Council defends decision that education, health and care plan not necessary

The Upper Tribunal has dismissed an appeal that claimed Birmingham City Council had been wrong on three grounds when it decided an education, health and care (EHC) plan was not necessary for a 10-year-old child.

In an appeal from the First Tier Tribunal, heard by Judge SM Lane, none of the three grounds of appeal were successful.

Parent CB argued that the evidence before the First Tier Tribunal indicated that child K’s special educational needs could only be met within a maintained mainstream school with additional resources being provided, but the special educational provision could not be delivered from internal resources.

They said the tribunal therefore erred by determining that an EHC plan was not necessary and by relying on the council’s ‘local offer’ in deciding this plan was not needed.

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The second ground of appeal was that the tribunal had no evidence to support its view that skilled and experienced teachers would be available for K within a mainstream school and that where no school was named in an assessment, the council had to show that each item of special educational provision SEP was available in all local mainstream schools.

A third ground was that the tribunal should have required Birmingham to identify the precise support that K required.

K was nearly 10 at the time of the original tribunal decision. She is dyslexic, has dyscalculia and working memory difficulties with cognitive ability at the low end of the normal range.

The school she attended asked Birmingham to carry out an assessment when it felt unable to provide the special educational provision identified in private educational psychology reports commissioned by CB.

Judge Lane said in CB v Birmingham City Council (SEN) (Special educational needs - other) [2018] UKUT 13 (AAC) that the present code on the subject “envisages that the majority of children with additional educational needs will not require EHC plans”.

He said schools had a set amount of additional funds per pupil to meet additional educational needs caused by learning difficulties and disability falling short of requiring an EHC plan and access to exceptional needs funding and specialist advice. The tribunal was entitled to accept Birmingham’s confirmation regarding the cost of provision as being factually accurate that this could be met from funds available.

He said he did not accept that the tribunal had no evidence before it on whether skilled and experienced staff would be available and that the third ground had “no merit” as Birmingham had carried out a statutory assessment of K’s needs.

Mark Smulian

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