Case overview

This case concerned a young person with complex special educational needs (SEN) who had an education, health and care (EHC) plan.

Her parents wanted her to go to an independent specialist college but the local authority (LA) objected based on cost. The parents’ preferred college would cost around £30,000 per year more than the further education (FE) college the LA preferred (which could also meet her needs).

On appeal, the SEND Tribunal agreed that the independent specialist college should be named. It referred to the wording in section 19 of the Children and Families Act (CFA) 2014, which says that LAs: 

“must have regard to… the need to support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational  and other outcomes”.

It also gave significant weight to paragraph 8.30 of the Code, which says:

“All students aged 16 to 19 (and, where they will have an EHC plan, up to the age of 25) should follow a coherent study programme which provides stretch and progression and enables them to achieve the best possible outcomes in adult life”.

The LA appealed to the Upper Tribunal. The LA argued that the parents’ preferred college was a suitable placement but a placement there would be an inefficient use of resources, because the young person’s needs could also be met at the FE college.

The Upper Tribunal considered an earlier case called R v Surrey County Council Education Committee ex parte P [1997] ELR 516,which confirms there is no duty to provide a child with the best possible education or to educate them to their maximum potential. Due to this, if both settings can meet needs, an LA can decide to send a child to a cheaper (yet still suitable) setting. However, the cost of the placement is only relevant if both settings can meet needs (because cost cannot be used to justify sending a child or young person to a setting which can’t meet their needs).

The Upper Tribunal found that the SEND Tribunal had given too much weight to the Code, instead of considering the appropriateness of the FE college.

The Upper Tribunal also looked at section 19 CFA 2014 and said the SEND Tribunal had not understood it correctly – there is no duty on the LA to make sure a child or young person actually achieves the best possible educational and other outcomes.

What does this mean?

This means that while the LA must consider how to achieve the best possible outcomes under section 19 CFA 2014, it is allowed to take other matters into account, such as cost. There is no duty on it to make sure that the best possible outcomes are actually achieved.

This case also confirms that guidance does not override or trump law.

The full case report for Devon County Council v OH [2016] UKUT 292 can be viewed online.

For more information, please see our pages on choosing a school when you have an EHC plan.