A parent objected to the terms of a Statement of special educational needs made in respect his child, C, aged 16.  C had suffered from emotional and behavioural difficulties since primary school resulting in his exclusion from two mainstream secondary schools. The parent’s appeal to the First-tier Tribunal over the terms of the Statement resulted in minor amendments being made. A subsequent appeal was made to the High Court, arguing that the First-tier Tribunal had erred in law in reaching its decision that the appropriate placement for C was at a pupil referral unit (PRU).

The parent argued that the First-tier Tribunal had erred in:

(1) failing to record with sufficient, or any, specificity the provision of an occupational therapist necessary to meet C's needs in relation to his immature motor control affected by his dyspraxia,

(2) failing to determine whether it was appropriate for C to follow the whole of the National Curriculum, and

(3) failing to change the school named in the Statement, attributable to First-tier Tribunal's misinterpretation of its powers and a failure to take into account a relevant consideration, namely that the PRU could not in itself fully meet C's needs. The parent submitted that the finding that the PRU would be able to meet the provision identified by the First-tier Tribunal was inconsistent with the known facts about the PRU and was therefore clearly wrong.

The High Court allowed the parent’s appeal. On each of the points above it decided that:

(1) Given that the Education Act 1996 required a high degree of specificity, the First-tier Tribunal's failure to refer to an occupational therapist amounted to a failure to include specific provision that ought to have been included.

(2) The First-tier Tribunal found that it had insufficient material to decide whether the National Curriculum should or should not be disapplied in relation to C and concluded that the Statement should include provision for an assessment to be made to determine this. However, the First-tier Tribunal's responsibility, on appeal, was to determine the needs of the child. (If they did not have enough information to decide, and the information was vital to the case, they should really have adjourned the hearing and directed the parties to obtain further evidence.) Accordingly, the First-tier Tribunal should not have simply written in to the Statement that an assessment would be carried out by someone else, particularly because the parents would not have been able to appeal against this later assessment.

(3) Whilst the First-tier Tribunal could not be said to have misinterpreted its powers, there were concerns in relation to the First-tier Tribunal's approach to the issue of C's placement at the PRU. The PRU could not in itself be considered capable of meeting the required provision of a broad and balanced curriculum because the PRU offered only core National Curriculum subjects, had no pupils of the same age as C and could not therefore meet the required provision of access to an appropriate peer group. Furthermore it could not meet the provision that C be taught in small groups of pupils with similar problems to C. That latter provision could only be met by the PRU sending C to an unidentified further education college for an undetermined proportion of his time. Given those grey areas it was unclear how the First-tier Tribunal could have been satisfied, on the material before it, that C's Statemented requirements could be met by the PRU.

Accordingly, the First-tier Tribunal had erred in law.

Although this case deals with Statements, the same considerations apply to EHC plans – they must be specific, and the placement named in Section I must be able to meet the needs and make the provision specified in Sections B and F.

No case report is available online.

For more information, see the sections on what an EHC plan should contain and choosing a school or other setting in an EHC plan.