Special Educational Needs & Disability Update
The Special Educational Needs and Disability (“SEND”) Tribunal has been busier than ever, “having recorded 8,600 registered SEN appeals from July to September 2021; an increase of 8% when compared to the previous year”.
Here we explore just a few of the most recent decisions of the Upper Tribunal which are helping to shape decision making in the world of SEND.
Maintaining EHCPs after the age of 25
In August last year, the Upper Tribunal (“UT”) in JL (by EA) -v- Somerset County Council  UKUT 324 (AAC), considered whether an Education, Health and Care Plan (“EHCP”) could be maintained by a local authority following a young person attaining the age of 25. In particular, the UT considered the term ‘academic year’ alongside section 46 of the Children and Families Act 2014 (“the CFA”).
This case related to J, a ‘young person’ who ceased to be a ‘young person’ at age 25 in accordance with Section 83(2) of the CFA. J was accessing ‘education otherwise than at college’ through an EHCP. At the First-Tier Tribunal (“FTT”) hearing, it was common ground between the parties that this was appropriate. The key issues lay within the content and the extent of such provision. J submitted that his EHCP should be extended as his museum internship (a key provision in J’s EHCP) had not materialised in the way it was intended as a result of the pandemic. The local authority submitted that, whilst it may be possible to continue to maintain an EHCP to enable a young person to complete a qualification that would have otherwise been missed, that was not the case here.
The FTT decided that there was no provision in either the Education Act or the CFA for the EHCP to be extended by the FTT and Section 46 of the CFA makes clear that the “local authority may continue to maintain a plan”. The FTT decided that it had no jurisdiction to order the local authority to extend the EHCP, whatever the circumstances.
J sought to appeal the FTT’s decision. The UT set aside the FTT’s decision; it acknowledged that the FTT lacks the power to make an order compelling a local authority to exercise its power under Section 46. However, Section 46 permits an EHCP to be maintained for longer and how much longer is determined by Regulation 46. The UT agreed that the FTT did not have jurisdiction to order the extension of the EHCP, however, this did not mean Section 46 or Regulation 46 were irrelevant to the provision and the FTT should have considered this.
Costs, Conduct and Procedure in the SEND Tribunal
In NS & RS -v- Kent County Council  UKUT 311 (AAC) the UT dismissed an application for costs brought against a local authority.
This case related to G, a young person aged 21, with complex learning and behavioural needs. At the outset of the appeal before the FTT, G – through their representative – sought a placement at a residential college for 52 weeks per year. The local authority initially put forward a day placement at an alternative provider. During the course of the appeal the local authority agreed to G’s preferred placement, albeit on a 38 week residential basis with alternative care support for the remaining 14 weeks of the year.
The matter was considered by the FTT at a hearing and it ultimately found in favour of G; the FTT determined that his preferred college should be named in Section I on a residential basis for 52 weeks of the year. G made an application for costs on the basis that the local authority had been unreasonable in its defence of the appeal. G submitted that the local authority had been unreasonable by originally naming a placement in G’s EHCP which could not deliver the provision as set out in the EHCP and latterly, that it did not provide any documentary evidence to support its position.
As anyone who is familiar with the SEND Tribunal will know, applications for costs must reach a very high ‘unreasonableness’ threshold. In this case, the UT considered (amongst many other things!) the fact that the only evidence relating to the need for a 52 week placement came from one report, provided by G’s representatives some three weeks before the hearing. The UT dismissed the appeal on the basis that G needed to have demonstrated that the conduct of the local authority was “vexatious and was designed to harass them rather than to advance the resolution of the case”. The UT saw no element of either of those points in the local authority’s conduct. Judge West concluded that “the conduct of the proceedings could no doubt have been handled differently, but it could not be described as unreasonable simply because it led in the event to the result which eventuated or because other more proactive legal representatives would have acted differently”.
Parental placement requests
MS & LS -v- Wakefield County Council  UKUT 0316 (AAC) considered whether the provision currently being provided by a school is relevant when determining whether it can make the provision identified in a child’s EHCP. It also looked at the extent to which expert witnesses can provide evidence outside of their professional remit.
S, a boy aged 11, held an EHCP and attended an independent school (‘A’ School), which was funded by his parents. The local authority named a maintained secondary school (‘O’ School) in Section I of his EHCP rather than ‘A’ School and his parents therefore appealed to the FTT. The FTT dismissed the appeal, naming ‘O’ School in S’s EHCP. His parents appealed to the UT.
The appeal to the UT consisted of 5 main grounds, however, the crux of the parents’ argument was that the FTT gave inadequate reasoning. In particular, the parents argued that the FTT had erred in law when it had determined that ‘A’ School was not capable of making the provision required in S’s EHCP and it was therefore not suitable to name in the EHCP. S’s parents also argued that the FTT was wrong to give little weight to the evidence of a speech and language therapist, who appeared as a witness on the basis for the parents, that her views as to the suitability/appropriateness of ‘A’ School were outside of her speech and language specialism.
In respect of the suitability point, the UT noted that the FTT had found ‘A’ School to be unsuitable on the basis that the school was not delivering the provision identified to be required in S’s EHCP and that he was isolated. S’s parents had not asked the FTT to consider whether ‘A’ School could make the necessary provision in the event that it was found it wasn’t making the provision. The UT’s finding was specific to the facts of this case but it makes clear the need for parties to ensure that, if a school attended by a child is not currently making the required provision, it can demonstrate that it is able to do so.
The UT disagreed with the suggestion that the FTT did not give great enough weight to the speech and language therapist’s evidence and found that the if the reasons as set out by the FTT were read as a whole, all of her evidence was considered. The UT agreed that a speech and language therapist may be able to give evidence beyond the direct provision of speech and language therapy where there is a link between a child’s language needs and the relevant placement. It went further to suggest that, had the FTT rejected her wider communication-related evidence relating to placement suitability just because of her profession, it would have found the FTT had erred in law.
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 Government UK Official Statistics, Tribunal Statistics Quarterly, July to September 2021 (https://www.gov.uk/government/statistics/tribunal-statistics-quarterly-july-to-september-2021/tribunal-statistics-quarterly-july-to-september-2021), published 9 December 2021
 Section 46 (1), Children and Families Act 2014
 Paragraph 2 JL (by EA) –v- Somerset County Council  UKUT 324 (AAC) (https://assets.publishing.service.gov.uk/media/61dd6088d3bf7f0548ec1361/HS_0930_2021_reasons_for_decision.pdf)
 Paragraph 25 JL (by EA) –v- Somerset County Council  UKUT 324 (AAC) (https://assets.publishing.service.gov.uk/media/61dd6088d3bf7f0548ec1361/HS_0930_2021_reasons_for_decision.pdf)
 Paragraph 2 and paragraph 15 (paragraph 2 of FTT decision), NS & RS –v- Kent County Council  UKUT 311 (AAC), (https://assets.publishing.service.gov.uk/media/61d824bf8fa8f505893f1c90/HS_1520_2020-00.pdf)
 Paragraph 140, NS & RS –v- Kent County Council  UKUT 311 (AAC), (https://assets.publishing.service.gov.uk/media/61d824bf8fa8f505893f1c90/HS_1520_2020-00.pdf)
 Paragraph 80, MS & LS –v- Wakefield Council  UKUT 316 (AAC), (https://assets.publishing.service.gov.uk/media/61d84c75d3bf7f0540d10bcd/HS-1597-2019.pdf)
 Paragraph 81, MS & LS –v- Wakefield Council  UKUT 316 (AAC), (https://assets.publishing.service.gov.uk/media/61d84c75d3bf7f0540d10bcd/HS-1597-2019.pdf)