SPOTLIGHT

A zero sum game?

The number of SEND tribunal cases is rising and the proportion of appeals ‘lost’ by local authorities is at a record high. Lottie Winson talks to education lawyers to understand the reasons why, and sets out the results of Local Government Lawyer’s exclusive survey.

Health and social needs and EHCPs

The Upper Tribunal has, for the first time, provided detailed guidance as to the approach the First-tier Tribunal (Special Educational Needs and Disability) (“the FtT”) should take when considering whether to make recommendations as to health and social care needs/provision in Education, Health and Care Plans (“EHC Plans”). Mark Greaves looks at the key points.

The detailed ten points of guidance are set out at para. 108 of the Upper Tribunal’s judgment in MM (as alternative person for C) v Royal Borough of Greenwich [2024] UKUT 179 (AAC) and provide, in summary, as follows:

  1. First, the FtT’s powers to make health and social care recommendations are materially the same as the powers to make orders about educational needs and provision to be specified in Sections B and F of EHC Plans.
  2. Second, although the FtT only makes recommendations rather than orders in relation to health and social care, this does not mean the FtT’s decision-making in relation to them is any less important.
  3. Third, the FtT exercises an inquisitorial jurisdiction in relation to health and social care in the same way as it does in relation to special educational needs.
  4. Fourth, the primary burden is on the parties to provide the necessary evidence to establish their respective cases. If the parties fail to do so, the FtT may decide the case on the basis of the evidence before it or may, exercising its inquisitorial jurisdiction and case management powers, make directions for the parties to provide additional evidence.
  5. Fifth, the FtT is not required, before determining what recommendations to make, to ensure that the local authority has completed all of its statutory obligations. Health and social services assessments are not necessary preconditions to the exercise of the FtT’s jurisdiction to make recommendations. Rather, they are merely one means by which relevant evidence for the FtT to consider may be obtained.
  6. Sixth, unlike in relation to special educational needs, there is no statutory requirement for an assessment before health and social care provision can be included in an EHC Plan.
  7. Seventh, it may be relevant for the FtT to take into account certain elements of the underlying statutory framework when making recommendations. For example, regard to the statutory framework will enable the FtT to understand which social care provision needs to be in section H1 of an EHC Plan, and which in section H2.
  8. Eighth, the underlying statutory framework may also inform the approach that the FtT takes where there has been a breakdown in the relationship between a parent and social services. In particular, under the statutory framework, a lack of co-operation by a parent should not in and of itself be treated by the local authority as an obstacle to completing an assessment for the child or young person. This is likely to be a relevant factor for the FtT to take into account.
  9. Ninth, a recommendation for social care provision made by the FtT will carry more weight if it is made on the basis of evidence and by reference to the relevant eligibility criteria. For this reason, as a matter of good practice, where social care recommendations are sought the FtT should require the local authority to provide it with the relevant local criteria. The same goes for healthcare, although different considerations may apply because the FtT may need to make ‘third party’ orders against the responsible commissioning body for evidence and submissions (if necessary).
  10. Tenth and finally, although there are a number of respects in which the FtT’s jurisdiction over health and social care is essentially the same as its jurisdiction over education, there are also important differences. In particular, the key differences are that recommendations are not directly enforceable, and the FtT has no ‘freestanding’ jurisdiction over health and social care. These differences mean that (a) what is required for the FtT lawfully to “specify” health/social care needs and provisions is not as rigid as it is for special educational needs and provision; (b) if the evidence the FtT has is “thin”, it may adjourn for further evidence, or refuse to make a recommendation, but delay is likely to be inappropriate where a child’s education is at stake, while to decline to make a recommendation, even where the FtT may have useful recommendations to offer, risks frustrating the statutory purpose; (c) there is in principle nothing wrong with making recommendations on a time-limited basis if the evidence available only relates to a limited period.

The judgment is also legally significant for providing further guidance as to what the FtT needs to do where an issue as to the capacity of a young person to litigate arises, supplementing the advice of UTJ Jacobs in Buckinghamshire CC v SJ [2016] UKUT 254 (AAC) (see, in particular, paras 32-48). In addition, the Upper Tribunal suggested for the first time (albeit strictly obiter) that the FtT has the power, in principle, to remove an alternative person who is not acting in the bests interests of the young person and to appoint a replacement litigation friend (see, in particular, paras 56-64).

Mark Greaves is a barrister at Matrix Chambers. He was instructed by the Respondent in this appeal. The Upper Tribunal’s guidance on health and social care recommendations was informed by written submissions prepared jointly by Mark and Counsel for the Appellant.