Judge rules Tribunal erred by putting responsibility for part of EHCP on individual who was not lawful delegate or proxy for local authority

The First-Tier Tribunal erred in law by giving responsibility for compiling an ‘all your need to know about’ document concerning a child to a doctor who was not a lawful delegate or proxy for the council, the Upper Tribunal Administrative Appeals Chamber has said.

In DM v Cornwall County Council (SEN) (Special educational needs) [2022] UKUT 230 (AAC) Upper Tribunal Judge Stewart Wright said: “Putting the responsibility for part of section F of the EHCP on one named individual, and where that individual is not a lawful delegate or proxy for the local authority, may carry a serious risk of the local authority being in breach of its duty under section 42(2) of the Children and Families Act 2014 ‘to secure the specified special educational provision for the child or young person’.”

The case arose on appeal from First-Tier Tribunal (Health, Education and Social Care Chamber) and concerned DM who was just under 11 at the time of the tribunal’s decision. He is under the special guardianship of his grandmother, who was the appellant, and it had been agreed by all parties that DM could not be educated in a school.

His grandmother argued that the tribunal acted unlawfully in ordering termly reviews of the provision of ‘education otherwise than in school’ and in agreeing the production of the ‘all you need to know’ document.

She further argued that aspects of the EHCP ordered by the tribunal lacked specificity to such an extent as to be unenforceable, that the tribunal failed to consider the requirement on her to transport DM outside the family home and that it failed to sufficiently specify health care provision in the EHCP.

Judge Wright said the second ground about the ’all you need to know’ document succeeded.

He explained: “The starting point for my analysis of why the tribunal erred in law in ordering the…document to be put together is that on the face of the tribunal’s decision this was an area where the parties could not agree the educational provision in section F of the EHCP.

“In those circumstances, on the appeal it was for the tribunal, standing in the shoes of the council, to determine that aspect of educational provision for the child.”

Instead though the judge found the tribunal had in effect “passed this responsibility to someone else and, importantly, where that someone else was not even an employee of the [council]”.

It did this by passing responsibility for the document to a doctor who has in any event since retired.

“I was informed by both parties during the hearing that [the doctor] had never been able draw up about the…document and has now retired,” Judge Wright said.

“The effect of this is that what was seen by the tribunal as an important aspect of the special educational provision it considered that the child needed is not part, and cannot be part, of that provision as the sole actor identified by the tribunal who was to coordinate and compile that provision was not, and is no longer, able to do so.”

The judge said he could not see - as Cornwall argued - how the provision for review of existing EHCPs in section 44 of the Children and Families Act 2014, “can assist so as to make lawful that which is unlawful in an EHCP”.

Judge Wright refused Cornwall’s request that he should set the tribunal’s decision aside but remake it without the doctor’s name.

“There are two fundamental difficulties with this submission,” he said. “First, given the importance the tribunal attached to [the doctor’s] role, I am not clear what role that document should, or should not, have in section F; and I heard no argument on this.

“Second, and more fundamentally, on setting aside the tribunal’s decision the whole of the appeal would need to be redecided and that would need to be on the basis of the child's needs and the special educational provision he requires now, in 2022, rather than redeciding what the tribunal ought to have decided in September 2021:”

He said the grandmother also succeeded on the basis that the special education provision made in EHCP by reference to the ‘all about’ document lacked specificity.

“Even if [the doctor] had not been named as the author of that document…the tribunal, as the arbiter of that dispute, had to say more about how it intended that document was to be compiled and what it should contain.”

He rejected though the ground that termly reviews meant a reassessment each term of whether DM should be at school or not.

“The phrase ‘subject to termly review’ is plainly intended to refer to termly reviews of the provision while the child is being educated otherwise than in school and does not encompass termly reviews of whether the education should continue to be otherwise than in school,” Judge Wright said.

He dismissed the ground about transport as this had not been raised at the tribunal.

Mark Smulian