Case summary

In the SEND Tribunal, the parents agreed that their child’s special educational provision could not be appropriately made in a school, and a package of education otherwise than in a school was required.

The child had no traffic awareness or understanding of how to keep himself safe outdoors. The parties agreed that the child required 2:1 weekly support in the community to safely participate in education-related outdoor activities. The parent said 15 hours a week were required, and the local authority (LA) said 5 hours.

The SEND Tribunal decided:

1. 15 hours 2:1 weekly support was “excessive” and should be limited to 5, as no persuasive evidence was provided to show it should take place on every teaching day, and that 5 hours used flexibly across a teaching week was adequate to meet his needs
2. one of the 2 support workers would be the child’s Applied Behaviour Analysis (ABA) tutor, but the other support worker could be an assistant with training in restraint. The SEND Tribunal did not say what it meant by ‘restraint’, and
3. nutritional advice was properly recorded in Section G, as health provision, and that it should be removed from Section F.

The SEND Tribunal also refused recommendations for:

1. a paediatric sleep and ADHD assessment. The SEND Tribunal found this was not health provision reasonably required for the child’s learning difficulties or disabilities identified in Section C of their EHC plan, and
2. for 80 hours of flexible respite provision a year.

The parents appealed to the Upper Tribunal. One ground was successful.

The Upper Tribunal recognised the fact that the cause of the child’s sleep difficulties had not been diagnosed did not prevent it from being a ‘need’ for EHC plan purposes. However, by the time the appeal was heard in the Upper Tribunal, the child had been assessed for a sleep disorder and challenging behaviour with inattention and impulsivity.

The Upper Tribunal decided the SEND Tribunal’s decision involved an error on a point of law because it did not give sufficient reasons for its decision on refusing to recommend respite provision. This was because the SEND Tribunal had rejected the parents’ evidence from a social worker about this on the basis it related to needs when the child was to be educated in a school (which was no longer the case).  However, the SEND Tribunal had accepted a later addendum to this evidence, which addressed the new situation of the child being educated otherwise than in school, but made no mention of why this was also rejected in its decision.  Even though the SEND Tribunal’s reasons for a decision do not have to be perfect, they have to explain how it comes to its decision.  In rejecting one part of the evidence for a reason which didn't apply to the addendum evidence, the SEND Tribunal had failed to adequately explain why the addendum evidence was rejected in coming to the decision it made about the social care recommendation.

However, the decision was not set aside. The error related to a discretionary power to give a social care recommendation; even if the Tribunal had not erred, and given the recommendation, the LA was not bound to accept the recommendation.

What does this mean?

Specificity

The requirement for EHC plans to be specified is well-established.

However, whilst the judge in this case considered there might be an argument that the need for specificity could be heightened in respect of restraint-related provision (so that all professionals are left in no doubt as to what is, and is not, permitted, to reduce the risk of violating an individual’s rights) in fact, this wasn’t successfully made out by the parent in the appeal. 

The wording the SEND Tribunal had ordered was a reformulation of the wording from the parent’s own evidence and was, whilst not perfect, sufficiently clear. Furthermore, the parent had indicated the type of restraint techniques considered suitable, so the requirement to provide sufficient reasons was discharged by the Tribunal’s requirement for the additional support worker to have restraint training (albeit of an unspecified type).

If the use of restraint (or provision relating to it) is in dispute, and parents and young people are arguing that certain kinds of restraint should or should not be used, then they should submit evidence which supports their case/shows why they do not agree with the LA’s position.

SEND Tribunal procedure

This case reminds us that:

• The fact that the cause of a child or young person's difficulties might not have been diagnosed does not prevent them from being special educational needs for the purposes of an EHC plan.
• A party cannot argue that a Tribunal acted unfairly by accepting an argument made by, or presented in evidence submitted by, that party.
• If the SEND Tribunal’s order leads to a typo in an EHC plan, this may or may not amount to an error of law. It is unlikely to if the intended meaning is clear, despite the error, for example.
• The SEND Tribunal’s reasons do not have to be perfect. However, they do have to be sufficient to explain the decision made.
• The SEND Tribunal is required to address current circumstances. It references for example Gloucestershire County Council v EH (2017) UKUT 85 (AAC), which made clear that by the time of the hearing, the SEND Tribunal is required to consider the current circumstances, rather than the position when a parent or young person made their appeal.

Recommendations (and the powers of the Upper Tribunal to consider them)

Section 11(1) of the Tribunals, Courts and Enforcement Act 2007 provides that “the reference to a right of appeal is to a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal”. 

“Decision” can include a recommendation given by the SEND Tribunal in the exercise of its powers under the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017. Therefore, the Upper Tribunal has jurisdiction over these decisions.

The full decision for AA v Bristol City Council: [2025] UKUT 010 (AAC) is available online.