| SPOTLIGHT |
Leon Glenister analyses a recent judicial review on “extended" appeals in special educational needs.
The High Court has handed down judgment in LS v London Borough of Merton [2024] EWHC 584 (Admin), an important case concerning “extended” appeals in special educational needs cases before the First Tier Tribunal (“FTT”), and in particular looking at the requirements of bodies responding to recommendations made by the FTT.
The extended appeal powers apply to special educational appeals to the FTT, and permit the FTT to make “recommendations” on health and social care needs and provision in the Education, Health and Care Plan under appeal. Where the FTT makes recommendations, the relevant body (usually the local authority (“LA”) for social care, and Integrated Care Board for health care) has a duty to either accept the recommendation or provide written reasons for not adopting the recommendations. This is set out in the SEND (FTT Recommendations Power) Regulations 2017.
The parents in the present case had sought a 52-week residential placement for their son LS. This was both for educational reasons, as well as social care reasons, because of increasingly challenging behaviour in the home environment. The FTT heard evidence and ordered “waking day” provision in Section F of the EHC Plan, which sets out special educational provision, and then recommended a “52 week residential” provision in Section H, which sets out social care provision.
The LA secured LS a residential placement, but in relation to social care, decided against adopting the recommendations of the FTT and provided a social care package during holidays. It sent a letter setting out why it was not implementing the social care recommendation which set out, amongst other things, the importance of keeping families together, the lack of opportunity to provide provision within the home environment to date, and ensuring LS’s voice was considered in the process.
The primary ground of challenge was that in fact the FTT had ordered a 52 week provision as part of Section F. It referred to the provision which must be part of the waking day and stated the Tribunal had found that the provision outside of the school day, even if “social care provision”, was “special educational provision” by virtue of section 21(5) of the Children and Families Act 2014 as it “educated or trained”.
This ground was rejected by the Court. In short, if the FTT had found it was special educational provision by virtue of section 21(5) it would have belonged in Section F (§39 and §47), and the FTT had put it in Section H. The reference to a “waking day” provision in Section F was not the same thing as a 52 week provision (§46).
However, the Court did find the letter setting out the reasons why the LA did not accept the recommendations was unlawful. It considered “cogent reasons” had to be provided given the specialist nature of the FTT, and considered insufficient consideration had been given to the degree of regression in LS’s behaviour in recent times, the belief of the parents and the contrast between LS in a managed school environment and his difficulties with transition.
Leon Glenister is a barrister at Landmark Chambers. He acted for the London Borough of Merton, instructed by Charlene Melbourne of South London Legal Partnership.
