Local Government Lawyer, 17th August 2022
‘The Upper Tribunal has ruled that a council must secure special educational provision for a child who has electromagnetic hypersensitivity and is particularly sensitive to Wi-Fi signals.
In EAM v East Sussex County Council (Special educational needs)  UKUT 193 (AAC), on appeal from the First-tier Tribunal, Upper Tribunal judge Jacobs found that the child should be considered disabled by her condition under the Equality Act 2010 and that she required an Education, Health and Care Plan (EHCP).
The child’s parents – who argue that their daughter needs to be schooled in a ‘low electromagnetic environment’ – have been attempting to secure an EHCP that acknowledges her condition since 2017.
People who suffer from electromagnetic hypersensitivity complain of a range of reactions to electromagnetic fields from man-made devices. The collection of symptoms is not part of any recognized syndrome, according to the World Health Organization.’
Two educational psychologists found the child and her parents credible in describing her symptoms, and previous tribunals accepted the family’s evidence and described her symptoms as “debilitating when they occur”. But since 2017, a number of hearings have taken place which all found that an EHC Plan was not necessary.
The most recent decision was made by the Upper Tribunal (UT) in July 2022 and concerned a rehearing conducted by the First Tier Tribunal (FTT) in November 2021.
The Upper Tribunal set the FTT’s decision aside as it involved the making of an error in point of law and decided that the local authority must secure that an EHC plan is prepared and maintained for the child.
Judge Jacobs found that the child was disabled and that her condition prevented or hindered her from making use of computers operating by Wi-Fi, and the programmes running on those computers, which are generally provided for others her age.
The judge used the Special Educational Needs and Disability Code of Practice: 0 to 25 Years to outline what may and may not be considered educational provision. Under the code, he found that the child’s problems lie with communication (paragraph 6.28), which now takes place through the programmes rather than with the teacher, and sensory needs (paragraph 6.34) that prevent or hinder her using the computers.
“The use of the computers and their programmes is now an integral feature of how education takes place in schools. Their use is no longer marginal or peripheral,” the judge said.
He later added: “The child’s problem with electromagnetic radiation affects her life generally and limits her normal day-to-day activities – the Equality Act test. It applies at school, at home, and when she is out in the world. When at school, her problems with communication and making use of the computers are a direct result of the use of wifi in schools. The only solution available has to be provided in the school. It is not transferable to any other location, although it may need to be replicated elsewhere. I cannot see what other provision would be effective to avoid the problem or overcome its consequences.
“This is not simply a case of a child being unwell and finding it difficult to concentrate. There was evidence from two educational psychologists both of whom found her and her parents credible in describing her symptoms. The tribunal (paragraph 47) accepted their evidence too and described her symptoms as ‘debilitating when they occur’, which they did to such an extent that she ‘was out of education for a whole academic year.’ Those symptoms were not unique to a school environment. But when they occurred in that environment they arose from the school’s choice of the medium for providing education. In those circumstances, some provision is required to render the education effective.”
The judge concluded that: “For those reasons in combination, I find that the child requires special educational provision. No one factor has been decisive in my analysis and I have not attached any particular significance to the factors individually. Rather, I have considered the effect of the factors taken as a whole, each in the context of all the others.”
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