Annual reviews and amending EHC plans Expand R (L, M, and P), v Devon County Council [2022] EWHC 493 (Admin): This case clarified that when a local authority ("LA") concludes an annual review by proposing to amend an EHC plan, it must notify the parent/young person of this decision AND what the proposed amendments actually are within four weeks of the annual review meeting. The final EHC plan must be issued as soon as practicable and within a further 8 weeks maximum. Therefore, the LA must send the parent or young person the final amended EHC plan within a maximum of 12 weeks of the annual review meeting.
Mediation Expand Kumar v LB Hillingdon (Rev 1)[2020] EWHC 3362 (Admin): This case confirms that a parent or young person is entitled to choose who supports them during mediation. If they would like someone to do so, the LA cannot refuse to participate if disagrees with who the they have chosen. This includes if the parent wants to be supported by a lawyer.
Children out of school or not getting a full-time education Expand R v East Sussex County Council, Ex p Tandy / In re T (A Minor) [1998] 2 WLR 884: The LA is under an absolute duty to provide suitable education for children who are out of school due to illness, exclusion or otherwise. An LA may not take its own financial constraints into account when assessing what is an appropriate education. RD and GD v The Proprietor of Horizon Primary (Responsible Body) (SEN): [2020] UKUT 278 (AAC) Whether or not a part-time timetable is discriminatory will depend on whether it is a proportionate means of achieving a legitimate aim – the school needs to consider whether the disadvantages caused to the child by the part-time timetable outweigh or are disproportionate to the aim pursued by the school. In this case, on balance, the part-time timetable was determined to be proportionate. R (on the application of Y) v Croydon LBC [2015] EWHC 3033 (Admin); [2016] E.L.R. 138: The mother of a severely learning-disabled child had been unable to get him to attend school despite significant efforts. The LA refused to change the school named in the Statement or provide other alternative education. The LA was found to be in breach of its duty under s. 19 Education Act 1996 to provide suitable education; as no further plan had been put forward, it was not reasonably practicable for the child to attend that school.
Home-to-school transport Expand R v Hereford and Worcester County Council, ex parte P 2 [1992] 2 FCR 732: Where an LA has responsibility for transporting a child or young person with special educational needs to school or college, that transportation must be ‘non-stressful’. S and another v Dudley Metropolitan Borough Council [2012] EWCA 346: This case details the circumstances where it is permissible for an LA to charge parents for transport – which is where the child does not attend their nearest suitable school and to provide transport would be an inefficient use of resources. Staffordshire County Council v JM (SEN) [2016] UKUT 246 (AAC): When determining whether free transport is necessary for a young person aged over 19, an LA must exercise their judgment “judiciously and in good faith" – essentially it must make its decision fairly. Even if it does not consider it ‘necessary’, an LA has a discretion to pay some or all of the reasonable costs of transport if no other arrangement has been made.
Young people and mental capacity Expand Buckinghamshire CC v SJ [2016] UKUT 0254 (AAC): Where a young person has the mental capacity to make decisions relating to the appeal, they must bring the appeal themselves (although their parents can help them). Where the young person does not have the capacity to do so, an ‘alternative person’ (usually their parent) will be the person bringing the appeal.
Responsibility to ensure provision in EHC plan is made Expand BA, R (on the application of) v Nottinghamshire County Council [2021] EWHC 1348 (Admin): Where an EHC plan is issued following a SEND Tribunal order in line with SEND Reg 44(2)(e), the LA is obliged to implement the special educational provision set out in the plan from the date it is issued. The LA has five weeks from the date of the order until the plan must be issued, and this time should not just be used to draft and/or amend the plan but must also be used to prepare for the implementation of the provision. Any delay in implementing the provision will amount to a breach of the LA’s duty under section 42 Children and Families Act 2014. R v Oxfordshire County Council ex parte Pittick [1996] ELR 153: If a school is not able to fund the special educational provision in the Statement or EHC plan from its own resources, the obligation to arrange and secure the provision remains with the LA. A dispute about funding between a school and an LA should never be the reason why a child or young person does not receive the special educational provision in their Statement or EHC plan. N v North Tyneside Council [2010] EWCA Civ 135: Where a Statement or an EHC plan identifies special educational provision, the LA has an absolute obligation to ensure that it is provided. It is not open to the LA unilaterally to change the Statement as and when they thought that was appropriate. R v London Borough of Harrow ex parte M [1997] ELR 62: The LA is responsible for ensuring the educational provision in a Statement (now an EHC plan) is made, even where the provision in question is actually provided by another body (here, the health service). If the health service fails to make the provision the LA must step in.
Requesting an independent school or college Expand London Borough of Hillingdon v SS and others (SEN) [2017] UKUT 250 (AAC): This case sets out the law to be applied when a parent or a young person makes a request for an independent placement. EC v North East Lincolnshire LA (HS) [2015] UKUT 0648 (AAC) [2016] ELR 109: Where the parents are asking for an independent school, the First-tier Tribunal must first consider whether the parents’ and the LA’s choices can meet need. If they can both meet need, then it must then consider whether the additional expense is justified by any advantages attending that school would have for the child or young person. Hampshire CC v R & Sendist [2009] EWHC 626 (Admin): If the preferred placement is more expensive this doesn’t necessarily constitute unreasonable public expenditure. The tribunal must carry out a balancing exercise and can look, in addition to the educational benefits, at the wider health and social care benefits for the child to attend the school of the parent’s choice. Haining v Warrington Borough Council [2014] EWCA Civ 398 CA: Costs savings to the LA of the child attending the school the parent prefers are also relevant. For example, the saving to the LA of a respite care place which will not be needed if the child goes into a residential school, onsite staff specialism/therapies which would otherwise present a cost to LA/NHS, or direct payments for social care which the parents may now no longer need.
The right to a mainstream education Expand Bury Metropolitan Borough Council v SU [2010] UKUT 406 (AAC): when considering the right of a child with a Statement (now an EHC plan) to a placement in a mainstream school, whether or not the school is “suitable” is not a relevant consideration. The only issue to consider is whether attendance at the mainstream school would be incompatible with the education of other children and if so, that incompatibility cannot be removed by the taking of “reasonable steps”. ME v London Borough of Southwark [2017] UKUT 73 (AAC): when a parent or young person has asked for a mainstream setting, even if the placement is rejected under s. 39 Children and Families Act 2014 (on the grounds that it is unsuitable, or incompatible with the efficient education of others or the efficient use of resources), it may still be named under s. 33 Children and Families Act 2014 (the right to mainstream) unless the child or young person’s attendance would be incompatible with the efficient education of others and there are no reasonable steps that could be taken to avoid this. Harrow Council v AM [2013] UKUT 0157 (AAC): Where a parent requests a mainstream school and there is no suitable school available (whether inside or outside its area), the LA is under an absolute obligation to make a mainstream school suitable to meet the child’s needs, subject only to the qualification that it must be compatible with the efficient education of other children.
When an LA can refuse to name a school or college because it is incompatible with the efficient education of others Expand Hampshire County Council v R & SENDIST [2009] EWHC 626 (Admin) (2009) ELR 371: if a parent or young person requests a particular school is named in a Statement (now an EHC plan) and the LA argue that it is ‘incompatible with the efficient education of others’, there needs to be a positive finding of incompatibility, not merely by evidence of some impact on those other children. NA v London Borough of Barnet (SEN) [2010] UKUT 180 (AAC): The Upper Tribunal stated that this was a “strong test of incompatibility”, which means the test is a high threshold for the local authority. The local authority needs to have clear evidence of the difference the admission of that particular extra child or young person will make, and which students will be affected by this.
When an LA can refuse to name a school or college because it is incompatible with the efficient use of resources Expand Crane v Lancashire County Council [1997] ELR 377: An LA must first establish whether the parents’ choice of placement is more expensive than that offered by the authority. If it is, the LA must make the decision as to whether the additional expenditure involved in meeting the parent’s preference is justified. Essex CC v the SEND Tribunal [2006] EWHC 1105 (Admin): A parent or young person’s preference can only be displaced on the grounds of being ‘incompatible with the efficient use of resources’ where the extra cost is significant or disproportionate. A difference of between £2000-£4000 was not found to be ‘incompatible’.
General cases on what should be named in Section I Expand C v Special Educational Needs Tribunal and London Borough of Greenwich [1999] ELR 5: The setting named in Part 4 of a Statement (now Section I of an EHC plan) must be able to make the special educational provision set out in Part 3 (now Section F). Derbyshire CC v EM and DM (SEN) [2019] UKUT 240 (AAC): Where a child or young person requires fulltime ‘education otherwise than in school’ (EOTAS) at home, the special educational provision should be set out in Section F and Section I should be left blank, as there is no setting to be attended. Devon County Council v OH [2016] UKUT 292: While a local authority needs to give consideration to helping children and young people with SEN achieve "the best possible outcome in adult life", this does not override other considerations such as appropriateness and cost – they simply have to provide what is ‘reasonably required’. East Sussex County Council v TW [2016] UKUT 528: Section I of an EHC plan must name a place ‘to be attended’ by a child or young person – therefore it cannot be the child or young person’s home. This has implications for children and young people educated otherwise than at a setting. R v Chair of Governors and Headteacher of A and S school ex parte T [2000] ELR 274: When a parent requests a school (of one of the types set out in s. 38(3) CAFA 2014), the ultimate decision to name the school rests with the home local authority. Even if the school and the local authority in which the school is located object, they can be overruled. R v Surrey County Council Education Committee ex parte P [1997] ELR 516: An LA is not under a duty to provide the best possible education for a child; all that must be shown is that the school or college can meet the child’s special educational needs.
When should therapies (such as speech and language therapy) be classed as special educational provision, and included in Section F? Expand R v Lancashire County Council ex parte M [1989] 2 FLR 279: Speech and language therapy can constitute special educational provision. London Borough of Bromley v SENDIST and Others [1999] EWCA Civ 3038: There is a significant degree of overlap between what is educational and what is non-educational therapy. It was inappropriate to seek to impose a rigid demarcation between the two areas. In this case, physiotherapy, occupational and speech therapy were all considered to be educational. DC & DC v Hertfordshire County Council (SEN) [2016] UKUT 0379 (AAC): Therapies which train a child or young person to manage anxiety (such as cognitive behavioural therapy or mindfulness) can be considered special educational provision, but general psychological support to address mental health problems is unlikely to be educational as it does not involve instruction or training. East Sussex County Council v TW [2016] UKUT 528: The First-tier Tribunal has the power to order any changes to educational provision in an EHC plan – it can add to the provision, amend it or remove it. Health and social care provision which educates or trains is ‘deemed’ to be special educational provision, and the First-tier Tribunal can order it to be moved to Section F. However it cannot order changes to health and social care provision which is not educational. (Note that from April 2018, the First-tier Tribunal will be able to make non-binding recommendations about the health and social care parts of the EHC plan.)
What should be in Section F of an EHC plan? Expand L v Clarke and Somerset County Council [1998] ELR 129: Where special educational provision is set out in Part 3 of the Statement (now Section F of an EHC plan) it must be specific, which will normally involve specifying the number of hours of support. C v Special Educational Needs Tribunal and London Borough of Greenwich [1999] ELR 5: An LA must make decisions about provision when writing a Statement (now an EHC plan), and cannot delegate this responsibility to someone else, such as a school. (For example, the EHC plan should not say anything like “Support to be determined by the setting”.) E v Rotherham MBC [2002] ELR 266, [2001] EWHC Admin 432: A Statement (now an EHC plan) cannot provide for provision to be amended unilaterally by the LA. In this case, the Statement said provision could be changed during the year following a ‘formal discussion’. This was not acceptable – any change to a Statement or an EHC plan should follow a proper process (e.g. annual review) so that the parents have a right of appeal. R v Cumbria County Council ex parte P [1994] ELR 337: Simply referring to a financial banding or an amount of money to describe what special educational provision will be made in Part 3 of a Statement (now Section F of an EHC plan) is not specific enough to satisfy the law’s requirement. Staffordshire County Council v JM (SEN) [2016] UKUT 246 (AAC): Transport is generally not special educational provision and should not usually be included in Section F of the EHC plan.
EHC plans need to be specific and clear Expand R v The Secretary of State for Education and Science, ex parte E [1992] 1 FLR 377 CA: Statements (now EHC plans) must not be vaguely worded. Additionally, the LA must include special educational provision (in what is now Section F) for each and every special educational need identified. EC v North East Lincolnshire LA (HS) [2015] UKUT 0648 (AAC) [2016] ELR 109: The First-tier Tribunal should not ‘rubber stamp’ an inadequately vague Statement or EHC plan.
Refusal to issue an EHC plan Expand Buckinghamshire CC v SJ [2016] UKUT 0254 (AAC): Whether or not a child or young person is capable of obtaining qualifications is not a relevant consideration when deciding whether they should have an EHC plan. The only question is whether an EHC plan is necessary in order for them to obtain the special educational provision they require.
Refusal to carry out an EHC needs assessment Expand Cambridgeshire County Council v FL-J [2016] UKUT 0225 (AAC): The test for carrying out an EHC needs assessment is “provisional and predictive” – it simply needs to be shown that the child or young person may need support at a level which the school or other setting is unable to provide without an EHC plan. Buckinghamshire County Council v HW (SEN) [2013] UKUT 0470 (AAC): When considering whether to assess, the test is whether it may be necessary for support to be provided through a Statement or an EHC plan; necessary means “somewhere between indispensable and useful or reasonable”. An LA must consider not only the present situation but also take into account future changes such as an upcoming change of school. MC v Somerset County Council (SEN) [2015] UKUT 0461 (AAC): An EHC needs assessment may be necessary in order to access enforceable rights – for example, where a school could theoretically do more to support a pupil but is unable or unwilling to do so, and so an EHC plan is necessary to access that support.