Upper Tribunal finds First-tier Tribunal did not make error of law in decision on class size

The case concerned the Education, Health and Care Plan for ‘BZR’, who was born in 2012. Her parents were referred to in the judgment as ‘BZP’ and ‘BZQ’.

The case began with an appeal to the First-tier Tribunal by BZP and BZQ under section 51 of the Children and Families Act 2014.

The tribunal made a decision, but the parents applied for permission to appeal to the Upper Tribunal.

The application was referred to Tribunal Judge McCarthy. He carried out a review under rules 47 and 49 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008.

Judge McCarthy referred some parts of the decision back to the tribunal.

Upper Tribunal Judge Jacobs said: “This is permitted by rule 47(2), which authorises a review of part of a decision. He then decided that he would 'not grant permission to appeal to the Upper Tribunal.' A decision on that issue is required by rule 47(2). The judge's language was equivalent to refusing permission to appeal.

“The parents then applied to the Upper Tribunal for permission to appeal and the case was referred to me. I had to consider it under section 11 of the Tribunals, Courts and Enforcement Act 2007.”

Upper Tribunal Judge Jacobs gave permission on the following grounds:

1. The Tribunal reached a decision in relation to the adult:pupil ratio BZR requires which was plainly not open to it (ie irrational).
2. The Tribunal's decision not to specify psychotherapy as special educational provision for BZR was irrational and/or inadequately reasoned.

The First-tier Tribunal has now made a new decision, which incorporated the tribunal's original reasons on the grounds of appeal.

Upper Tribunal Judge Jacobs said: “I have quoted from the original decision, as that is the decision that is under appeal.”

In the tribunal decision under appeal, the parties agreed that BZR needed to be educated in a small class which can offer a low arousal environment. There was disagreement as to whether an adult:pupil ratio of 1:5 should be included.

An educational psychologist who attended on behalf of the parents was of the view that 1:5 was a reasonable ratio and that it was necessary to specify this to ensure that BZR had a high level of direct teacher input throughout the day.

The council's educational psychologist disagreed. She said that the adult:pupil ratio should be based on the needs of all children in a class. It also had to take account of the capacity of a classroom. She said that being prescriptive impacts on the flexibility that is required in any setting.

The FTT said it had not been provided with any specific guidance that recommended an adult:pupil ratio for any given class. In the absence of any specific guidance, the Tribunal agreed with the council's educational psychologist that settings needed flexibility when providing education for pupils.

The First-tier Tribunal was satisfied that the following wording would allow a degree of flexibility, whilst also ensuring that BZR had an appropriate level of direct teacher contact:

"BZR will be educated in a small class which can offer a low arousal environment, with an adult pupil ratio sufficient to ensure a high level of direct teacher input throughout the day.”

BZP argued in the Upper Tribunal that the tribunal's decision was not sufficiently precise to be enforced. He referred not only to the adult:pupil ratio, but also to what would amount to a 'small class'.

Considering this, Upper Tribunal Judge Jacobs said: “Upper Tribunal Judge West considered the issue of precision in Worcestershire County Council v SE [2020] UKUT 217 (AAC). I accept the conclusions that he distilled from a thorough coverage of the case law. At first reading, there seems to be a tension in the cases between precision and flexibility. At least in part, that is more apparent than real. Context is always important, in special education needs cases all the more so. And, as Mr Wilson [on behalf of the council] pointed out, the First-tier Tribunal has to work on evidence. In this case, I would make these points.

“First, a tribunal cannot make more specific findings of fact than the evidence allows, even when making use of the knowledge and experience of the specialist members. Second, there may be a point beyond which it is not possible to be more precise, regardless of the evidence. Take this example, which I have made up but based on the tribunal's use of 'small class'. Is it possible to say that a class of 4 would be small, but a class of 5 would not? There may be cases in which such a difference would be significant, but there would need to be evidence to justify drawing such a fine distinction. Third, a tribunal must have a reasoned basis for any change it makes to a plan. This will depend, at least in part, on the reasons given by the witnesses, especially the expert witnesses.

“Bringing those points together in this case, [the educational psychologist who attended on behalf of the parents] linked the class size to a low arousal environment. On that evidence, it was sufficient to specific a small class. Anything more precise would set an arbitrary figure, as arousal would depend not just on the number of pupils in the class, but also on the activities that were taking place, the behaviour of the other pupils, the noise levels and so on.”

Turning to the tribunal’s decision on the psychotherapy issue, Upper Tribunal Judge Jacobs quoted the Fist-Tier Tribunal’s reasoning as follows:

"36. Section F of WD16 [working document version 16] states:

"A cycle of weekly individual sessions with a psychotherapist (who could be a play therapist) to help BZR develop her sense of her own identity, explore and learn to manage her emotional needs, and to work through the consequences of the traumatic primary school experience. At least ten sessions will be required, to help BZR establish a therapeutic relationship with the therapist, as well as exploring specific issues."

37. [The educational psychologist] had included this in the EHC plan based on the recommendation from [a] Clinical Nurse Specialist at the RISE Access and Engagement Team in a letter ….. That letter says that a meeting with BZR and her Parents was held online early in 2023. At that meeting BZR found it 'difficult to engage with the process'. An agreement was reached to meet again online; however, there were difficulties in arranging the meeting. The letter says that 'it wasn't until quite recently that we were able to complete the assessment'.

38. It is unclear from the letter when or how the assessment took place or whether it included a meeting with BZR.

39. Section G of WD16 includes an extract from the RISE letter:

"Referral has been submitted by RISE for child psychotherapy to arrange for a meeting to explore therapeutic work. In addition, consideration of specific trauma related therapy will be considered at the same time and there is a possibility that the psychotherapy offered will also be informed by specific trauma informed therapy."

40. The Tribunal was not provided with a report from a qualified psychotherapist who had assessed BZR. In the absence of any professional report, the Tribunal was unable to assess what therapy, if any, was required and if so how many sessions would be needed.

41. In these circumstances, it did not find it necessary to determine whether therapeutic provision should form part of Section F, in that it educates and trains. It was satisfied there was insufficient evidence to include this provision in Section of the EHC plan.”

Analysing the appeal, Upper Tribunal Judge Jacobs said: “The passage quoted by the tribunal in paragraph 36 was a proposal inserted into the draft working document by the parents. The tribunal decided not to include the proposal. Its reasoning is in paragraphs 38 and 40. The tribunal did not have the necessary evidence from an appropriate expert on which it could make the finding necessary to support the parents' proposal. That was a rational approach to the evidence.

“I have to decide whether the tribunal made an error of law on the evidence before it. The parents have now provided evidence that was not before the tribunal. If I had a jurisdiction equivalent to that of the First-tier Tribunal, I could take it into account. But I do not. That tribunal is entitled to take account of evidence that was not available to the local authority when it drafted the plan. The Upper Tribunal, in contrast, can only set aside a decision of the First-tier Tribunal for error of law.”

Upper Tribunal Judge Jacobs concluded that the FTT’s decision did not involve the making of an error on a point of law under section 12 of the Tribunals, Courts and Enforcement Act 2007 in either of the issues under appeal.