the NHS in the context of shared care or CHC conflict
- The Hertfordshire decision itself is about children and EHCPs, so it does not directly decide adult social care/CHC boundary issues, but its reasoning about “classification” of provision reinforces the same kind of line‑drawing you see in Coughlan and the Care Act regarding what is properly NHS versus what can sit with social care as merely ancillary or incidental.
Parallel with CHC vs social care tests
- In adult cases, the key question under Coughlan and the Care Act is whether nursing/health services are of a nature that social services can be expected to provide and are merely ancillary or incidental to accommodation; if not, the primary responsibility lies with the NHS.
- Hertfordshire and East Sussex v TW show the same style of analysis in the SEN context: the tribunal must classify OT/Physio/SALT by function and intensity, not by label, asking whether the provision really “educates or trains” (education responsibility) or is essentially treatment or health care.
Support for arguing therapies can switch “sides”
- The Upper Tribunal in Hertfordshire confirms that the same type of provision (e.g. OT) can in principle serve two roles at once: it may both treat and educate; in the children’s sphere, the “educational” element is then pulled into the education column under section 21(5).
- That functional, effects‑based classification is closely analogous to CHC case law which asks, for adults, whether health tasks in a care package are more than merely ancillary or incidental to social care; the more they drive the package in terms of intensity, complexity or risk, the more they are properly NHS.
Implications for adult OT/Physio/SALT disputes
- Where adult OT/Physio/SALT is integral to maintaining health status, managing significant clinical risk, or delivering skilled interventions (rather than simply enabling the use of social care services), Hertfordshire’s emphasis on careful classification supports the argument that these are core health needs and cannot be treated as incidental to adult social care.
- Conversely, where the same therapies are low‑level, routine, and primarily enabling access to social care activities or accommodation without substantial clinical skill or risk management, the established CHC/Care Act authorities still allow those elements to be characterised as ancillary or incidental to social care and so capable of sitting with the local authority