Court of Appeal dismisses appeal by council in SEN case on basis it was “academic”

Lord Justice Cobb, with whom Lord Justice Stuart-Smith and Lord Justice Phillips agreed, concluded that regardless of the result of the appeal on its merits, it would not affect either the current statutory obligations of the local authority towards the child in question, “and the means by which they are exercising them”, nor the child’s current placement at a school.

Cobb LJ noted: “No order or declaration made by this court would be of any real practical benefit to the parties, or either of them. Furthermore, I am not satisfied that this case satisfies the test of wider public interest as to justify the grant of such relief.”

The appeal arose from proceedings concerning the special educational provision required by a 17-year-old young person, anonymised as AA.

She has a chromosomal abnormality which has resulted in global development delay and significant physical disabilities which impact all areas of her development and learning abilities.

Cobb LJ said: “AA is a young person with special educational needs to whom the duties for special educational provision under Part 3 of the Children and Families Act 2014 (CFA 2014) are owed. For some years, she has had an Education, Health and Care Plan.”

The proceedings commenced when the child’s parents lodged an appeal to the First Tier Tribunal (FTT) under section 51 of the CFA 2014, in relation to the 2023 EHCP.

Prior to the appeal in the FTT, three sections of the 2023 EHCP were challenged by the parents, however, in pre-court discussions, the parents and the local authority agreed the contents of one of the disputed sections.

Therefore, two sections remained in dispute before the FTT, namely section F (the special educational provision required to meet the special educational needs of AA) and section I (the type or the name and type of the educational setting to be attended by the child or young person).

The FTT heard evidence from an occupational therapist, an educational psychologist, the heads of the two schools under consideration, which Cobb LJ referred to as “Eliot School” (proposed by the parents) and “Milton School” (proposed by the local authority).

The position of the parties before the FTT were summarised by the Court of Appeal judge as follows:

“i) The parents, supported by expert evidence, proposed that AA's needs were such that she required educational provision which extended beyond the normal school day; they identified a suitable placement (albeit not of a type listed in section 41 CFA 2014) at Eliot School, and opposed the choice of school advanced by the Local Authority.

“ii) The Local Authority, also supported by expert evidence (though not in the FTT's finding, either comprehensive or up to date), disputed AA's need for educational provision beyond the confines of the school day; it identified Milton School as suitable. It argued that Eliot School would 'over provide' for AA's needs, albeit it would in other respects be 'suitable' for her. The Local Authority argued that there would be a significant difference in the cost to the Local Authority of the two schools, and for the FTT to name it in accordance with parental preference would not be compatible with its duty to consider avoiding unreasonable public expenditure, given the significant costs differential.”

Concluding the case, the FTT:

Preferred the evidence (including the expert evidence) adduced by the parents;
Considered that AA required educational provision which extended beyond the school day;
Considered that Milton School would not meet her needs; the FTT recorded that the head of Milton School had accepted that it could not provide for AA if (as the FTT found) she required an extended day curriculum;
Considered that AA required residential provision;
Rejected the argument that Eliot School would 'over provide' for her needs;
Put Eliot School in to the EHCP in Section I as the chosen placement.

The local authority appealed this decision to the Upper Tribunal (UT). The UT dismissed the appeal in November 2024, and confirmed the FTT's decision. It found that the FTT had not erred in law.

With the permission of Zacaroli LJ, the local authority appealed to the Court of Appeal against the UT's dismissal of the earlier appeal.

It argued that the FTT:

Had wrongly conflated extended day curriculum with the provision of residential placement (Ground 1);
Had failed to approach the issues in the correct logical sequence: i.e., need, provision, placement (Ground 2);
Had failed to deal appropriately, or at all, with the need to have regard to the avoidance of unreasonable public expenditure (Ground 3).

Cobb LJ noted: “By its Appellant's Notice dated 11 March 2025, the Local Authority indicated that it sought an order setting aside the order of the UT, which had in turn dismissed the Local Authority's appeal against the FTT's determination. This would have left the FTT decision intact.

“In his Skeleton Argument in support of the appeal, [counsel for the local authority] clarified that he would invite this Court to quash the decision of the FTT, and direct that the case is heard by a freshly constituted tribunal. In oral argument, he refined the position yet further, by indicating that in quashing the FTT decision, this Court should make a "declaration that the FTT applied the law incorrectly".”

In presenting his claim for relief, counsel accepted that the decision of the FTT was made now two years ago.

He also accepted that:

Even if the decision was unlawful, there would be little purpose in the court directing a reconsideration, given that the local authority has, in fulfilment of its statutory duties, had cause to review AA's EHCP at least once (if not twice) since the FTT hearing.
As a matter of fact, in January 2025, AA moved to Eliot School.

Cobb LJ noted: “[Counsel for the local authority] confirmed that she has settled there well, and there is no plan to move her at least until the end of the academic year in which she turns 18 (at least 18 months from now). When she is 18, there will be a further review of her needs.”

Counsel for the local authority argued that the appeal was not academic, as it was important that:

There should be a legally sound basis for all decisions in respect of AA's EHCP;
Given the prevalence of cases in which parents seek prohibitively expensive provision for their children under EHCPs there is a need for clarification from the Court as to how to approach section 9 EA 1996 in light of the decision in IM v Croydon [2010] UKUT 205 (AAC), especially at [9].

Outlining relevant caselaw, Cobb LJ said: “It is a long-established principle that a court, whether first instance or appellate, will only make determinations on matters which are truly in dispute between the parties; Lord Bridge commented in Ainsbury v Millington [1987] 1 WLR 379 at 381 that courts do not "pronounce on abstract questions of law where there is no dispute to be resolved".

“An exception is recognised for arguments on points of law (especially in public law cases) which, although "academic" or "hypothetical", are points of general public interest. Even if it were such a case, the court's discretion to hear such an appeal would always be exercised with caution, and the jurisdiction to proceed is a narrow one (R v Secretary of State for the Home Department Ex p. Salem [1999] 2 WLR 483, HL).”

Discussing the present case, he said: “Three complaints were raised about the manner in which the FTT set about its decision-making. That decision was reached two years ago. Much water has flowed under the bridge since then, and the decisions made by the FTT have been acted upon by the Local Authority, to AA's apparent benefit. How the FTT formulated its approach to setting the special educational provision for AA in the 2023 EHCP has become completely disconnected from the actuality of AA's current life in 2026.

“The FTT's formulation has no impact on the current exercise of the statutory duties owed by the Local Authority to her. There has been at least one (possibly two) further review of AA's EHCP since the FTT decision. AA is currently well-settled at Eliot School, and no alternative provision has been considered or, so far as we know, proposed for AA.”

Cobb LJ therefore found it was unnecessary to consider the specific Grounds of Appeal and/or the arguments in support, because he was “satisfied that there is in fact no dispute of substance for this court to determine”.

He said: “In short, whatever the result of this appeal on the merits (i.e., even if the Local Authority were to succeed in demonstrating that the UT was wrong to uphold the FTT's decision), it would not affect either (a) the current statutory obligations of the Local Authority towards AA under the CFA 2014 and the EA 1996, and the means by which they are exercising them, nor (b) AA's current placement at Eliot School (which the Local Authority told us it had no intention to disturb for the time being), nor (c) the position of AA's parents.”

He continued: “No order or declaration made by this court would be of any real practical benefit to the parties, or either of them. Furthermore, I am not satisfied that this case satisfies the test of wider public interest as to justify the grant of such relief. As it happens, and for perfectly understandable reasons, the parents do not agree to us doing so. Insofar as it was tentatively suggested that a declaration may be of value to these parties in considering future EHCP or similar determinations for AA, it seems to me that this court would have no proper jurisdiction to engage with this prospective and somewhat hypothetical exercise.” (Judge’s emphasis).

In his closing remarks, the Court of Appeal judge acknowledged: “No-one is under any illusion about the significant cost of specialist education for young people with special educational needs, nor – as it happens – the current shortage of specialist school places. In these circumstances, it is a matter of regret that the Local Authority elected to devote limited resources to pursuing an appeal to this Court which has, ultimately, yielded no substantive benefit.”

Lord Justice Stuart-Smith and Lord Justice Phillips agreed.

Lottie Winson