Upper Tribunal hands down ruling in first case on additional learning provision under 2018 legislation in Wales

The Upper Tribunal has in part allowed a council’s appeal against a decision by the Education Tribunal for Wales in relation to the naming of a school in a child’s Individual Development Plan, in the first case to have been brought under the new 2018 Act regime for Additional Learning Provision in Wales.

In Cardiff Council v X & Anor [2025] UKUT 68 (AAC) (15 February 2025), Sir Gary Hickinbottom, President of Welsh Tribunals, concluded that the Education Tribunal for Wales (ETW) Panel made a “substantial error of law” in its decision by naming School A in Section 2D of the child’s Individual Development Plan (IDP), and remitted the matter back to the tribunal for reconsideration and redetermination.

He added: “The case illustrates the need, when dealing with legislation of the Senedd, to avoid assumptions that the devolved scheme reflects, in any particular way, an earlier scheme found in Westminster legislation.”

The case concerned the proper approach to specifying a school in an IDP under section 48 of the Additional Learning Needs and Education Tribunal (Wales) Act 2018, and the extent to which that approach is informed by section 9 of the Education Act 1996.

The appeal, brought by the local authority, was against a decision by the ETW allowing the appeal of the respondents (Mr & Mrs X, the parents of X) against a decision by the council to issue an IDP in relation to X's additional learning needs in the terms that it did. 

In particular, the council sought to appeal against the decision of the ETW Panel (i) to name School A in Section 2D of the IDP to secure X's admission to the school (Ground 1), and (ii) to determine that X's additional learning needs required 27.5 hours of one-to-one TA support per week and specify that requirement in Section 2B of the IDP (Ground 2).

Outlining the facts of the case, Sir Gary noted that X has been diagnosed with dyslexia, dysgraphia and dyscalculia, with significant difficulties with working memory, processing speed and expressive language.  He has been identified by the council as having additional learning needs (ALN). 

X is of an age at which he was due to transition into year 7 (from his primary school into a secondary school) in September 2024.

Various draft IDPs were produced in early 2023. In October 2023, Mr & Mrs X, who did not agree with the IDP then proposed, requested the council reconsider it. They confirmed their parental preference for X to be educated at School C, an independent school in Cardiff, and they asked for this school to be named in Section 2D of the IDP. They also asked for Section 2B of the IDP to be changed to specify 27.5 hours of TA time per week.

The final IDP was issued in February 2024, in which the council confirmed that, in its view, X's ALP could be secured and delivered at any mainstream school in Cardiff and so it had not named any particular school in the IDP.  Nor did the IDP specify 27.5 hours of TA time.

Mr & Mrs X appealed to the ETW in respect of Section 2B of the IDP and Section 2D. They initially appealed the failure to name School C as the specified school, but, because Mr & Mrs X had not secured a place at School C, they later amended their case statement so that School A, a maintained school, was expressed to be the parental preference.

In the meantime, in May 2024, Mr & Mrs X made an application for a place at a maintained school through the council's Admissions Team, naming School A and School D as their two parental preferences. 

However, the Admissions Team confirmed that it was unable to offer X a place at either school.

It advised that there were available places at six secondary schools, the closest of those schools to X's home being School B. School B confirmed that it had the facilities to meet X's identified ALP. 

In October 2024, the ETW Panel issued a decision allowing the parents' appeal, and (i) requiring School A to be named in Section 2D of the IDP, and (ii) requiring Section 2B of the IDP to specify 27.5 hours of TA time per week.

The President of Welsh Tribunals noted: “Despite several applications to the ETW and this tribunal for a stay of that Decision pending appeal having been refused, the Council has not secured a place for X at School A. Mr & Mrs X have refused to accept the Council's offer to place X in School B (or another school in Cardiff with places). The unhappy result has been that X has been out of school since he left primary school in July 2024.”

Turning to the local authority’s appeal, the judge first dealt with the second ground – that the ETW Panel erred in concluding that X requires 27.5 hours of TA support per week. This was refused permission.

Moving onto ground one – that the ETW Panel “failed properly to construe and apply section 48 of the Additional Learning Needs and Education Tribunal (Wales) Act 2018”, the judge observed: “The ETW Panel appear to have adopted the approach to the 2018 Act regime in Wales put forward by Mr Friel [counsel for the parents].

“Whilst Mr Friel accepts that section 9 does not impose an absolute duty on an authority to specify in an IDP the school which is the parental preference, he submits that section 9 and parental preference is the starting point for, and focus of, the analysis under the 2018 Act. Section 9 must be considered before section 48 is applied.”

In support of that proposition, Mr Friel relied on the following submission (among others):

“In considering section 9 in this context, the approach set out by this tribunal in IM v London Borough of Croydon is well-established and correct. In that Decision, Upper Tribunal Judge Levenson held that, where parents and a local authority disagree as to which school a child with special educational needs should go, three questions should be addressed by the authority or, in its shoes, the tribunal:

"(a) Are both schools appropriate to meet the need? A school that is not appropriate cannot be named.

(b) If they are both appropriate, which is the school preferred by the parents? Unless (c) applies that school must be named.

(c) Would naming the school preferred by the parents be incompatible with the provision of efficient instruction and training or the avoidance of unreasonable public expenditure? If so, the school suggested by the local authority must be named."”

The judge said: “In this case, the ETW Panel expressly adopted that three-stage approach - as Mr Friel submitted they were right to do - concluding that (i) the Council accepted that School A and School B were each appropriate to meet X's ALN; (ii) the school of parental preference was School A; and (iii) School A would not fall within the section 9 proviso, i.e. it was not suggested that it was incompatible with the provision of efficient instruction and training, and, whilst School A would involve additional public expenditure, given the parental preference, the additional public expenditure would not be unreasonable.”

“In the light of those findings, the ETW Panel then proceeded to consider section 48.”

The judge continued: “Under the 2018 Act regime, section 48 is clearly key. The 2018 Act scheme requires, under section 48, consideration of whether the two conditions that not only allow but require a school to be named in the IDP have been satisfied, i.e. "(a) the authority is satisfied that the child's interest requires the [ALP] identified in his or her plan to be made at the school, and (b) it is appropriate for the child to be provided with education... at the school...”.

“[…] It is telling that condition (a) is in terms of whether "the authority is satisfied" that the child's interest requires the ALP to be made at an identified school. That formulation clearly allows the authority some latitude in its assessment on that issue.”

The judge found that the ETW Panel were wrong to start their analysis with section 9 as reflected in the three questions posed in IM, and therefore, their approach was wrong in law.

He said: “The focus of the analysis must be section 48, and whether the conditions set out in that section had been satisfied. Whilst Mr Friel denied that it was suggested to the ETW Panel (or that the ETW Panel proceeded on the basis) that Schedule 27 paragraph 3 continued to apply in Wales, the approach the Panel adopted meant that, in substance, they did treat Schedule 27 paragraph 3 as still applying and they asked the same questions as would be asked under the 1996 Act scheme. In that, they erred.”

The judge conlcuded: “In respect of Ground 1, the ETW Panel having made a substantial error of law in its Decision by naming School A in Section 2D of the IDP, I quash that Decision insofar as School A is named in Section 2D of the IDP.  Otherwise, the Decision shall stand.”

He remitted the matter to the ETW for reconsideration and redetermination of the issue, to take place before a differently constituted panel.

Lastly, he acknowledged: “This is the first case to have been brought under the new 2018 Act regime for ALP in Wales. I have considerable sympathy for the ETW Panel, who were the first to grapple with the challenges of the new scheme. 

“The case illustrates the need, when dealing with legislation of the Senedd, to avoid assumptions that the devolved scheme reflects, in any particular way, an earlier scheme found in Westminster legislation. The policy drivers may be different - sometimes, very different - and considerable scrutiny of the words used by the Senedd, without any preconceptions based on what went before, may be required to ascertain the true construction of the legislation and thus the intention of the legislature.”

Lottie Winson