“A local authority may not meet a person’s needs for care and support (including a carer’s needs for support) under sections 35 to 45 by providing or arranging for the provision of a service or facility which is required to be provided under a health enactment, unless doing so would be incidental or ancillary to doing something else to meet needs under those sections”; and section 47(4) expressly prohibits a local authority meeting a person’s needs for care and support under sections 35 to 45 by “providing or arranging for the provision of nursing care by a registered nurse”
“(1) A person has [ALN] if he or she has a learning difficulty or disability (whether the learning difficulty or disability arises from a medical condition or otherwise) which calls for [ALP]. (2) A child of compulsory school age has a learning difficulty or disability if he or she– (a) has a significantly greater difficulty in learning than the majority of others of the same age, or (b) has a disability for the purposes of theEquality Act 2010 which prevents or hinders him or her from making use of facilities for education or training of a kind generally provided for others of the same age in mainstream maintained schools…”
“Additional learning provision” for a person aged three or over means educational or training provision that is additional to, or different from, that made generally for others of the same age in— (a) mainstream maintained schools in Wales…”
“Section 2A: Description of the child or young person’s [ALN]” “Section 2B: Description and delivery of the child or young person’s [ALP]” “Section 2C: Description and delivery of ALP to be secured by an NHS body.”
“This care plan is to provide guidance to Hari’s carers what activities are needed on a daily basis to meet Hari’s assessed needs at home, in the community and when attending school. Hari should always be directly supervised on a 1:1 basis by someone who is a fully trained and competent carer to look after his ventilator and tracheostomy and who can start [CPR] if necessary. This person could be his mother or a health practitioner. During any breaks, the competent carer will remain sufficiently proximate to Hari to be able to respond in the event of an emergency. Health staff fulfilling this role are paid for breaks and do not leave the premises during their shift. If there is a trained competent carer supervising Hari without his parents present, there should be at least one other responsible adult available on the premises as well. This additional person, or second carer should be tracheostomy aware [“trache-aware”], but does not have to be trained in providing any direct health care to Hari, such as looking after the ventilator or tracheostomy, or providing emergency care. In the event of an emergency and the competent carer is not immediately present (e.g. if going to the toilet or on a lunch break etc), the second carer should call for help. The second carer should also provide practical help, under the direction of the competent carer, in the form of acting as a runner or assisting passing equipment.”
“Due to Hari’s dependency on invasive ventilation, Hari requires 24 hour supervision day and night by someone who is trained in both tracheostomy and ventilator care and management. There is also a need… for a second responsible adult to be available at all times (this person does not need to be fully ventilator trained).”
“• Hari has poor respiratory function and is dependent on permanent mechanical ventilation via a tracheostomy tube. • Hari is able to self-ventilate for short periods of time using his tracheostomy solely. Hari is able to breathe spontaneously when awake and has the ventilator set at a minimum of 20 breaths per minute if he requires this. During times that Hari is asleep or unwell, Hari is fully reliant on the ventilator throughout this time. • Hari would become significantly unwell and require hospital admission if ventilation was to discontinue for any length of time.”
“If there is a trained competent carer supervising Hari without a parent present there needs to be a responsible adult available – this additional person does not need to be ventilator or tracheostomy competent as highlighted in Hari’s community management plan developed by Alder Hey. A parent may supervise Hari alone but they would have to accept it would be more difficult to deal with any problems that may arise and if they are on their own, they take full responsibility for all his medical needs. In reality overnight a parent is the second responsible person.”
“I will attend educational setting”, and the ALP to be provided in response was indicated as (i) “Physical and Medical Advisory Teacher to support Hari’s educational setting, in co-ordination with other supporting agencies”, (ii) “ELSA strategies to be incorporated into daily routine” and (iii) “Opportunities to interact with peers in activities to form friendships”
“61. In the event of an emergency occurring at school then the competent carer should be able to address matters with the assistance of the second carer. However, what is of concern for us is what happens in the event of an emergency occurring if the competent carer, for whatever reason, is not ‘sufficiently proximate’ to deal with that emergency. An untrained second carer will not be able to directly assist Hari and will have to call for help. This may be to telephone for an ambulance. However, given the very narrow wi[n]dow that exists for Hari to manage without his ventilator then an ambulance may not arrive in time. 62. The assessment of the Health Board is that Hari must be constantly supervised by a trained carer. If, however, the competent carer is not present then Hari is not under the supervision of a competent carer. It seems to us that the assessments are predicated on the basis that a competent carer will always be present. In that case there is no reason why a [trache-]aware second carer would not be sufficient. If however, the competent carer were to become unwell or pass out and an emergency occurred, then Hari would not be properly supervised, and the second carer would be alone and unable to assist. 63. Judging from the evidence it seems highly likely that Hari would become agitated in the event of an emergency, making it even more important, in the absence of his mother, for issues to be addressed immediately. 64. In all the circumstances, we cannot at present be satisfied that the proposed arrangements, for Hari to attend school with one competent carer and an untrained second carer, are such that Hari will be safe and secure in school. In our judgement for Hari to be able to safely attend school he requires two component [sic] carers. Hari is very aware of his situation and in order for him to thrive at school then he must be confident and reassured that, in the absence of his mother, his carers will be able to provide for him.”
“A child has ‘special educational needs’ for the purposes of this Act if he has learning difficulty which calls for special educational provision to be made for him”
“…. [A] child has a ‘learning difficulty’ for the purposes of this Act if– … (b) he has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area of the local education authority…”
“A person has additional learning needs if he or she has a learning difficulty or disability (whether the learning difficulty or disability arises from a medical condition or otherwise) which calls for additional learning provision”
“… A child of compulsory school age or a young person has a learning difficulty or disability if he or she… has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions…”
“In this Act, ‘special educational provision’ means – (a) in relation to a child who has attained the age of two, educational provision which is additional to, or otherwise different from, the educational provision made generally for children of his age in schools maintained by the local education authority (other than special schools)…”; whilst section 3(1) of the ALN Act (again, quoted above: paragraph 13) provides: “‘Additional learning provision’ for a person aged three or over means educational or training provision that is additional to, or different from, that made generally for others of the same age in – (a) mainstream maintained schools in Wales …”
“lt is said that A has a learning difficulty by virtue of having significant difficulty in learning, more so than the majority of children of her age, and that this gives rise to special educational needs which require specialist input. In addition to this she has [SEN] arising from her physical disabilities which either prevent or hinder her from taking advantage of the educational facilities which are to be provided for her… Mr Nadim [Counsel for the child] submits that on the proper approach to section 156 of the [1993] Act there should be an onus on the local education authority to make [SEP] in the form of equipment, support or supervision designed to overcome or diminish the effect of her disability so that the child may make use of the educational facilities provided by the [education authority].”
“It has long been a rule of construction that when Parliament uses a word or term, the meaning of which has been the subject of judicial ruling in the same or similar context, then it may be presumed that the word or term was intended to bear the same meaning…”