This case concerned a young woman of 19, O, who had (among other things) severe learning difficulties with significant speech, communication and language needs, significant social communication difficulties, global delay and emotional immaturity.

The appeal concerned the Education Health and Care Plan (“EHC Plan”). The key issue in dispute was whether O should be placed at a local FE college, P College (the LA’s choice), or at F Centre, an independent specialist college (the parents’ choice). The LA objected to F Centre because it would work out at around £30,000 per annum more expensive than attendance at P College.

O, nominally the appellant but in practice acting by her parents, appealed to the First-tier Tribunal and on 27 August 2015 was successful. The First-tier Tribunal referred to the wording in s. 19 of the Children and Families Act 2014, which states 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 SEN and Disability Code of Practice, which states, “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 local authority argued that whilst the F Centre was a suitable placement, a placement there would be an inefficient use of resources, because O’s needs could be met at P College, which would also be an appropriate placement.

In reviewing the decision made by the First-tier Tribunal, the case of R v Surrey County Council Education Committee ex parte P [1997] ELR 516 was referred to. The Upper Tribunal found that the First-tier Tribunal had given undue weight to the Code of Practice, instead of considering the appropriateness of the college named by the LA in the EHC plan.

With regards to s. 19 Children and Families Act 2014, the Upper Tribunal disagreed with the Frist-tier Tribunal’s interpretation. It said:

“The section, by requiring regard to be had to specified matters “in particular” is requiring those matters to be considered, with some thoroughness, but is not excluding consideration of other matters. In terms of its grammar, the punctuation indicates that s19(d) requires a local authority to have regard to “the need to support the child and his or her parent, or the young person,…”  The remainder of the sub-section is concerned with the purpose of the support:  “in order to facilitate the development of the child and young person and to help him or her achieve the best possible educational and other outcomes.”  “Achiev[ing] the best possible educational and other outcomes” is thus not a duty which the section imposes directly on the local authority nor even directly forms a mandatory consideration.”

This means that while the LA must consider how to achieve the best possible outcomes, they are allowed to take other matters into account, such as cost. They are under no duty to ensure that the best possible outcomes are in fact achieved.

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

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