Upper Tribunal allows appeal by Welsh council over decision that child has additional learning needs

In Denbighshire County Council v AB & Anor [2026] UKUT 376 (AAC) (05 October 2026), Lady Poole and Sir Gary Hickinbottom found that, notwithstanding the child's diagnoses of autism spectrum disorder and ADHD, the Education Tribunal “erred in law” in its finding that she had additional learning needs within the meaning of sections 2 and 3 of the Additional Learning Needs and Education Tribunal (Wales) Act 2018.

The child was in her last year of primary school. Her parents, the respondents, sought a determination of whether she had additional learning needs. Both her school and the local authority found she did not.

The respondents appealed to the Education Tribunal for Wales (ETW).

The ETW accepted that C was “academically able” and achieving well at school without any support beyond that ordinarily expected from good teaching practice.

However, it found that, because of "masking", C had to work harder to maintain her level of presentation and achievements at school.

The ETW concluded that C has Additional Learning Needs (ALN), and requires Additional Learning Provision (ALP) given those needs.

The ETW directed the council to prepare an individual development plan (IDP). 

The council prepared an IDP in April 2026, and C moved successfully to a mainstream high school in the summer of 2026. However, the council also appealed the decision of the ETW. 

The council contended that the ETW failed properly to apply the legal tests in the Additional Learning Needs and Education Tribunal (Wales) Act 2018 (the 2018 Act) and reached a conclusion that was not properly open to it on the evidence. 

The council further argued that the ETW failed to provide adequate reasons for the decision that C had ALN, and “unjustifiably relied on a future position not tested in evidence”.

The respondents contended that the ETW made no error of law and was entitled to reach the decision it did.

Considering the case, the Upper Tribunal judges said: “In the part of its decision seeking to apply section 2(2)(a) of the 2018 Act, the ETW found that, as a consequence of masking, C had to work harder to maintain her presentation and achievements. That resulted in a significantly greater difficulty in learning than the majority of others of the same age. 

“We consider that the evidence about masking must be approached with care. The ETW described masking as behaviour adopted at school to try to fit in, avoid negative reactions, or meet the expectations of those around them, which can be exhausting for some pupils. However, mimicking behaviour to fit in and meet expectations at school, emotional outbursts and tantrums at home, and reliance on parental support, are types of behaviour which may be exhibited by many children. They do not, of themselves, show that a child has significantly greater difficulty in learning than the majority of others the same age. Further, it is not necessarily the case that all children with ASD mask in school. There must be evidence with regard to the particular child before the test in section 2(2)(a) is met.”

The judges continued: “However, in this case, we are satisfied that the ETW was entitled to find that the test in section 2(2)(a) of the 2018 Act was met. The ETW made factual findings not only that C experienced emotional outbursts and required support from her parents at home, but also that C suffered from anxiety manifesting itself in stomach aches and vomiting on numerous occasions. Those findings were based on evidence from C's parents, and were supported by correspondence involving two different medical professionals.

“[…] Although the ETW made findings under both sections 2(2)(a) and (b) of the 2018 Act, a "learning difficulty or disability" is established if either test is met. The ETW's findings on section 2(2)(b) are therefore not material to the outcome of this appeal.”

The Upper Tribunal described the ETW's reasoning under section 2(2)(b) of the 2018 Act (paragraph 36) as “problematic”. 

The judges said: “The ETW relied on its conclusions about masking to conclude that C's learning difficulty or disability prevented or hindered her from making use of facilities for education or training of a kind generally provided for others of the same age in mainstream institutions. However, section 2(2)(b) sets out a different test from section 2(2)(a). It is not in dispute that C has a disability for the purposes of the Equality Act 2010.  But, to fall within the scope of section 2(2)(b), that disability ‘must prevent or hinder the child making use of educational or training facilities’. There has to be evidence that the child is in fact prevented or hindered from making use of those facilities.”

The Upper Tribunal then emphasised that any need or requirement cannot be ALN “if it does not call for ALP”. 

Concluding the case, Lady Poole and Sir Gary Hickinbottom said: “The ETW erred in law in finding that C has ALN. It failed to apply correctly the tests in sections 2 and 3 of the 2018 Act, and purported to make findings on the basis of its expertise which were not properly open to it. In so finding, we are not interfering with any facts properly found by the ETW or attaching different weight to facts found (Henderson v Foxworth Investments Ltd [2014] UKSC 41 and Volpi v Volpi [2022] EWCA Civ 464). Rather, we have identified errors of law in the decision of the ETW.  

“Although the Council also argued that the ETW's reasons were inadequate, it is unnecessary to consider that ground. This was not, in essence, a reasons case. The central errors of law in this case were the ETW's misapplication of the statutory tests and its improper use of its specialist expertise.

“Section 12 of the Tribunals, Courts and Enforcement Act 2007 (the 2007 Act) applies to this appeal by virtue of section 81 of the 2018 Act. For reasons given above, the ETW's decision involved the making of an error on a point of law within the meaning of section 12(1) of the 2007 Act.”

The council's appeal was allowed, but the Upper Tribunal did not consider it appropriate to set aside the decision and re-make it, or remit it to the ETW for reconsideration.

The judges said: “That is because an IDP was prepared by the Council following the finding of ALN in the ETW's decision under appeal. C is now in secondary school. That IDP is due to be reviewed, invitations having been issued for a review this month (October 2026).  Decisions will be made thereafter about ALN and ALP on the basis of up to date information and circumstances.”

Lottie Winson