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Upper Tribunal rejects appeal by county council over naming of school for child with special educational needs

Worcestershire County Council has lost an Upper Tribunal case over which school a child with special educational needs should attend.

It unsuccessfully asked the Upper Tribunal (Administrative Appeals Chamber) to overturn a decision by the First Tier Tribunal (HESC) (Special Educational Needs & Disability).

In Worcestershire County Council v SE [2020] UKUT 217 (AAC) Upper Tribunal judge Mark West allowed Worcestershire to appeal on three of the five submitted grounds, but also dismissed all of these.

Worcestershire had said Child C should attend the mainstream Westacre Middle School for her secondary education, but her mother wanted her to go to the independent Bredon dyslexia-specialist school.

“In essence, the council’s submission was that the tribunal erred in using its own expertise to determine issues within the appeal without explaining why it departed from the evidence before it or giving the parties an opportunity to consider or comment on its thinking,” Judge West said.

"It further erred in its failure to understand properly – or attempt to understand – the evidence before it; where it required more information it did not act inquisitorially and its determination of the appeal without that evidence amounted to an error of law.”

Worcestershire said the tribunal thus found Westacre unsuitable for C “based on an inaccurate and incomplete understanding of the facts and its decision that Bredon was suitable was also made without the necessary evidence”.

C’s mother though said Worcestershire could have questioned professionals during the hearing had it chosen to and had itself agreed to Bredon’s suitability.

Judge West allowed Worcestershire to raise as appeals an argument that the tribunal had amended the C’s education, health and care plan in a way that was unclear and so unlawful, that the tribunal decided without evidence that C required 1:1 speech teaching and it had wrongly concluded that C had made insufficient progress for Westacre to be suitable.

He though dismissed all these grounds saying they covered conclusions the tribunal had been entitled to reach.

The judge said: “The tribunal’s decision is meticulous, comprehensive and detailed,…it has considered all relevant evidence in frankly exhaustive detail and has provided cogent and comprehensive reasons for the findings of fact which it made. I can see no material error of law in its determination.”

He said Worcestershire could not re-litigate questions of fact determined by the FTT simply because it disagreed with them.

Mark Smulian

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