CCLC successful for two young people with SEN in Upper Tribunal appeals
Kate Harvey, Head of Education Law, has acted successfully for two young people in two Upper Tribunal (UT) decisions handed down recently.
The background of the case was:
- EH was issued with a Statement of Special Educational Needs in July 2014, whilst she was still attending compulsory education. The reason for issue of the Statement of Special Educational Needs was "because of high anxiety levels".
- In or around March 2015, the Local Authority commenced a transfer review in order to consider whether or not EH should make the move from Statement of SEN to Education, Health and Care Plan (EHCP).
- During the transfer review process, the LA secured advice as it is required to do by the Special Educational Needs and Disability Regulations 2014. That advice largely indicated that EH had significant difficulties relating to anxiety, specifically education related anxiety. The vast bulk of the evidence that the LA secured indicated that EH had little idea in terms of what education she wished to pursue after she turned 18.
- Within the information gathered by the Local Authority, one piece of advice, dated 3 June 2015, concluded that EH "has considered applying for an Open University course [although] communicating with course providers through email could be difficult for her…"
- Five days later, EH was assessed by an independent Psychologist who concluded that she "wants to continue with her A-level studies". The independent Psychologist further concluded that "her mental health and ability to cope in social situations has decreased considerably".
- Gloucestershire County Council considered the matter at the close of the transfer review process and concluded that the young person should not be issued with an Education, Health and Care Plan. It seems that the primary reason given was that Gloucestershire County Council had concluded that EH wanted to engage in higher education. Gloucestershire County Council took the view that it was unable to publish an Education, Health and Care Plan because the young person wanted to pursue higher education.
- EH appealed to the First-Tier Tribunal (FTT) and the FTT ordered that the LA should issue an EHCP for EH
The LA appealed and relied on the following grounds:
- The FTT erred in law by determining that an EHC Plan was necessary when it had received limited details about the education EH wished to pursue;
- The FTT erred in law by failing to identify the special educational provision that was required by EH and which could not be provided from within the resources available to an education setting;
- It was irrational for the FTT to suggest that the local authority failed to outline how EH’s needs would be met on a further education course when the information had not been provided by EH;
- The FTT erred in reaching a conclusion that an EHC Plan was necessary given EH is a pupil over compulsory school age and there is no continuing duty on the local authority to provide EH with education.
The UT dismissed the LA’s appeal and found that:
- That the FTT has to look at the reality of the situation rather than, as the LA pushed for, consider a hypothetical situation
- There is, in fact, a clear statutory duty to provide education for young people over compulsory school age further to the content of the Children and Families Act 2014. The UT stated "that the argument that Council's have no duty… is to misunderstand the purpose of the Children and Families Act".
- It is not for the Appellant in an appeal to the FTT to establish exactly what educational package they are seeking. Rather, it is for the LA to establish that any educational provision that they may required can be delivered without an EHCP
CCLC have found that LA’s expect young people and parents to set out the exact education they require when appealing against a refusal to issue an EHCP. This judgment clearly sets out that a person appealing to the FTT does not have to specify exactly what provision they need which requires an EHCP. Further, the FTT does not have to outline the special educational provision that is required in order to access an EHCP.
The judgement also confirms LA's continuing duties to young people over compulsory school age. The decision does not fit well with the Department for Education's new guidance in relation to the entitlement for special educational provision for post-16 year olds. The conflict between the guidance and UT decisions is unfortunately unlikely to be resolved without further litigation.
The background of the case was:
- R was 17 years old when his disputed EHCP was issued
- R was due to sit his GCSE's three months after his EHCP was issued and this placed uncertainly on his future education as his options would be influenced by his results
- R achieved a E grade in his GCSE English
- R wanted to attend B School, a specialist dyslexia school. The LA opposed this and stated that a mainstream college could meet R's needs
- R wanted to study a Level 3 Business Course. B school did not think R would be able to cope with a Level 3 Business Studies course and he was not offered a place to pursue that course. The school normally required at least a C Grade in GCSE English for admission to its Level 3 Sports course but, in R’s case, was willing to waive that requirement. This was because its sports teacher was of the view that his written work was of a sufficient standard and displayed greater ability than was suggested by his predicted GCSE grade.
- The FTT dismissed the appeal on the grounds that the Level 3 Sports Course, one of the courses R had chosen to study at B school, was unsuitable for R and concluded that R should attend a 6th Form College to study a Level 2 Sports Course and re-take his Level 2 (GCSE) English. It did not order any amendments to R's EHCP
R's parents applied for permission to appeal. Permission was granted by the UT on the following grounds:
- The FTT may have erred by failing to have regard to R’s views, wishes and feelings (section 19 of the 2014 Act)
- Whether the FTT in law in finding that B school was not appropriate
- The FTT decision did not identify the outcomes within R’s EHC plan when analysing the contender placements.
- That the FTT failed to order amendments to R's EHCP
- How the 2014 Act operates in cases where a parent / young person prefers an independent school
The appeal was upheld. The key findings in this appeal were:
- Section 19 obligations apply to the FTT. They are obligations which apply to and are designed for the benefit of children and young people. The FTT does not need to expressly state it has acted in accordance with section 19 but it will "act in accordance with the overriding objective and, if it does, will be acting in the spirit of section 19."
- The UT confirmed that the Outcomes in Section E could not be appealed but the FTT is not "placed in the jurisdictional strait-jacket" by this. Regulation 43(2)(f) of the Special Educational Needs and Disability Regulations 2014 allows the FTT to order any 'consequential amendments' to the EHCP. The UT held that "It would be absurd if a Tribunal, having allowed an appeal and re-cast the specified special educational provision in an EHC plan, or the specified special educational needs, was unable to alter outcomes that no longer related to the provision or needs determined by the Tribunal. That is surely why regulation 43(2)(f) confers power on the Tribunal to make “any other consequential amendments” to the EHC plan as it thinks fit. This power allows the Tribunal to modify the outcomes section of an EHC plan to fit with any amendments it has ordered to an EHC plan. The EHC plan should not be left with outcomes that are pointless and confusing artefacts."
- The UT found that the FTT had erred in law by failing to consider whether its decision called for it to order amendments to R’s EHC plan to make it workable and up-to-date.
The inability to appeal against the Outcomes in Section E has been a concern of many parents and young people CCLC have acted for. Whilst this case does not change that position, it has opened the door and confirms the FTT can order amendments to Section E when it is considering an appeal against Sections B and F of an EHCP. The decision also confirms that the FTT's analysis of the suitability of placements "may highlight a need to alter the special educational provision specified in the plan."