| SPOTLIGHT |
The Upper Tribunal has allowed an appeal made by the parents of a 7-year-old boy with autism, finding that a decision by the First-tier tribunal did not take the child’s negative feelings about the local authority preferred school into account, which was an error of law.
In TM and SM v Liverpool City Council (Special educational needs - special educational provision - naming school) [2024], Upper Tribunal Judge Zachary Citron concluded: “The error of law identified is material to the decision as respects the school named in Section I and so it is right that I set the decision aside as respects that aspect of the appeal.”
The appeal concerned a boy, (S), aged 7. He has a diagnosis of autism spectrum disorder (ASD) with associated sensory processing difficulties and development coordination disorder (DCD).
The appeal to the First-tier tribunal (FTT), made by S’s parents, was against the contents of the Education Health and Care (EHC) plan made for S by Liverpool City Council, communicated to him by letter on 25 January 2023.
The appeal concerned Sections B, F, and I of S’s EHC plan. The tribunal dismissed the parent’s appeal.
The issue in respect of section I was that the local authority favoured School X, a maintained mainstream primary school with a special resourced provision for pupils with ASD, whereas the parents had requested School Y, a non-maintained special school (known to them, and to S, as S had been attending enrichment sessions there one afternoon a week).
Judge Zachary Citron said: “The Appellants argued that School X was inappropriate for S; the Respondent argued that both schools were suitable, but that School Y fell within s39(4)(b)(ii) (and so the parents’ preferred school did not have to be named in Section I).”
The FTT accepted the local authority’s argument.
It concluded its reasoning as follows:
“Given the large cost differentiation between the two placements, the Tribunal conclude the legal test under s.39(4) of the CFA 2014 referenced above has been made out. [S]’s attendance at [School Y] would be incompatible with the efficient use of resources.
“Given this conclusion, the Tribunal needed to go on to consider the principle that ‘pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure’ under section 9 of the CFA 2014.
“Under this section the Tribunal considered both the Appellants’ views and the views expressed by [S] at the hearing, which were that he wishes to attend [School Y] and that he enjoys the enrichments sessions he attends there. Taking this into account, the Tribunal still found that the difference in cost between the two placements meant that [S]’s attendance at [School Y] was not compatible with the avoidance of unreasonable public expenditure in accordance with the legal test that must be applied.”
On 22 April 2024, S’s parents were granted permission to appeal the decision.
Their reasons for appealing, as set out in their application form to the UT for permission to appeal were as follows:
a. S’s views and opposition to attending School X;
b. the tribunal failed to consider S’s views (especially his opposition to School X);
c. that S did not wish to attend School X – it was causing him to be anxious; he was refusing to leave the house and do the things he used to enjoy; that S gets very angry, upset and tense when School X is mentioned; that he threatens to harm himself if forced to go there;
d. the summary of S’s views provided to the tribunal (for example at pages 210 and 212) were completed before the Respondent stated their named school as School X; “therefore this evidence was not included in the documentary evidence before the panel”;
e. S was not asked about how he felt about School X at the hearing; nor were the Appellants asked about how S felt about going there; the panel therefore had no evidence as to S’s views about attending there;
f. S’s views regarding School X should have been considered as it is unclear what is proposed to overcome his opposition.
Judge Zachary Citron said: “The Appellants also sent the Upper Tribunal a letter from a registrar in developmental paediatrics at an NHS hospital (clinic date 7 February 2024) stating that S was extremely anxious and stressed regarding mainstream school environments; that he had severe trauma from his last mainstream placement; reporting that S said that if he was forced to go to School X, he would harm himself; that S would not go out and constantly stayed in his room where he felt safe; that the Appellants have to closely monitor S’s diet as he refused to eat; that S has cerebral visual impairment which makes him extremely anxious regarding the surrounding environment and the amount of support he needs; and that S has pathological demand avoidance which makes him refrain from doing usual daily activities even the necessary ones.”
He added: “The letter strongly recommended that S’s mental health difficulties, his autism, and his pathological demand avoidance are all kept in mind when discussing his educational options.”
He found it was “realistically arguable” that the registrar’s letter was admissible in the Upper Tribunal proceedings.
In response to the appeal, the local authority argued that the tribunal did have sufficient regard to S’s “views, wishes and feelings” prior to determining that School X was appropriate for him.
Further, given S’s age, it was “reasonable” for S’s views to have been gathered by experts and by his parents prior to the hearing, and as there are no comments by S about School X in the tribunal bundle, it was appropriate for the tribunal to proceed on the basis that S’s views would be the same as those expressed by his parents.
The Local Authority submitted that S was “not yet sufficiently mature” to fully understand that his transition to School X would be managed carefully and sensitively, at a pace he would not find overwhelming. Also, he was not mature enough to understand that he would be attending School X’s SEN unit (which was quite different to attending a mainstream class at the school), the Upper tribunal judge noted.
Turning to the question of whether the tribunal decision erred in law and should be set aside, Judge Zachary Citron said:
“The tribunal decision structured its reasoning on the appeal against School X being named in Section I, as follows:
a. first, it decided, and explained, that School X and School Y were both “able to meet S’s needs”.
b. it then considered “cost differentials”, and concluded, at [36], that S’s attendance at School Y would be “incompatible with the efficient use of resources”.
c. it then said that, given that conclusion, it needed to consider the principle in s9 Education Act 1996 (“EA”) ([37] refers to “CFA 2014”, but this is clearly a slip of the pen, as s9 EA is cited verbatim in [37] (as indeed it was earlier in the decision, at [14]));
d. it then summarised the Appellants’ views, and the views expressed by S at the hearing, as being that S wished to attend School Y and enjoyed the enrichment sessions he attended there;
e. finally it concluded, taking those views into account, that the difference in cost between School X and School Y meant that S’s attendance at School Y was not compatible with the avoidance of unreasonable public expenditure (being, it said, the legal test that must be applied).”
He continued: “In terms of the statutory code, the above analysis reached three key conclusions:
a. first, that s39(4) applied, by virtue of s39(4)(b)(ii) applying; (and so School Y, the parents’ preference, did not have to be named in Section I);
b. second, that School X would be appropriate for S, such that it should be named in Section I (s39(5)); and
c. third, the naming of School X in Section I was not prevented by the operation of s9 EA.”
Discussing the appeal, Judge Zachary Citron said: “Section 19 [Children and Families Act 2014] is relevant to the second of the above conclusions, that applying s39(5) (as deeming a school “appropriate for” a child under s39(5) is a function of the local authority under Part 3 of the Act). The tribunal did not expressly refer to s19 in making that decision. That, in itself, is no error of law – what matters is whether, in substance, the tribunal, when deciding that School X was appropriate for S, did what s19 requires: in particular, did it have regard to S’s views, wishes and feelings.”
He added: “The tribunal decision did expressly refer to, and apply, s9 EA; and there is some overlap between that provision and s19, in that both require the views of the parents to be taken into account. But, significantly (in my view) for the facts of this case, there are differences between s9 EA and s19, even accepting (as was said in M & M v W Sussex) that, often, the “views” of the parents and the child “tend to be broadly aligned”.”
He said: “first, s19 extends to taking into account the “feelings” of the child (as well as their “views” and “wishes”). I note that, whereas 7-year-olds may not, in circumstances of relative family harmony, have “views” and “wishes” very different from those of their parents (due to their relative immaturity), “feelings” are something typical 7-year-olds do have.”
He concluded that because the tribunal decision expressly considered s9 EA, but not s19, it was “not clear, on its face” that the tribunal had regard to S’s feelings about the appropriateness of School X for him.
He continued: “In a “typical” case, that would probably not denote any error of law, in that it could quite reasonably be inferred that S’s feelings about the appropriateness of School X for him were, simply, that it was not the right school for him (because School Y was).
“In this case, however, we have the following particular circumstances:
a. the local authority’s response to the appeal to the tribunal, which was required, by the tribunal’s procedure rules, to include S’s views about the issues raised by the proceedings, or the reasons why the LA had not ascertained those views, said this: “[S] reports that he likes [School Y]. His views are being gathered by his parents and will be made available to the tribunal.”; the response was made on 23 May 2023; it was not until 28 June 2023 that the Respondent notified that tribunal that it wished to name School X;
b. in the event, the tribunal bundle, it appears, included nothing specifically as to S’s feelings about School X: there is a note on page 213 from his parents’ visit to School X on 6 July 2023, but this records the parents’ (critical) views of the school, rather than S’s feelings about it.
c. S attended the tribunal hearing briefly at the beginning;
d. the letter from the registrar (clinic date 7 February 2024), whose contents are summarised above.”
Considering the question of whether, in the particular circumstances of the case, one could infer that the tribunal did have regard to S’s feelings about School X, Judge Zachary Citron said: “It seems the position was that there was nothing in bundle about this; the tribunal does not seem to have elicited evidence about it from S in the course of his short attendance at the hearing; and yet, as the registrar’s letter indicates, S had very strong feelings on the subject, indeed.
He added: “It seems to me that the tribunal decision did not, in fact, take these feelings into account; that was an error of law, and a material one, as the strength of feeling was such that it may have had an impact on the decision as to the appropriateness of School X for S.”
He noted: “As to why, procedurally, the tribunal did not have evidence of S’s strength of feeling before it: this seems, in part, to be due to some “passing of the buck” as between the Respondent and the Appellants, as regards the responsibility to present S’s views.”
Allowing the parent’s appeal, the Upper Tribunal judge set aside the decision as respects the school named in Section I, and remitted the case for reconsideration - directing that a “fresh panel” consider the remitted case.
He concluded: “The error of law identified is material to the decision as respects the school named in Section I and so it is right that I set the decision aside as respects that aspect of the appeal. Equally, I see no reason to interfere with the other aspects of the decision, as they have not been challenged, and are distinct.”
Lottie Winson
