GLD Vacancies

Education, Health and Care plans

School desks 146x219The Upper Tribunal has issued an important ruling on the education of young people with special educational needs. Tom Tabori highlights the key findings.

On 11th February 2017 and 23rd February 2017, the Upper Tribunal (Administrative Appeals Chamber) (“UT(AAC)”) handed down judgment in key appeals concerning the education of young people (aged under 25 but over compulsory school age) with special educational needs [S v Worcestershire County Council [2017] UKUT 0092 (AAC) and Gloucestershire County Council v EH (SEN) [2017] 0085].

In doing so, the UT(AAC) determined a number of questions about the operation of the Education, Health and Care (“EHC”) plan provisions of the Children & Families Act 2014 (“CFA 2014”).

In Gloucestershire v EH, the UT(AAC) confirmed that:

  1. Local authorities have a duty to educate young people over compulsory school age, as and when an EHC plan is issued specifying the SEN provided by a young person;
  2. In an appeal against a refusal to prepare and maintain an EHC plan, failure by the local authority to set out how the child or young person’s needs would be met was a relevant consideration for the FTT;
  3. In an appeal against a decision that an EHC plan was not necessary, the success of the appeal did not turn on the appellant supplying a fully worked up educational proposal, and the local authority could not rely on the appellant’s asserted failure to do so (particularly when it had not done so itself);
  4. The FTT was required to consider an appellant’s current circumstances (the High Court’s decision in Wilkin v Goldthorpe (Chair of the SEN Tribunal) CO/1251/97 was as applicable under to CFA 2014 regime as to its predecessor);
  5. The fact that an appellant attains adulthood before their appeal is heard by the FTT does not affect their appeal rights; and       
  6. Obiter: whilst higher education falls outside the definition of “education” as it applies for the purposes of the CFA 2014, an Open University course may not amount to a course of a higher education as defined by sch 6 of the Education Reform Act 1988.

In S v Worcestershire, the UT(AAC) held that:

  1. The participative and enabling obligations on local authorities under section 19 of the CFA 2014 apply to the FTT when it is hearing an appeal under CFA 2014;
  2. The FTT will be acting within the spirit of section 19 if it acts in accordance with the overriding objective;
  3. The special educational provision specified in an EHC plan must be sensibly linked to the outcomes specified in the EHC plan;
  4. Regulation 43(2)f) allows the FTT to modify the outcomes section of an EHC plan to fit with any amendments it has ordered to an EHC plan;
  5. If the FTT finds that the local authority’s proposed placement can make provision that corresponds to that specified in the child’s EHC plan, it may need to amend the plan to give certainty as to the provision the child will receive.

In respect to disposal, where the documentary evidence “was of one piece” in describing the extent of SEN, the FTT was entitled to decide that an EHC plan was necessary and not remit the issue to the local authority to reconsider [Gloucestershire v EH], but where final resolution of the appellant’s appeal needs to be informed by the FTT’s specialist expertise, the appeal should be remitted [S v Worcestershire].

These judgments provide helpful confirmation of applicable principles and clarify the status of new legislative provisions. Local authority education law practitioners will need to be alive to both.

Tom Tabori is a barrister at 39 Essex Chambers. He can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it.. Tom acted for the successful young person in each appeal.
42BR Midpage CP