Judge finds First-Tier Tribunal ruling did not “cause or require or even permit” council to remove child from roll of special school [clarification]

Upper Tribunal Judge Stout rejected the council’s submission that D was not excluded but that they were removed from the roll as a consequence of the FTT decision.

However, Judge Stout refused permission for the parents to appeal that the First-tier Tribunal had failed sufficiently to safeguard their child’s rights.

She said neither the First-tier Tribunal or the Upper Tribunal on appeal have any powers of enforcement, finding that the FTT was entitled to proceed on the basis that the local authority would comply with its statutory duties.

The background to the case was that the appellants’ child (D) attended X School, a special school. However, following a breakdown in relations between the appellants and X School, the appellants appealed to the First-tier Tribunal seeking to have Y School named.

D continued attending X School in the meantime. Later, the First-tier Tribunal found Y School to be unsuitable.

Neither party invited the Tribunal at the hearing to consider another school, although they were in the process of identifying alternatives. The FTT accordingly named ‘special school’ as a type in Section I.

The local authority subsequently unilaterally consented to D being removed from the roll of X School, so that they ceased to be registered as a pupil there. The appellants were not asked whether they consented to that course.

The parents felt that D had been unlawfully excluded effectively because of the breakdown in the relationship between them and X School, when in fact there was no reason why D could not continue attending. They were also unhappy with the school(s) proposed by the local authority and had not identified an alternative they were happy with themselves.

The local authority subsequently notified the parents that a final EHC Plan would name “Z School” and this was then issued.

The appellants told Upper Tribunal judge Stout that they did not want D to attend Z School as the journey was too difficult/long.

The judge noted: “As it emerged at the hearing before me, the appellants’ preference is now for D to return to X School.”

The appellants sought permission to appeal on the basis that the FTT had failed sufficiently to safeguard D’s rights to prevent them being ‘off-rolled’ without the appellants’ consent. They also invited the Upper Tribunal judge to suspend the decision of the First-tier Tribunal pending the appeal.

The appellants submitted the following grounds of appeal:

1. The First-tier Tribunal erred in failing to ensure compliance with section 42 of the Children and Families Act 2014 and/or that the First-tier Tribunal failed to ensure that the local authority safeguarded D’s rights during transitions.
2. The First-tier Tribunal erred in law by failing to ensure that D was not ‘off-rolled’ contrary to regulation 8(2) of The Education (Pupil Registration) (England) Regulations 2006 (which requires a special school not to remove a pupil from roll without the consent of the local authority) and/or that the Tribunal’s decision wrongly enabled D to be removed from the school roll without parents’ consent.

Considering whether to grant permission to appeal, Upper Tribunal Judge Stout said: “The First-tier Tribunal’s jurisdiction on an appeal under section 51 of the Children and Families Act 2014 (CFA 2014) is limited to considering the matters set out in that section, which are all specific decisions that have to be taken by local authorities in relation to children with EHC Plans. Its powers on such an appeal are laid down in regulation 43 of The Special Educational Needs and Disability Regulations 2014 (2014 Regulations).

“The First-tier Tribunal has no jurisdiction over what happens once an appeal is determined. It has no powers of enforcement. Alleged failures by a local authority in implementing an EHC Plan or a First-tier Tribunal decision must be taken to the Local Government and Social Care Ombudsman or the High Court on judicial review. The First-tier Tribunal has no jurisdiction in relation to the local authority’s duty under section 42 of the CFA 2014 to secure special educational provision in accordance with the EHC Plan.”

Judge Stout said the First-tier Tribunal can also only be expected to consider the case on the basis of the evidence as it is before it on the day of the hearing.

“A Tribunal does not ordinarily err in law by failing to consider evidence or arguments that were not before it. Changes of circumstances subsequent to a hearing may form an appropriate basis for seeking a review of the First-tier Tribunal’s decision under rule 48(2) of The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008. In this case, it is apparent that there is a change of circumstances because D has been removed from roll at X School, but the appellants now (apparently unconditionally) want D to attend X School. That opens the possibility of a review under rule 48(2). An extension of time would be required if such an application were to be made now, but that may yet be an avenue that the appellants will wish to explore.”

Judge Stout said that so far as an appeal to the Upper Tribunal is concerned, the focus must be on whether the First-tier Tribunal erred in law on the basis of the position as it stood at the time of the hearing.

She said: “The position at that time was that the appellants only wanted X School named on the conditional basis that it was subject to “a robust review … and thereafter changes to ensure a harmonious community with full inclusion of [D] and others”. The First-tier Tribunal rightly pointed out that it could not name a school on that basis as it has no power in the context of an appeal under section 51 of the CFA 2014 to make any such direction. The appellants had proposed Y School for consideration at the hearing, the parties were both in the process of looking for other alternative schools and the appellants had another specific school they wished to consider further following the hearing.

“In those circumstances, it seems to me that it was not arguably unlawful for the Tribunal to name ‘a special school’ as a type once it had concluded that Z School was inappropriate. Section 39(5) of the CFA 2014 permits the Tribunal to name a type of school where parental preference for a particular school has been rejected under section 39(4). This was in my judgment a course that was reasonably open to the First-tier Tribunal in this case as neither party had put forward any other option for consideration at the hearing.”

Upper Tribunal Judge Stout said: “The appellants’ case on this appeal is in substance that the Tribunal should have left X School named in Section I. However, at the time of the hearing, neither party was asking the Tribunal to leave X School named in Section I, otherwise than on the ‘conditional basis’ that the appellants had been arguing for at the start of the hearing, but had then abandoned.

“The reason why neither party was contending that X School should remain named in Section I was not because either party considered it to be per se unsuitable, but on the basis that it was no longer the school of (unconditional) parental preference and because of the difficult relations between the appellants and the school. The local authority has suggested that relationships between the appellants and X School meant that X School had become unsuitable, but that was not the case they invited the Tribunal to determine at the hearing.”

She continued: “Further, although there are cases where a breakdown between parents and school might lead to a conclusion that a school is ‘unsuitable’, the Upper Tribunal (Judge Ward) in Richmond upon Thames LBC v AC [2017] observed that great caution should be used before that conclusion was reached.

“In this case, neither party argued before the Tribunal that X School was unsuitable and the Tribunal made no determination to that effect. D remained ‘on roll’ at the school and attending daily at the time of the Tribunal hearing.”

The Upper Tribunal judge noted that the fact that both parties were seeking alternative schools, was an “important reason” why it was necessary for the Tribunal to leave Section I as naming a ‘type’ of school. “Naming X School in Section I at that point would have made it difficult for the appellants to pursue the other school they were then interested in as the appeal would have been determined on the basis that D should continue attending X School.” 

She said: “The only possible alternative to naming a type of school, it seems to me, would have been for the First-tier Tribunal to issue a ‘provisional decision’ on the suitability of Y School and then give directions for an adjournment and further hearing to determine Section I at a later date. Neither party contended for that outcome before the First-tier Tribunal and neither has suggested before me that the Tribunal should have adopted that course of its own motion.

“For the avoidance of doubt, I do not consider that the First-tier Tribunal arguably erred in law in not expressly considering that option of its own motion given the circumstances. It is not the role of the Tribunal to ‘supervise’ the parties in their search for an appropriate school. The Tribunal’s role is to determine the appeal before it. The Tribunal in this case did that and did not arguably err in law in doing so.”

Judge Stout said that so far as the Tribunal’s decision was concerned, that “really is the end of the matter because nothing the local authority did following the decision could render the decision unlawful at the time it was taken”.

However, she added that given that both parties argued (in different ways) that what the local authority did following the hearing was a consequence of the First-tier Tribunal’s decision, she needed to explain why that was not the case.

The judge said: “The naming of ‘a special school’ in Section I of D’s EHC Plan left the parties free to reach agreement as to school placement, or for the usual statutory processes to be followed for parents to request a particular school be named and the local authority to consider that request in accordance with the statutory framework, with any consequential amendment to the EHC Plan triggering a further right of appeal for parents.

“As X School is a special school, it also meant that it was open to the local authority to comply with its obligation under section 42 of the CFA 2014 by maintaining D’s place at X School or by identifying an alternative special school for D, taking account of any parental preferences, through the statutory framework. The framework of course includes the obligation on the local authority under sections 38 and 39 of the CFA 2014 to consult with parents and consider their preferences before changing the school named in Section I.”

Judge Stout noted that by section 61 of the CFA 2014 a local authority is only permitted to arrange special educational provision otherwise than in a school if it is satisfied that it would be inappropriate for provision to be made in a school, and before doing so the authority must consult the child’s parent.

“If the local authority considered that, as a result of the breakdown in relations between the appellants and X School, it was ‘appropriate’ for provision to be made for D otherwise than in a school for a period, it was therefore obliged to consult the appellants before taking action to provide education in that way,” she said.

Judge Stout added that notwithstanding that regulation 8(2) of the 2006 Regulations in principle permits a local authority to consent to the removal of a pupil from the roll of a special school, there were thus statutory obligations on the local authority to consult parents before naming a new school in Section I or deciding that D’s educational provision had to be made otherwise than at school for a period through section 61 CFA 2014 (reinforced by the duty in section 19 of the Education Act 1996).

The judge said: “The only practical legal effect of the Tribunal’s decision to name a type of school in Section I rather than leave X School named was that X School ceased to be under a ‘duty to admit’ D under regulation 43 of the 2014 Regulations. However, D had already been admitted to the school, and it does not follow from a school no longer being under a duty to admit that they are permitted to exclude a child otherwise than in accordance with the proper procedures, and for the proper reasons.”

The local authority’s position in the case was that D was not excluded, but that they were removed from the roll “as a consequence of the First-tier Tribunal’s decision (and/or perhaps because the local authority believed that the appellants no longer wanted him to continue at X School)”.

However, Judge Stout rejected this argument, noting that the Tribunal was “not responsible for the subsequent actions of the local authority, which were not directed, caused or permitted by anything the Tribunal had done or not done”.

She said: “The Tribunal at the end of its decision added a plea to the local authority to comply with its legal obligations. The Tribunal’s (wholly reasonable) expectation was that the local authority would adhere to the statutory framework set out above and the Tribunal did not arguably err in law in proceeding on that basis.”

In her conclusion Upper Tribunal Judge Stout found no arguable error of law in the decision of the First-tier Tribunal and refused permission to appeal.

She concluded: “It follows that the application to suspend the effect of the First-tier Tribunal’s decision must also be refused because under rule 5(3)(m) of the Upper Tribunal rules, I cannot suspend the decision if I am refusing permission to appeal.”

[1] This is a revised version to clarify a story, originally published on 12 August, on this judgment. It contains a new headline and additional information on Judge Stout’s decision on the effect of the FTT ruling and her explanation of the statutory duties involved.