A case concerning the legal test for issuing a child with an EHCP
Last week saw the Court of Appeal hand down its decision in Nottinghamshire v SF and GD  EWCA Civ 226 – a case concerning the legal test for issuing a child or young person with an Education, Health and Care Plan (“EHCP”).
It is important to set out that the test for issuing an EHCP is set out in section 37(1) of the Children and Families Act 2014:
“Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a child or young person in accordance with an EHC plan the local authority must secure that an EHC plan is prepared for the child or young person …”
“Special educational provision” is defined under section 21 to mean:
“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,
- maintained nursery schools in England,
- mainstream post-16 institutions in England, or
- places in England at which relevant early years education is provided.”
This appeal began in the First-tier Tribunal when the parents appealed against Nottinghamshire City Council’s decision not to issue their child with an Education, Health and Care Plan (“EHCP”).
It was acknowledged by both parties that the child received between 14.5 and 17 hours of individual or small group support each week. He attended a maintained, mainstream primary school and the school was satisfied that it could meet the child’s needs from its own resources. The FTT found that the child was making progress with this provision in place and did not require “additional provision over and above what he is currently receiving”. Despite this progress, the FTT noted that the child had recently been demonstrating anxiety in school and that the existing provision would, therefore, have to be adapted in the future.
The FTT decided that, despite the fact the school was meeting the child’s needs and he was making progress, the provision made by the school would have to be adapted in the future and this would represent more provision than would normally be made for pupils in other mainstream schools elsewhere in England. It noted that the FTT had more expertise that Nottinghamshire in knowing what provision was available nationally.
The FTT upheld the parents’ appeal and determined that it was necessary for Nottinghamshire to issue the child with an EHCP.
The Upper Tribunal’s Decision
Nottinghamshire appealed to the Upper Tribunal. It argued that because the FTT had found that the child’s needs were being met and he was making progress, then there was no requirement for the FTT to consider what further provision may be needed. Nottinghamshire said that the FTT’s decision went against the SEND Code of Practice which provides that "a local authority should only consider what further provision may be needed" if "despite appropriate assessment and provision, the child or young person is not progressing, or not progressing sufficiently well".
The Upper Tribunal disagreed with Nottinghamshire and dismissed the appeal. It said that the FTT was entitled to find that the provision being made for the child was in excess of the provision that would be made generally in mainstream schools in England. On this basis it was “necessary” for the child to be issued with an EHCP. The Upper Tribunal confirmed that the Code of Practice was only guidance and as the Tribunal had regard to it there was no error of law.
The Court of Appeal’s Decision
Nottinghamshire plainly held a strong view that it had been wronged and it appealed further to the Court of Appeal. Its argument was pretty similar to that which it made before the Upper Tribunal – it argued that, if the child was making progress with the provision made within a mainstream school, it could not be considered necessary to make provision in an EHCP.
The Court of Appeal dismissed the appeal. It found that the correct approach had been used and that, based on the specific facts if this case it was entitled to find that it was “necessary” for the child to be issued with an EHCP.
It’s understood that Nottinghamshire has sought leave to appeal to the Supreme Court.
So what happens now?
The Court of Appeal decision doesn’t tell us much more than we already knew and, in many senses, it raises more questions than answers. For example, how are local authorities expected to know whether the provision being made is normally available across England? Does it mean that 14.5 - 17 hours of weekly individual and small group support is considered to be in excess of that which is ‘normally available’ nationally? If so, what is considered to be ‘normally available’?
At this juncture, no-one knows and it seems that the only way of resolving this is by the evolution of case law in this area.
If you would like more information on this update or assistance with any related matters, please contact Laura Thompson, or give us a call on 0345 070 6000.
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