Update from SEND tribunal
Updates from the Special Educational Needs and Disabilities Tribunal
The First-tier SEND Tribunal is busier than ever before, having registered a record number of appeals last calendar year. It follows that this is likely to lead to more reported decisions from the Upper Tribunal and this certainly seems to have been the case over recent months.
Here we explore just a couple of the most recent decisions which are helping to shape the SEND landscape.
In the recent case of LB Enfield v NH and another (SEN)  UKUT 1 (AAC), the Upper Tribunal held that the First Tier Tribunal had not exercised its power to debar a party from proceedings lawfully. In the case, the local authority filed the Tribunal bundle a day later than ordered by the Tribunal. It offered an apology and explanation as to why the papers were being served late, however, an hour after receiving this, the Tribunal issued an Order declaring that the local authority was barred from further participation in the appeal. This decision was made by a member of the Notice of Hearing team, having obtained permission from their Team Leader to do so; crucially, the decision was not made by a Judge or Registrar. The initial case directions had made clear that if the local authority failed to submit the bundles on time they would be barred from proceedings.
The local authority then sought to apply for reinstatement at the hearing, however this was refused on the basis there was no “merit in their application”.
The Upper Tribunal concluded that, when making this decision to bar the local authority from proceedings; the First-tier Tribunal had failed to take into account the ‘overriding objective’ to deal with cases fairly and to encourage participation. The Local Authority had, in sending the bundle, apologised and given a reason for its short delay. It was entitled to have that reasoning considered by a person authorised to do so (i.e. a Judge or Registrar) but this had not happened, and consequently, the appeal was allowed.
Although this is not an excuse for local authorities to submit bundles late, the decision in this case serves as a reminder to parties and the Tribunal that the First-tier Tribunal Procedure Rules 2008 are not to be forgotten!
Consideration of the Facts
In M v Hertfordshire County Council  UKUT 37 (AAC), the principal issue was whether the child was medically unfit to attend school, and should therefore be educated at home. Whilst the Tribunal considered in some depth the effect of the child’s rumination disorder on his school attendance, it did not take into account his school-related anxiety and associated vomiting. In failing to take into account the relevant circumstances, the Tribunal erred in law and its decision was set aside.
It’s important to note here the relevance of s.61 of the Children and Families Act 2014. Under the Act, local authorities can arrange for a child or young person’s special educational provision to be met otherwise than in a school, early year’s provision or post 16-institution. However this only applies when a local authority is “satisfied that it would be inappropriate for the provision to be made in a school or post 16 institution”.
This latest decision is not a ‘catch all’ that suggests that all pupils with school-related anxiety should be educated at home, but it does highlight that school-related anxiety may be considered as a medical need that might prevent a child from attending school. Existing case law continues to be applicable in that a local authority (and on appeal, a Tribunal) should still consider all of the facts of the case, including the child’s background and medical history, their needs, what can be provided by a school (and otherwise than at school), the comparative costs of both proposals and the wishes of the child and their parent(s).
For more information on this topic, please contact Laura Thompson, or you can give us a call on 0345 070 6000.