| SPOTLIGHT |
Holly Littlewood analyses a recent case concerning specificity in the context of “education otherwise than at school” (EOTAS), and an unlawful delegation of responsibility for determining special educational provision in an Education, Health and Care Plan (EHCP).
The recent Upper Tribunal decision of DM v Cornwall County Council [2022] UKUT 230 (AAC) considered the requirement for specificity in the context of an Education Health and Care Plan (“EHCP”) which made provision for a package of education otherwise than at school (“EOTAS”). Notably, Upper Tribunal Judge Wright held that, whilst each case will turn on its own facts, there may be a need for a greater degree of specificity in EOTAS cases.
Further, Upper Tribunal Judge Wright determined that the tribunal had erred in law by ordering a named professional, who was not a lawful delegate or proxy of the local authority, to prepare an “All You Need to Know About [the child]” document which would form part of the special educational provision in Section F of the child’s EHCP.
The appeal concerned a child, nearly 11 at the date of the tribunal’s decision, with diagnoses which included foetal alcohol spectrum disorder, autistic spectrum disorder and organic brain damage secondary to prenatal exposure to drugs and alcohol. The child was subject to a special guardianship order to his grandmother, who had brought the appeal on his behalf. It was not in dispute that it was necessary for the child to be educated otherwise than at school.
In her grounds of appeal, the appellant contended (amongst other things) that:
Half-Termly and Termly Reviews
Upper Tribunal Judge Wright rejected the appellant’s argument that the provision for reviews was unspecific, in terms of how such reviews would be conducted and who would participate in them. In the context of the evolving nature of the child’s special educational needs and provision, it was sufficient to specify that the reviews should be half-termly, and that they should be attended by the key adults (including the appellant herself).
Upper Tribunal Judge Wright also rejected the argument that the reviews were unlawful in that they would allow for a change in special educational provision, with no statutory mechanism for that change to be challenged. The judge referred to the recent decision of Worcestershire County Council v SE [2020] UKUT 217, in which it was held that termly reviews were not unlawful per se. He also emphasised that the purpose of the reviews was to adjust the provision, rather than to remove it or fundamentally change it in any way.
“All You Need to Know About [the child]” Document
The appellant successfully argued that the tribunal had erred in law by naming a specific individual, who was not a lawful delegate or proxy of the local authority, as having responsibility for the preparation of an “All You Need to Know About [the child]” document which would form part of the special educational provision within the child’s EHCP.
The tribunal had ordered Dr Bailey to prepare this document, in order to provide guidance about the nature and extent of the child’s special educational needs, and about the implications of the child’s neurological presentation on how best to interact with him. Unfortunately, Dr Bailey had been unable to do so, and had subsequently retired.
Upper Tribunal Judge Wright noted that “this was an area where the parties could not agree the educational provision in Section F of the EHCP. In those circumstances, on the appeal it was for the tribunal, standing in the shoes of the Council, to determine that aspect of educational provision for the child … However, on this aspect of the appeal the tribunal in effect passed this responsibility to someone else and importantly, where that someone else was not even an employee of the respondent.”
The judge distinguished this situation from the one in E v Newham London Borough Council [2003] EWCA Civ 09, in which the Court of Appeal held that it was lawful for the tribunal to order the child’s school, in conjunction with a number of therapists, to prepare an Individual Education Plan which would form part of a child’s statement of special educational needs. This case was materially different, in that it placed exclusive responsibility onto a named individual who was not subject to the control or oversight of the local authority. This created an impermissible level of uncertainty, and put the local authority at serious risk of being in breach of its duty under section 42(2) of the Children and Families Act 2014 to secure the specified special educational provision (a risk which had in fact materialised).
Further, in the Newham case, the tribunal had specified the types of therapists who would develop the Individual Education Plan following assessment, as well as the objective and format of the provision to be made. In contrast, it was unclear in this case which professionals would be involved in the production of the “All You Need to Know About [the child]” document, or whether the appellant herself would be involved. As such, the provision was also unlawful for lack of specificity.
The local authority failed in its argument that the error could be remedied simply by removing Dr Bailey’s name as the person responsible for preparing the “All You Need to Know About [the child]” document. Firstly, given the importance which the tribunal had attached to Dr Bailey’s role, it was unclear what role the “All You Need to Know About [the child]” document should play in Section F in circumstances where it was not to be prepared by her. Secondly, “on setting aside the tribunal’s decision the whole of the appeal would need to be redecided and that would need to be on the basis of the child’s needs and the special educational provision he requires now, in 2022, rather than redeciding what the tribunal ought to have decided in September 2021”.
Upper Tribunal Judge Wright determined that the local authority’s reliance on the case of London Borough of Redbridge v HO (SEN) [2020] UKUT 323 (AAC) in this regard was misplaced. Whilst in the Redbridge case, the Upper Tribunal had agreed to delete the tribunal’s amendment to Section F (which provided for “extracurricular support for one hour a week at home from a trusted and familiar psychologist”) and to confirm the remainder of the working document, this had been the only matter in dispute between the parties both before the First-tier Tribunal and the Upper Tribunal. In the current case, the dispute was more wide-ranging.
As such, the decision was set aside and remitted to be redecided in its entirety by a fresh tribunal.
Specificity of special educational provision
Upper Tribunal Judge Wright held that the tribunal had provided sufficient reasoning to explain why it was unnecessary to address the training, expertise or experience of the child’s tutors, or to address the numbers of hours and timetable of activities each week. The tribunal had ordered sufficiently specific provision in the context of the child’s evolving circumstances. Similarly, the judge held that the lack of a timescale for commencement of an Occupational Therapy programme was not unlawful, in the context of the child’s stage of development and need for flexibility.
However, the judge held that the speech and language therapy provision had not been sufficiently specified in the EHCP. Whilst the tribunal had ordered that a speech and language therapist would provide a concise document setting out guidance for what to do in instances when the child is not speaking during interactions, it had failed to specify a timescale by which this document would be provided.
Practical implications
This case provides useful guidance on the question of how specific special educational provision should be in the context of a package of education otherwise than at school. Whilst Upper Tribunal Judge Wright stated as a general proposition that provision may need to appear more explicitly in a case where the EHCP concerns a child being educated at home, he also recognised that, on the facts of this particular case, that there was a need for flexibility in the context of the evolving nature of the child’s needs.
This case is also a valuable reminder of the limits of the “pragmatic approach” to the specification of special educational provision set out in London Borough of Redbridge v HO (SEN) [2020] UKUT 323 (AAC).
Upper Tribunal Judge Lane held in the Redbridge case that “where the evidence does not enable the Tribunal to set out the detail itself but it would be inappropriate to adjourn, or where the provision will need to be reviewed periodically to see that it remains relevant to the pupil's needs, the Tribunal may be pragmatic in its approach and set out a method by which the details of a particular type of provision is to be made”. In doing so, the judge relied upon the Newham case, and emphasised (by way of a footnote to the judgment) that in the Newham case, although the tribunal had left the detailed drafting of the provision to the relevant professionals, it had specified the personnel, objective and format of the provision to be made.
Upper Tribunal Judge Wright drew an instructive dividing line between the approach in Newham, and approved in Redbridge, and the uncertain and unspecific provision ordered by the tribunal in this case.
Holly Littlewood is a barrister at Spire Barristers, specialising in Court of Protection and education law. She can be contacted on 0113 200 2400 or by email at This email address is being protected from spambots. You need JavaScript enabled to view it..
This article is written for general information purposes. It does not constitute legal advice, and should not be relied on as such.
