Swansea City Council win appeal over whether SEN allowance was payable to teachers.
Rees was employed between 22 April 2002 and 31 December 2015. Mrs Mann was employed between 1 September 1997 and 31 December 2015. Mrs Gustafson was employed between 15 April 2002 and 31 December 2015. The Claimants were home tutors and were employed by the Swansea City Council as home tutors.
Mrs Rees said that between 80 and 100% of her time was spent teaching children with special educational needs. This was mostly done in the children’s own homes but occasionally she taught children in small groups, for example, at an education centre and the Tribunal found that this might be twice or three times a week. Mrs Mann said that about 75 to 80% of the children she taught had special educational needs. Mrs Gustafson said at least 80% of the children she taught had special educational needs.
The ET drew a contrast between the work undertaken by the Claimants as part of the home tutoring team with teaching in mainstream schools, finding that in mainstream schools special educational needs children may be taught in classrooms with five to 10 children and two teaching assistants, whereas home tutors teach mainly one-to-one at primary and secondary level and about 90% of the work is with an aim to get the children back to mainstream schools.
It was common ground that the Claimants did not teach pupils in designated special classes or units in a school, local authority or service; rather they were home tutors. That meant in order to qualify for SEN allowance they had to bring themselves within paragraph 25.2(d) of the Teachers Pay Terms and Conditions Document
The Tribunal concluded that all three Claimants fell within the definition of paragraph 25.2(d) of the Document and were therefore entitled to SEN allowance for the relevant periods
Appeal
Appeal Tribunal said the tribunal had erred in so concluding in two respects.
First, by construing the conditions of entitlement in paragraph 25.2(d) of the School Teachers’ Pay and Conditions Document so as to give no effect to the requirement that the setting of a teacher’s work must be analogous to a designated special class or unit to qualify, the Employment Tribunal erred in law, the judge said.
Secondly, the Employment Tribunal erred in its approach to condition (iii) [of paragraph 25.2(d)] in concluding that the unit or service for the purposes of determining whether the claimants had a greater involvement in the teaching of children with SEN than is the normal requirement of teachers throughout… the unit or service was the whole education authority rather than the home tutoring service.
Mrs Justice Simler went on to say that on a proper construction of the Document, and in light of the evidence, the claimants were not entitled to be paid SEN allowance for the relevant periods because (a) home tutoring was not an analogous setting to a designated special class or unit; and (b) because they did not establish that they had a greater involvement in the teaching of children with SEN than is the normal requirement of teachers throughout the unit or service, when condition (iii) is properly understood and applied to the facts of their case.
The local authority’s appeal was therefore allowed and their claims for breach of contract fail and were dismissed.
Swansea City Council v Rees & Ors UKEAT/0253/17/JOJ
