The Upper Tribunal's decision in Cyngor Gwynedd v Jones [2026] UKUT 205 (AAC) was published on 18 June 2026. It is one of only a handful of UTT decisions since the implementation of the Additional Learning Needs and Education Tribunal (Wales) Act 2018.
The case concerns a child with exceptionally complex needs, including invasive ventilation, but the judgment has implications extending well beyond children with profound medical conditions. At its heart lies a deceptively simple question: when does healthcare provided in school become "educational provision" for the purposes of an Individual Development Plan (IDP)?
The judgment of Sir Gary Hickinbottom provides a clear answer. Provision does not become Additional Learning Provision (ALP) merely because it is essential to enable a child to attend school. Rather, it must itself possess an educational character. That distinction will be important in future disputes concerning the boundary between education, healthcare and social care across Wales.
One of the features of the judgment is the Upper Tribunal's extensive reliance on English authorities decided under legislation that no longer applies in Wales.
The parents argued that the Welsh ALN scheme represents a distinct legislative code and that English authorities interpreting the Education Act 1996 and the Children and Families Act 2014 should be approached with caution. They contended that the 2018 Act places greater emphasis upon enabling access to education than upon the educational nature of the provision itself.
The Upper Tribunal rejected that submission. While acknowledging that the starting point in interpretation of the relevant provisions was the wording of the 2018 Act itself, it held that the concepts of "learning difficulty", "educational provision" and the overall legislative architecture of the 2018 Act are materially derived from Part IV of the Education Act 1996. The Upper Tribunal applied the principle in Lowsley v Forbes (trading as LE Design Services) [1999] 1 AC 329, which states that where Parliament (or in this case, the Senedd) adopts established statutory language, it is presumed to intend the same legal meaning unless it clearly indicates otherwise.
Since devolution, there has often been an expectation that Welsh legislation will increasingly develop its own jurisprudence, and within the Education Tribunal Wales (ETW) the separate status and intent of the 2018 Act has often been restated. In this decision, where the focus was on the meaning of specific terms, the body of case law supporting the interpretation of those terms as they arose within the common predecessor legislation remained significant.
In short, unless the wording of the Welsh statute demonstrates a different intention, earlier English authorities remain highly persuasive. For practitioners, that substantially enlarges the available body of authority. Cases that many assumed had become largely historical have regained practical importance in Wales where they assist the interpretation of our separate ALN legislation.
The Upper Tribunal described the decisions in City of Bradford Metropolitan Council v A [1997] ELR 417, R v Lancashire County Council ex parte M [1989] FLR 276 and Bromley London Borough Council v Special Educational Needs Tribunal [1999] All ER 587 as “so persuasive as to be all but binding” on the distinction between educational provision and healthcare.
The key proposition emerging from those decisions was that provision may be indispensable if a child is to benefit from education, without itself being educational.
The child in this case required continuous clinical supervision because of his ventilator and tracheostomy. The Upper Tribunal accepted entirely that such supervision was essential if he was to attend school safely. However, necessity alone was insufficient. The carers' function remained therapeutic rather than educational.
The judgment repeatedly emphasises that the statutory definition requires “educational provision,” not merely "provision". To ignore the adjective ‘educational’ would effectively rewrite section 3 of the 2018 Act.
The Upper Tribunal therefore rejected the proposition that anything necessary for school attendance automatically becomes ALP.
That conclusion has consequences extending well beyond nursing care. Similar arguments frequently arise concerning transport assistance, personal care, behaviour support, supervision, therapeutic interventions and specialist medical services. Practitioners can now expect much greater scrutiny of the actual function performed by the provision rather than simply asking whether the child could attend school without it.
Perhaps the most useful aspect of the judgment is that it provides the foundations for a practical analysis when the issue arises.
The question should not be: Could the child attend school without this provision?
Instead, practitioners should ask: What function is this provision performing?
Provision is more likely to constitute ALP where its primary purpose is to: teach knowledge or skills; facilitate learning; enable communication; develop educational independence; or improve access to the curriculum through educational techniques.
The Upper Tribunal identified speech and language therapy as a key example. As the Lancashire case recognised, speech therapy may properly constitute educational provision because it directly develops communication as part of learning.
Similarly, interventions delivered by specialist teachers, educational psychologists or therapists whose work is directed towards educational outcomes will generally remain capable of being ALP.
Conversely, provision is unlikely to constitute ALP where its function is to: maintain physical health; preserve life; manage medical risk; administer treatment; provide nursing care; supervise medical equipment; or meet social care needs.
None of those functions cease to be healthcare simply because they occur inside a school.
The carers in the present case were present because the child’s clinical condition required continuous medical supervision. They were not delivering learning.
The Upper Tribunal described both the competent carer and the second carer as performing exclusively therapeutic rather than educational functions.
The fact that a healthcare provision is not identified as ALP does not, in the view of the Upper Tribunal, create a lacuna in the legislation. The Upper Tribunal emphasised that the ALN Act does not exist in isolation. Health Boards retain their statutory duties under the National Health Service (Wales) Act 2006 and local authorities continue to exercise duties under the Social Services and Well-being (Wales) Act 2014. The ALN Act sits alongside those statutory schemes rather than replacing them.
Some disputes concerning IDPs are, in reality, funding disputes between public authorities. There can be understandable pressure to classify provision as ALP because section 14 imposes a clear duty upon local authorities to secure the provision identified in the IDP; but the Upper Tribunal firmly resisted that approach. The fact that healthcare is required in school does not result in a transfer of responsibility from the NHS to the education system.
Although the question of whether the healthcare provision constituted ALP resolved the appeal under Ground 1, the Upper Tribunal also addressed Ground 2, which concerned the treatment of expert evidence.
The ETW had concluded that the child required two fully competent carers while at school, notwithstanding consistent clinical evidence over several years from both the Health Board and Alder Hey Children's Hospital that one competent carer supported by a tracheostomy-aware second adult appropriately managed the risk.
The Upper Tribunal held that the ETW had failed properly to engage with that expert evidence. This aspect of the judgment serves as an important reminder that, although the ETW is not bound by expert opinion, it must explain clearly why it departs from consistent specialist clinical assessments.
The Upper Tribunal refused permission to appeal, but an application for permission to appeal has been renewed before the Court of Appeal and is yet to be determined.
As matters stand, the judgment stands as a reminder of the importance of the following principles:
IDP drafting should clearly distinguish educational provision from healthcare and social care. It will become increasingly important to explain why particular provision is included as ALP rather than simply listing all support received by the child.
Section 20 referrals to Health Boards assume greater significance. Authorities should ensure the statutory sequence is followed carefully: identify ALN, identify ALP, then determine who should secure it.
Whether provision falls within ALP is a question of statutory interpretation, not financial convenience.
The judgment is clear confirmation that clinically necessary healthcare does not lose its character merely because it is delivered within a school. Robust, evidence-based clinical assessments remain important during IDP preparation and in ETW proceedings.
The Upper Tribunal recognised that children with complex needs often require integrated packages delivered simultaneously by education, healthcare and social care. The challenge is ensuring each element is properly characterised and funded through the appropriate statutory regime rather than attempting to reclassify provision simply to resolve responsibility.
Whether the Court of Appeal agrees to reconsider the case remains to be seen. Until then, Cyngor Gwynedd v Jones establishes an important principle. The fact that provision enables education does not necessarily make it educational.
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