Keywords: Children, EHC plans, Necessity, Interpretation of guidance

The council, Hertfordshire CC, appealed to the Upper Tribunal a decision of the first tier SEND tribunal to require it to issue an Education, Health and Care Plan in respect of Mr. and Mrs. C’s son, J.

J, an 8 year old boy, had an Autistic Spectrum Disorder and was described as ‘high functioning’. His academic attainment was not significantly below average. However his serious behavioural problems had led to his being withdrawn from the independent school he was attending (‘R School’) as he was facing expulsion.

Hertfordshire carried out an assessment under s.36 Children and Families Act but concluded that it was not necessary to issue an EHC plan for J. Following a full appeal hearing and the submission of expert evidence on both sides, the First Tier tribunal had concluded that J did meet the threshold for an EHC plan under the Children and Families Act 2014. The FTT had overturned the decision of the local authority and required them to issue an EHC.

There were 3 grounds of appeal by the Council:

(1) That the original tribunal had not found facts to establish that J actually had special educational needs

The Upper Tribunal declined to consider the issue of whether J had a learning difficulty within the meaning of section 20 of the Children and Families Act 2014 on the grounds that this had not been a live issue before the original tribunal. In fact the local authority had made an express statement in their submission in response to the appeal that they did “not dispute that J has special educational needs”. So this was a hopeless ground for any appeal by the council.

(2) That the original tribunal had failed to provide adequate reasons for its decision

The second ground of appeal was dismissed on the grounds that the original tribunal was not required to set out in its judgement a detailed basis for every element of its decision. The Upper Tribunal quoted the words of Sir Thomas Bingham MR in Meek v Birmingham City Council [1987] IRLR 250 that a tribunal judgment:

“is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal’s basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the… [tribunal] or, on further appeal, this court to see whether any question of law arises .”

Essentially the decision must be looked at in its entirety. The reasons given needed to be sufficient to adequately explain why the parties had won or lost on the basis of the issues which were live and the extent to which the evidence was disputed in a particular case:

“the decision under scrutiny must be looked at as a whole. In the course of a complex decision, a Tribunal may be dealing with many hundreds of pages of written evidence and extensive oral evidence. It is not expected to deal with everything, but it must address the legal issues relevant to the decision and resolve the significant evidential disputes. The Tribunal may make legal errors along the way, but if these do not detract from the overall sense of the decision they should not result in a decision being set aside.”

(3) That the original tribunal failed to find that the support required by J went beyond that available in a mainstream school and therefore (the council asserted on appeal) special educational provision was not able to be seen as ‘necessary’.

The Upper Tribunal considered how a local authority should approach the task of determining whether it was “necessary” for special educational provision to be made for a child in accordance with an education, health and care plan pursuant to the Children and Families Act 2014 s.37.

In arguing that the FTT had erred in deciding that it was “necessary” to issue an EHCP in this case, the local authority focussed on para 9.55 of the SEND Code of Practice and the prior case law (under the similarly worded Education Act 1996), particularly Manchester CC v DW [2014] UKUT 168 (AAC)). They argued that the proper test is to compare the provision required to meet the child’s SEN with the provision that could reasonably be made for the child from the resources normally available in a mainstream school, contending that the original tribunal had failed to apply the law correctly in hearing the appeal against its decision not to issue an EHCP.

The Upper Tribunal began by summarising the steps set out in paras. 9.54 and 9.55 of the Code of Practice. These steps essentially amounted to considering, firstly, whether the assessment indicated a higher level of need than had previously been thought and, secondly, even if the needs themselves were not higher, whether the child was making progress/sufficient progress with the level of provision which can be made from within normal mainstream resources.

However, the upper tribunal went on to stress that the second point is “no more than a restatement of the question ‘is an EHC Plan necessary’.” and to point out that:

“Where there is a difference between the law as set out in statutes, regulations and case law, and the Code, the Tribunal must follow the law.”

(a comment that should be noted by councils who focus overly on the Care Act guidance whilst disregarding the Act itself and the regulations made under it, we would comment….).

Consequently the wording of the Code of Practice should not be used as a strait jacket unduly to constrain the effect of the underlying statutory provision. Section 37 C&F Act is drafted in very general terms “Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made…”. As a result, the upper tribunal concluded that the definition of ‘necessary’ established by case law on the Education Act 1996, was that of its common usage and that therefore its meaning in any particular case would involve a value judgement. Ultimately the UT declined to set out a particular test for necessity, taking the view that necessity is something to be deduced on the specific facts of each case, not set out in a general definition:

“In my view, what is ‘necessary’ is a matter to be deduced rather than defined. Its determination will vary according to the circumstances of a particular case and may well involve a considerable degree of judgment.”  [para. 36]

[This judgement should be read in conjunction with the judgement in Buckinghamshire CC v SJ [2016] UKUT 0254 (AAC) as the two cases deal with individual children who could be said to be at the opposite ends of the scale in terms of attainment and, crucially, “progress” (SEND CoP 9.55). That judgement essentially defines “necessary” in relation to the issues in that case in terms of whether the young person could still benefit from educational provision. Both judgements are entirely in accord that Special Educational Provision is not limited to the merely academic but that special educational provision must be defined much more broadly in line with the learning needs (as assessed in any particular case) of a child in their progress towards adulthood.]

Given this view of what constitutes “necessary”, the UT concluded that, in the absence of a manifest error (following Secretary of State for the Home Department v AH (Sudan) and Others [2008] 1 AC 678), the Upper Tribunal should respect the decision of the FTT that the facts in this specific case did meet the threshold of ‘necessary’.

The Upper Tribunal therefore dismissed the appeal.


Note regarding the role and jurisdiction of the Upper Tribunal: The UT has taken on what was previously the High Court’s role of hearing appeals from education decisions in the First Tier Tribunal. The UT is a unique judicial body, designated as “a superior court of record” by s.3(5) Tribunals, Courts and Enforcement Act 2007 and predominantly headed by High Court judges. Permission (either from the FTT or the UT itself) is required to appeal and, unlike appeals of LA decisions to the FTT (which are full appeals allowing additional evidence and a full rehearing of the case), grounds of appeal are limited to points of law (s.11 Tribunals, Courts and Enforcement Act 2007). The UT itself has some judicial review jurisdiction (s.15 Tribunals, Courts and Enforcement Act 2007) in addition to its appeal jurisdiction, but is itself subject to judicial review  in the High Court on important points of principle or practice (R (Cart) v. Upper Tribunal [2011] UKSC 28), in addition to the further right of appeal (with permission) to the Court of Appeal on points of law (s.13 Tribunals, Courts and Enforcement Act 2007).

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