Upper Tribunal Judge Mitchell said giving judgment on AA v Bristol City Council that the error - involving a failure to give adequate reasons for its decision - now probably related to matters overtaken by events and it was unclear how the FTT could remedy it.
Bristol issued D’s EHC plan, in which he was described as having a severe and complex learning disability and significant communication difficulties.
The Plan provided for D to be educated at a school and his required special educational provision was framed accordingly.
Bristol later changed the plan to provide for education otherwise than at school, with a firm commissioned to assess D.
This firm though wanted 2:1 support while D accessed the community so that were he to run away two people would be available to use fluid restraint and/or two-person escort techniques to keep him safe.
The tribunal heard D "cannot be restrained or escorted safely by one person” and that even his mother used a ‘Houdini harness’ on him.
D’ parents were dissatisfied with aspects of the EHC Plan and how it had been arrived at and went to the Upper Tribunal, which granted permission to appeal against the FTT’s decision on six grounds.
These were:
- failure to consult before amending final version of the Plan’s working document;
- that the FTT arguably erred in law by ordering provision for multi-agency meetings that was so unclear as to be unenforceable;
- that the FTT arguably failed to explain why it ordered a provision involving, or anticipating, 'restraint' despite parental submissions that D should be able to access the community without physical restraint being used;
- that the Tribunal erred in law in its treatment of a second report by a social worker by failing to take it into account and/or by providing inadequate reasons for preferring the local authority's earlier assessment;
- failing to consider D's related sleep and ADHD difficulties, so not addressing a fundamental part of the parental case.
Judge Mitchell said: “This appeal succeeds on a single ground. The First-tier Tribunal's decision involved an error on a point of law because it did not give sufficient reasons for its decision. In the circumstances, the Tribunal was required to give some explanation for its rejection of [a social worker's] April 2022 addendum report.
“Despite the Tribunal having erred in law, I have decided not to set aside its decision.”
This was because the FTT’s error related to its discretionary power to give a social care recommendation.
Even if it had not erred but had given the recommendation sought by AA, the council was not bound to accept this.
By contrast, where a tribunal orders special educational provision in Section F of an EHC Plan, the relevant local authority is required to secure that the provision.
“In my judgment, this distinction is a relevant consideration for the Upper Tribunal in deciding how to dispose of an appeal after finding that the First-tier Tribunal erred in law in the exercise of its recommendation power but whose decision, insofar as it relates to special educational matters, is free of legal error,” the judge said.
“It is also probable that matters have developed in D's life so that [the social worker's] addendum report no longer speaks to D's current circumstances. If that is the case, how would the First-tier Tribunal be supposed to remedy the deficiency identified by the Upper Tribunal?
“It would be faced with an Upper Tribunal decision that finds it erred in law in its treatment of a report that is no longer relevant and, for that reason, could not properly be taken into account since the Tribunal is required to address current circumstances.”
Judge Mitchell added: “For these reasons, I decide not to set aside the First-tier Tribunal's decision.”
Mark Smulian