| SPOTLIGHT |
The Upper Tribunal has allowed a mother’s appeal against a decision by the First-tier Tribunal to uphold a local authority's decision that it was not necessary to maintain her son’s Education, Health and Care (EHC) plan.
In AB v East Sussex County Council (Disability discrimination in schools) [2024] UKUT 87, Upper Tribunal judge Freer found that the Tribunal in this case “did not identify adequately the special educational provision O required”.
The case concerned O, a 22-year-old with diagnoses of Severe Learning Disability; Autistic Spectrum Disorder; ADHD; Oppositional Defiance Disorder; Separation Anxiety Disorder; Generalised Anxiety Disorder plus other health conditions.
At the time of the hearing before the First-tier Tribunal (the Tribunal), O lived with his mother, AB, in Sussex.
From September 2016, O attended the appointed school and from 9 September 2019 until July 2022 he transferred to a Specialist College, an independent placement that is not section 41 approved. O's education ceased after that time due to a lack of funding for his college placement, said the judge.
On 16 June 2022, a decision was made by the Local Authority to cease to maintain the EHC plan for O. That decision was to take effect from 31 July 2022.
An application for judicial review was made relating to the decision. The proceedings were withdrawn and a new section F provision was agreed by the parties of 15 hours of 1:1 tuition per week and 10 hours per week of a learning mentor during term time and 5 hours per week of Adult Social Care in non-term time to be “increased incrementally”, said the judge.
He noted that O has not taken up the 25 hours of support in the order/schedule in the JR proceedings.
By an appeal made on 14 July 2022, AB as the 'Alternative Person' and parent of O, appealed against the decision of the Local Authority to cease to maintain the EHC Plan.
AB also appealed against section F of the latest EHC Plan but not section I.
In a decision dated 26 April 2023, the Tribunal upheld the Local Authority's decision to cease to maintain and that it was not necessary to maintain the EHC plan.
“The Tribunal having made this decision considered that it did not need to address changes to the EHC Plan and section F or recommendations for social care. There was discussion about the 25 hours of social care provision the Local Authority intended to make and the fact that consideration would be given to a 2:1 provision to start with in the community and that risk assessments would be needed”, said judge Freer.
The mother’s application for permission to appeal to the First-tier Chamber was refused by a decision dated 13 July 2023. She made a further application to the Upper Tribunal, where permission to appeal was given on 12 September 2023.
The following grounds were advanced at the hearing:
Outlining the relevant legal framework, the judge noted that Section 42 of the Children and Families Act 2014 sets out the duty on a local authority where it maintains an EHC plan for a child or young person to "secure the specified special educational provision for the child or young person" (s.42(2)) unless "the child's parent or the young person has made suitable alternative arrangements" (s.45(5)).
Further, Regulation 30 of the Special Educational Needs Regulations 2014 provides:
"(1) When a young person aged 18 or over ceases to attend the educational institution specified in his or her EHC plan, so is no longer receiving education or training, a local authority may not cease to maintain that EHC plan, unless it has reviewed that EHC plan in accordance with regulations 18 and 19 and ascertained that the young person does not wish to return to education or training, either at the educational institution specified in the EHC plan, or otherwise, or determined that returning to education or training would not be appropriate for the young person.”
Considering Ground 1, the judge noted there are only two circumstances under the provisions of section 45(1) of the 2014 Act that allow the local authority to cease to maintain an EHC Plan for O: where the local authority is no longer responsible for him, which is not the position in this case, or the local authority determines that it is no longer necessary for the plan to be maintained.
The Tribunal found at paragraphs 61 and 62 of its decision, as part of the conclusions, that: “Ms Leach who has known O for about 6 years was a persuasive witness” and the view of Ms Leach was that for O an “appropriate provision was blended provision, with a transition to a social care package”.
The Tribunal could not identify why the EHCP was still needed. In paragraph 65 of its decision, the tribunal concluded: “[O] has not engaged and it is not clear why. He does not engage with small group work. There has been no engagement with the IPS provision. There has been no agreement to take up social care outside of term time. It is therefore difficult to see how he will engage and take up further educational provision of the highest level of provision - an extended day in residential provision and how an EHCP can help.”
Judge Freer said: “The conclusion at paragraph 65 references doubt over whether an EHC plan would help O to “engage and achieve”. But that conclusion also omits the identification and consideration of what special educational provision O actually required.”
The local authority contended that the case was illustrative of the difficulties in drawing a line between special educational provision and lifelong learning. The local authority's case was that, properly considered, the work to be done with O in the community through social care provision was not special educational provision but “continuation of lifelong learning”.
However, the judge said: “The Tribunal does not set out that conclusion and I accept the Appellant's argument that it would be surprising if the Tribunal had resolved the appeal on that basis without expressly confirming it. In addition the Tribunal has not addressed, or at least set out its reasoning, how such an approach is to be reconciled with section 21(5) of the 2014 Act, where a social provision which educates or trains a child or young person is to be treated as special educational provision.”
He added: “It may have assisted the Tribunal to have adopted the 'affinity test' suggested by the Cheshire East case: a local authority/Tribunal should ask itself whether a young person would meet the test for preparing and maintaining an EHC plan in the first instance. If the answer is 'yes', it is difficult to reach a conclusion that it is no longer necessary for an EHC plan to be maintained.”
Allowing ground 1, he concluded that pursuant to the statutory test, the Tribunal in this case “did not identify adequately the special educational provision O required”.
Turning to ground 2, Judge Freer observed parallels with the Cheshire East case, in which the Tribunal considered that the Tribunal had found: "a less structured and less formal daytime environment was a more suitable learning environment" and "Apart from Ms M having achieved her special educational and training outcomes, the First-tier Tribunal relied upon findings that a formal education setting would not help".
He said: “The Upper Tribunal concluded that the difficulty with the tribunal's reasons was that: "it was largely unclear what, in the tribunal's determination, Ms M should be learning and [what] skills she needed to attain".”
He continued: “In my respectful view the same can be said of the decision in O's case, where the Tribunal records, for example, that the clear view of Ms Leach was that "appropriate provision was blended provision with the transition to a social care package. This would involve meaningful activity, relationship building, living near family, developing life skills and links with the world of work". This is a broad view of the circumstances with no, or inadequate, findings on what special educational provision was required. This may have been perhaps because Ms Leach had not seen O since he left college in July 2022 and there was no up to date educational assessment by the Local Authority. At the date of the hearing the Local Authority had not put together the Adult Social Care package relied upon to meet O's needs, which made any comparison difficult, particularly in the absence of identifying any special educational provision that O required.”
Allowing ground 2, the judge concluded that the Tribunal made the error of law identified in the Cheshire East case and focussed on the appropriate setting to deliver education and training without identifying the special educational provision O needed.
On ground 3, Judge Freer noted that the Tribunal “correctly stated” that it was not a tick box exercise and focussed on what it considered to be the key points.
He said: “The tenor of the Tribunal's conclusion was that most of the outcomes were generic, some were long-term, or show fluctuating achievement, and as a whole were not useful indicators of necessity and the section 45 question. Section 45(3) only requires the Tribunal to have "regard to" whether the education or training outcomes specified in the plan have been achieved. The Tribunal did so and moved on to consider the wider question of whether the EHC Plan was still needed.”
He dismissed ground 3.
On ground 4, the judge established that it addressed the same point covered in ground 1. Therefore, it was dismissed.
However, he said: “Without a clear finding of what special educational provision is required, the Tribunal was not in a position to address whether or not that provision was achievable through an Adult Social Care arrangement or otherwise.”
Finally, on ground 5, counsel for the appellant relied on regulation 30(1) of the 2014 Regulations, which provides that the local authority "may not" cease to maintain an EHC plan: "unless it has reviewed that EHC plan in accordance with regulations 18 and 19 and ascertained that the young person does not wish to return to education or training, either at the educational institution specified in the EHC plan, or otherwise, or determined that returning to education or training would not be appropriate for the young person".
Regulation 19 provides an obligation on the local authority to consult "the young person and take into account their views wishes and feelings" and to consider their progress towards achieving the outcomes specified in the EHC plan.
Judge Freer said: “In this case, the Tribunal referred to AB's summary and then recounted Ms Leach's evidence, with which the Tribunal agreed that O: "can develop his English and Maths skills by practical implementation i.e. shopping, weights and measures and so on and that academic learning in these areas was not likely to result in any further gains". There is an implication in that paragraph, leading into paragraph 65, that the Tribunal considers that the Local Authority may cease to maintain the EHC Plan because returning to education or training would no longer be appropriate for O.
“However, if that is the approach taken by the Tribunal, it appears only to have focussed on the academic learning element and not the broader view of 'education and training' set out in the statutory definitions referred to above, or has made a decision without first ascertaining a view based on any element of the evidence that O does not wish to return to education or training, either at the educational institution specified in the EHC Plan or otherwise. Either approach demonstrates an error of law.”
He continued: “On a practical level, if a tribunal find itself in the unusual position where regulation 30 is engaged and the wishes of the young person have not been ascertained, then it should be proactive in seeking that input. In this case for example, AB gave oral evidence and that point may have been expressly put to her. If the position remained unclear then suitable and proportionate orders could have been made after discussion with the parties.”
The appeal was allowed on grounds 1, 2 and 5. The judge directed for the matter to be remitted to a “wholly different tribunal panel” of the First-tier Tribunal for reconsideration at an oral hearing.
Lottie Winson
