London borough fails in Upper Tribunal appeal over Education, Health and Care Plan

The London Borough of Camden has lost an appeal against the First-tier Tribunal's conclusion that it would be inappropriate for a teenage boy’s special educational provision to be made in a school.

In London Borough of Camden v KT [2023] UKUT 225 (AAC), Upper Tribunal Judge Jacobs concluded the decision of the First-tier Tribunal “did not involve the making of an error on a point of law”.

The appeal concerned the Education, Health and Care Plan (EHCP) authorised by the First-tier Tribunal for a boy, P, with autism, attention deficit hyperactivity disorder and dyslexia.

P was born in 2008 and has had an EHCP since 2019. KT is P’s mother.

Aileen McColgan KC on behalf of the London Borough of Camden argued that the First-tier Tribunal misunderstood the argument put by the local authority’s specialist solicitor, leading it to fail to complete one section of the EHCP, and to make special educational provision for P that “lacked sufficient detail, could not be ensured or enforced, and in one instance was not fit for purpose”.

Judge Jacobs added: “Finally, it is (I believe) argued that the tribunal had no power to order education other than at school (EOTAS) at all, or certainly not without the consent of the local authority.”

The London Borough of Camden submitted five grounds of appeal:

• The FTT erred in law by failing to consider the suitability of CCfL [the Camden Centre for Learning] (Ground 1)
• The FtT erred in law by describing a school in Section F, having found that it was not appropriate to do so in respect of Section I, and by seeking to amend the decision by removing references to the type of school described in Section F on the basis that this was a clerical error. (Grounds 2 & 3)
• The FTT failed to give any reasons why it ordered the specified dyslexia provision in Section F despite the objections from the Local Authority. (Ground 4)
• The FTT erred in law by ordering provision in Section F that was neither special educational needs provision nor was enforceable or deliverable provision and failed to give reasons why it did not accept the [local authority’s] objections in relation to each of them. (Ground 5)

Turning to Ground 1, the judge noted that the essence of the council’s argument was that the First-tier Tribunal misunderstood the local authority’s submission to the tribunal. “It is accepted that the local authority’s solicitor used the acronym EOTAS [education other than at school]”, he said.

Counsel for Camden argued that EOTAS was an imprecise expression. The authority’s solicitor had used it in a context that showed the authority did not accept that there would be no involvement from a school, specifically CCfL. Accordingly, the tribunal should have named CCfL in section I.

On this, the judge said: “I do not accept that EOTAS is a vague expression. I have only ever heard it used as a reference to a case in which section 61 applies. It was used by a specialist solicitor to a special tribunal, which was entitled to take him at his word.”

Section 61 of the Children and Families Act 2014 provides:

(1) A local authority in England may arrange for any special educational provision that it has decided is necessary for a child or young person for whom it is responsible to be made otherwise than in a school or post-16 institution or a place at which relevant early years education is provided.

(2) An authority may do so only if satisfied that it would be inappropriate for the provision to be made in a school or post-16 institution or at such a place.

(3) Before doing so, the authority must consult the child's parent or the young person.

The judge noted that he was “reluctant to criticise” the tribunal for taking a specialist solicitor at his word when he referred to EOTAS.

He added: “I have, though, to accept Ms McColgan’s argument that the local authority’s written closing submission made clear that the authority did not accept that education at home, or at least exclusively at home, was appropriate.

“Nevertheless, the tribunal did not make an error of law. It may have misunderstood that the issue was agreed, but it did not simply proceed on that basis. It made its own assessment and came to its independent conclusion that it would be inappropriate for P’s special educational provision to be made in a school.”

In support of her argument that section 61 did not apply and CCfL should have been named in Section I, counsel for Camden referred the judge to parts of Section F, ordered by the First-tier Tribunal, which she argued could “only be provided in a school”.

She referred the judge to three entries. One referred to P requiring ‘highly structured, clear and predictable routines and boundaries and explicit instructions.’ The second referred to him requiring ‘multi-sensory teaching methods to be employed as often as possible, capitalising on visual methods’. On this, Judge Jacobs said: “I see no reason why either of those refers to provision in a school. Both are equally applicable regardless of context.”

Counsel for Camden lastly referred the judge to techniques that must be used by ‘Staff working with’ P ‘both within a group and individually’. Judge Jacobs noted that this was “the strongest” of Ms McColgan’s points.

However, he added: “Leaving aside the words I have quoted, the techniques mentioned are equally applicable outside a school. A few infelicitous words in over five pages of provisions in Section F is not sufficient to make her argument good in the context of consistent statements that the tribunal was relying on section 61.”

Turning to Grounds 2 and 3, the judge confirmed that Section F of the Working Document contained a reference, proposed by KT, that referred to the type of school that would be suitable when P was ready to return to the classroom.

He said: “When the local authority applied to the First-tier Tribunal for permission to appeal, Judge Tudur refused permission to appeal, but ordered that that passage be removed. She purported to act under rule 44 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008”.

Explaining her decision, Judge Tudur said: “[…] the reference to the future proposed placement should have been removed by the tribunal before the final decision was issued. Applying rule 44, the omission was a clerical error which can be corrected and the description of the proposed placement has now been removed and the decision reissued”.

The Upper Tribunal judge noted that Rule 44 “only applies to bring a decision into line with what the tribunal decided” and that it does not permit a chance to bring a decision into line with what a tribunal should have decided.

He added: “The removal of the passage was not authorised by rule 44.”

Judge Jacobs decided, however, that he would not set the decision aside on this ground due to the fact that the judge could have achieved the same result under the review power in section 9 of the Tribunals, Courts and Enforcement Act 2007.

He said: “Those provisions would have allowed the judge to review the decision, set it aside and re-decide the matter with the offending passage removed. The procedure would have taken more time, but the result would have been the same. To put it in a different way, the mistake was not material.”

Turning to ground 4, ‘The FTT failed to give any reasons why it ordered the specified dyslexia provision in Section F despite the objections from the Local Authority’, the judge said that counsel for Camden accepted at the hearing that this was a reasons challenge, not a challenge to the finding that P had dyslexia.

He rejected the ground of appeal, noting that although the tribunal did not deal with the local authority’s criticisms, this was “not necessary”. He concluded: “The tribunal had to explain why it made its decision and that is what it did.”

Turning to ground 5, Judge Jacobs noted that there were three aspects to the submission.

He said: “First, there were some provisions that were not sufficiently specific. Second, there was an overarching argument that the provisions were unworkable. Third, there was an argument that I find difficult to summarise, because Ms McColgan changed the way she expressed it in response to my questions. The best I can do is quote from her skeleton:

… The home may be the venue in which some EOTAS is delivered by agreement with parents. This cannot, however, be ordered by an FtT which has no power to impose obligations on parents via an EHC Plan. Nor can a local authority require that parents provide access to the home (real or virtual) for the purposes of delivering EOTAS provision. …”

On this, he said: “As presented, this argument would be determinative of the appeal and of fundamental importance as a limitation on the jurisdiction of the First-tier Tribunal.”

Discussing the argument, he said: “The starting point is with P’s special educational needs. Section 20(1) provides that he has such needs if he ‘has a learning difficulty or disability which calls for special educational provision’. Section 21(1) provides that special educational provision means ‘educational or training provision that is additional to, or different from, that made generally for others of the same age in mainstream schools in England’.”

“P satisfies those conditions. (a) The tribunal found that he has a disability: autism, attention deficit hyperactivity disorder, and dyslexia. The local authority has not challenged those findings, including the finding of dyslexia. (b) The tribunal found that this disability called for a range of provision. This provision included that it be delivered for the time being outside a school. That finding was based on and supported by the evidence of Dr Kelly and by P’s experience at five different schools. In order for P’s education to be effective, it had to be delivered at his home, at least for the time being. (c) By definition, a provision for a child’s education to be delivered outside a school is different from provision generally available in schools.”

He added: “In conclusion, on the evidence in this case, I see no objection in principle to EOTAS being included in Section F. If Ms McColgan was arguing that EOTAS can never have any place in Section F, as I thought she was at one point, I reject it.”

Counsel for Camden further argued that neither a local authority nor the First-tier Tribunal could impose on a parent the responsibility of making alternative education arrangements.

The judge accepted this. However, he added: “The local authority did not impose EOTAS on KT, nor did the First-tier Tribunal. It was KT who argued for the provision and the tribunal accepted her argument. She could, of course, refuse to provide the provision. I cannot think of reason why she might do that, but if she were to do so, the plan would have to be revised and different provision ordered.”

Finally, the Upper Tribunal judge noted that Ms McColgan “relied on the language of section 42(2) to criticise some provisions in Section F on the ground that they were not enforceable or that the local authority could not ensure delivery.”

One example she provided was that the tribunal approved a provision that ‘Noise levels must be kept to a minimum where possible and practicable’. Counsel for Camden argued that that could not be enforced and therefore not secured.

Judge Jacobs rejected the argument, noting: “The issue in this case is not whether the local authority can secure the provision. There is a prior issue, which is whether KT has made suitable alternative arrangements.”

Concluding the appeal, Judge Jacobs said: “Having presented her criticisms of specific provisions, Ms McColgan made an overarching argument that the contents of Section F were unworkable.

“In so far as this merely repeated her specific criticisms, I have already dealt with them. In so far as she intended to make an additional point, it is unparticularised and too general to deal with, so I reject it.”

The council’s appeal was dismissed.

Lottie Winson