Upper Tribunal allows SEN appeal brought by parents and supported by local authority

The appeal concerned whether the First-tier Tribunal erred in deciding that section 61 of the Children and Families Act 2014 did not apply, and whether it was an error of law to set out in Section F of an EHC plan - which contains the required special educational provision - the location in which the special educational provision was to be made.

The appellants' appeal to the tribunal was made under s51 and related to the contents of Sections B, F and I of the EHC plan for their son, S.

S was 6 years old at the time of the tribunal hearing. He had a diagnosis of autism spectrum disorder (ASD) and a language delay.

He was on roll at a particular infant school and, until shortly before the tribunal hearing, attended part-time for 1 hour per day, having previously had a failed placement at another school. In the remaining time, he was being supported by his parents and a tutor at home with applied behavioural analysis (ABA).

The issues in dispute in relation to Section F concerned the requirement for ABA and its associated interventions, and whether provision should be made for 48 weeks of the year.

In relation to Section I, the appellants wished S to receive education otherwise than in school (EOTIS) so that he could receive full-time ABA provision in the home. They did not consider it appropriate for S's special educational provision to be made in a school.

The respondent local authority considered that all or part of S's special educational needs could be met within a specialist setting and as such an EOTIS package was not necessary, as the threshold in s61 was not met.

As the appellants had not named a school, the respondent asked the tribunal to name the type of school S required as "specialist".

The appeal was allowed in part. Amendments were ordered to Sections B and F, and Section I was amended to state that the type of placement required was a special school and to leave the name of placement blank.

Upper Tribunal judge Zachary Citron gave permission to appeal, limited to the following grounds:

a. That the tribunal’s conclusion, at [86], that it was not inappropriate for some or all of the special educational provision which S required, to be made in a school, was irrational or inadequately explained, since

i, it was based, to a very material extent, on the reasoning in [85], dealing with the evidence of S being currently not ready to attend school, and it being unlikely that S would attend a school setting at this time  - and that reasoning was itself (arguably) irrational or inadequately explained, since the only matters cited to counter the evidence of S's unpreparedness for school were:

1. that S was able to "access the community, for example by attending the temple"

2. that, in the tribunal's view, S "could attend alternative provision made through a school where he was on roll" - yet there was no explanation of what the "alternative provision through a school" was or how and why it countered or got around the evidence of S's unpreparedness for school (so allowing the tribunal to conclude that provision made at a school was appropriate). 

ii. the tribunal had found at [52] that the special educational provision required by S, as regards 'cognition and learning', was a home-based programme i.e. it specified that this special educational provision should not be made in a school; however, the tribunal did not explain how this reconciled with its (implicit if not explicit) conclusion that some of S's special educational provision could appropriately be made in a school (such as, by explaining what part of S's special educational provision it had in mind); and

iii. at [81], the tribunal had considered whether S's special educational provision could be made at a school (and decided that, in a "specialist setting", most if not all of it could); that paragraph did not, however, consider the appropriateness of the provision being made in a school, given the evidence of S's unpreparedness for school - that was considered only at [85];

b. That the tribunal had no power to specify, in Section F of S's EHC plan, the special educational provision in question as "home based" (at it did at [52]), as its power (as regards Section F) was restricted to specifying the special educational provision required (as opposed to the place where the provision was to be made);

c. That the tribunal erred at [88-89] where it applied s40(2) without, on the face of it, considering s33(2): in particular, it did not explain why naming a mainstream (as opposed to a special) school in Section I would be incompatible with the wishes of S's parents, or the provision of efficient education for others.

At the time when permission to appeal was being considered, the local authority argued that the appellants' appeal was an "abuse of process", because the EHC plan which was the subject of the tribunal decision had been, in effect, superseded, after annual review; the appellants had lodged an appeal in the tribunal against S's new EHC plan; and one of the outcomes urged on the Upper Tribunal by the appellants, if the appeal was successful, was to set aside the tribunal decision and remit the case to the tribunal with directions for its reconsideration.

Upper Tribunal Judge Citron said: “In the permission decision, I stated that, although the Respondent was free to develop this argument in its response to the appeal, I was not immediately attracted by it, given the (in my view, quite clear) difference between the Upper Tribunal (a superior court of record) making a binding decision on alleged legal errors in a tribunal's decision, as opposed to a second tribunal making a decision that may well involve some of the same issues as the first tribunal's decision; at first blush, I could see an argument for coordination as between the Upper Tribunal's decision and that of the second tribunal (for example, the second tribunal awaiting the Upper Tribunal's decision before making its own) - but that was quite different from saying the Upper Tribunal proceedings are an 'abuse'.”

In its response to the appeal, the respondent local authority stated that it "accepted" the "findings in respect of the grounds of appeal" in the permission decision and made no further representations in respect of the grounds of appeal.

The appellants asked the Upper Tribunal to issue a reasoned decision; they said the issues in the new tribunal appeal were essentially the same as those in tribunal decision in the appeal to the Upper Tribunal; they asked that the Upper Tribunal direct a differently constituted panel for the hearing of the new tribunal appeal.

Considering grounds a, b and c, Upper Tribunal Judge Citron came to the following conclusions:

“Ground a identifies two material errors of law which affect the tribunal decision's conclusion that s61 did not apply: first, that this conclusion is materially inconsistent with its finding that S's required special educational provision included a home based ABA programme; and, second, that the conclusion was based, to a material extent, on a rationale that S's necessary special educational provision could be made via "alternative provision" that would be "in a school", but the explanation of what this provision would be, and how it would countervail S's unpreparedness for school, was materially inadequate.

“Ground b challenges the inclusion in Section F of a home-based ABA programme, as, per regulation 12(1)(f), the tribunal's power was limited to setting out the special educational provision required - not the location where that special educational provision was to be made. […] I conclude that it was not an error of law for the tribunal to set out a home-based ABA programme in Section F, albeit that it would have been good practice for it to explain in terms why the location where this provision was to be made was inherent or integral to its educational quality.

“Ground c challenges the tribunal decision's setting out "a special school" as the type of school to be attended by S - the ground alleges that if, on the basis of the tribunal decision's conclusion that s61 did not apply, Section I was not to be left blank, "a mainstream school" should have been set out. […] I conclude that this ground is made out: it was an error of law for the tribunal decision, having decided that s61 did not apply and that Section I could not be left blank, to set out "a special school" in Section I, as (1) the Appellants hadn't requested that a particular school be named in S's EHC plan, and (2) there was no finding that a mainstream school was incompatible with the Appellants' wishes or with the provision of efficient education for others.”

Upper Tribunal Judge Citron set aside the tribunal decision and remitted the case to the tribunal, to be consolidated with the new tribunal appeal.

Lottie Winson