A Welsh council has successfully appealed a ruling that required it to pay a special educational needs allowance to home tutors it employed. Peter Oldham QC explains why.
In Swansea CC v Rees and others EAT 2053/2017, the employees were home tutors employed by the council, working as part of a home tutoring unit. The majority of the children the claimants worked with had SENs. They brought a breach of contract claim in the ET asserting that they were entitled to a special educational needs (SEN) allowance under para 25.2 of the School Teachers’ Pay and Conditions Document, which as relevant says:-
“25.2. The relevant body must award a SEN allowance to a classroom teacher –
(d) in any non-designated setting (including any PRU) that is analogous to a designated special class or unit, where the post –
(i) involves a substantial element of working directly with children with special educational needs;
(ii) requires the exercise of a teacher’s professional skills and judgement in the teaching of children with special educational needs; and
(iii) has a greater level of involvement in the teaching of children with special educational needs than is the normal requirement of teachers throughout the school or unit within the school or, in the case of an unattached teacher, the unit or service.”
The ET found for the employees, holding that the comparison in para 25.2(d)(iii) should be with the normal requirements of employees across the entire council education function, rather than with other tutors in the home tutoring unit, and that since the claimants worked more than was normal across the council’s education service, they were entitled to the allowance.
The council appealed. It said that the ET had failed to recognise that the words at the start of para 25.2(d), dealing with the setting in which teachers worked, were additional to the requirements of paragraphs (d)(i), (ii) and (iii), which dealt with the requirements of the post. The EAT agreed that the ET had wrongly taken these words not to apply a separate condition. Had it applied these words, it would have found that home tutoring was not analogous to being in a designated special class or unit, so that the claims should have failed for that reason alone.
Further the council said that the comparison for the purposes of para (d)(iii) should have been with other teachers in the home tutoring unit, and not with employees across the council’s education service generally, and that since there was no evidence that the claimants did more work with children with SENs than other teachers in the unit, their claims had to fail for that reason too. Once again the EAT agreed.
Accordingly the EAT allowed the appeal and dismissed the claims.