Judge criticises tribunal for failing to explain adequately refusal of proposed provisions in section F of EHCP

Upper Tribunal Judge Citron decided though not to set aside the FTT’s decision, as a new plan for MB had subsequently replaced the disputed one.

He said the case outcome was not academic as his decision “will now be something for tribunals to consider (and, where appropriate, apply) when deciding future appeals on similar issues”.

The FTT said the Duke of Edinburgh scheme, a drama group, volunteering activities, gym sessions and membership, a therapeutic gardening course, and a programme to help MB with travelling should not form part of the original plan.

Judge Citron though said the FTT erred in not adequately explaining why it was not satisfied about including each of these.

In his analysis, he said: “It seems to me the basic matters the tribunal had to consider when assessing the seven proposed 'provisions' at issue in this appeal for inclusion in Section F were:

1. Is it either educational provision or training provision?
2. Is it additional to, or different from, the educational or training provision made generally for other 18-year-olds in mainstream post-16 institutions in England?
3. Is it called for by the special educational needs as set out in Section B?
4. Is it required by the young person (here, by MB)?

“The above is based on s21 and regulation 12(1)(f). I also note:

1. that training is defined to include, most relevantly here, social, physical and recreational training (s83(2), read with s15ZA(8) Education Act 1996); and
2. as an alternative to questions a and b above, there can be 'deemed' special educational provision, where social care provision or health care provision educates or trains (s21(5)).

“All four of the questions, as I have posed them above, had to be answered in the positive, in order for the proposed 'provision' to be included in Section F of MB's EHC plan.”

With the Duke of Edinburgh course, Judge Citron noted this could perfectly possibly amount to educational or training provision “but there is no adequate explanation (based on relevant fact-finding) of why the tribunal rejected these realistic possibilities”.

He found a similar lack of cogent explanations for each of the proposed activities.

He said: “What I would say here is that there is no error in the brevity of the tribunal decision's approach: it is that I have found it impossible to derive adequately explained answers to the questions asked by the legislative code. […] In my view, the tribunal decision erred in the distinct matters that are the subject matter of this appeal.”

Concluding the case, Upper Tribunal Judge Citron said: “Were it not for the fact that the EHC plan that was the subject matter of the tribunal decision has now been replaced with a new EHC plan for MB, my inclination would have been to set aside the tribunal decision, so far as it dealt with the seven proposed 'provisions' considered above, and remitted the case to the tribunal with directions for its reconsideration (given that further fact-finding may well be required, to determine these matters).

“However, given the position as it is, taking that path would seem an empty exercise, and so contrary to what is fair and just. I have therefore refrained from exercising my discretion to set aside the tribunal decision. That does not, however, render the outcome of this appeal academic, as this decision will now be something for tribunals to consider (and, where appropriate, apply) when deciding future appeals on similar issues.”

Mark Smulian and Lottie Winson