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Parents win fresh hearing in dispute over school named in EHC plan

The Upper Tribunal Administrative Appeals Chamber has ordered that a reconstituted panel of the First Tier Tribunal (FTT) should hear a dispute between the London Borough of Croydon and the parents of Child G over which school he should attend.

In A J v. London Borough of Croydon [2020] UKUT 246 (AAC) Judge West found the FTT’s decision so filled with errors that he upheld all grounds of the appeal brought by the child’s mother.

He ruled that the FTT panel that reconsiders the case must not include anyone who sat on the earlier hearing and would not be “bound in any way by the decision of the previous tribunal”.

The dispute concerned whether G should continue to attend Wickham Court School or move as the council wished to Bensham Manor School.

Croydon said Bensham Manor School was most suitable for G’s secondary education as it was a maintained special school.

His parents though felt G was happy at Wickham Court - an independent mainstream school - and wanted him to continue there.

The FTT concluded that Wickham Court would be unsuitable because it does not specialise in meeting any particular special need.

Judge West found for G’s mother on all the grounds raised. The first was that placement at a special school was inconsistent with G’s education, health and care plan (EHCP) which did not indicate that he required a peer group other than a mainstream one.

Analysing the case Judge West said G’s parents had been sent an EHCP in February 2019 in which Bensham Manor had been substituted for Wickham Court but without any other change from an earlier document.

Judge West said the FTT had “unlawfully ordered a placement at an ASD special school when nothing in section F of G’s EHCP suggested or provided that he required such a placement (or required anything other than a mainstream placement)”.

On the second ground of appeal he found the FTT erred in law by not providing sufficient reasons or explaining properly why it concluded that Bensham Manor was suitable, and failed lawfully to explain the basis on which it rejected points raised by the parents about its suitability.

He also found that the FTT should not have decided that G’s parents had to show that Wickham Court was suitable - rater than the council show why it was not -  given that Croydon had not previously questioned its suitability. It should also have sought further evidence.

Judge West said: “Even if, despite there being no evidential foundation for the questions being raised and despite them actually being contrary to the evidence, the [FTT] nonetheless wanted to satisfy itself on the points, then it was incumbent on it to take the necessary steps to ensure the evidence was available to it, not simply to (in effect) bemoan the lack of anything specifically on those points and treat that as fatal to Wickham Court being considered suitable, including by inappropriately placing the burden on the parents to answer unevidenced questions raised by the council, rather than by requiring the council to make good its points.”

Croydon argued that Wickham Court was far more costly than Bensham Manor and therefore any tribunal re-examining the case would be bound to reach the same decision.

But Judge West said: “On the untested (and disputed) figures before me, I cannot conclude that the disparity is such no reasonable tribunal, when considering the matter afresh, including with oral evidence, could do other than conclude that the potential sum here would in all the circumstances amount to unreasonable public expenditure such that any finding to the contrary would be perverse and irrational.”

He said it was not for the Upper Tribunal “to second guess the exercise of evaluation” and that this should be settled by the new tribunal hearing.

Mark Smulian

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