Case overview

A child’s parents appealed to the Upper Tribunal (UT) after the SEND Tribunal decided not to name a private school in section I of his education, health and care (EHC plan). The local authority (LA) had placed him at a mainstream primary school (referred to as CPS), where he attended a specialist base in the mornings and mainstream classes in the afternoons. The SEND Tribunal decided CPS was appropriate and that the costs of the private school were unreasonable public expenditure.

The UT decided the SEND Tribunal had fully taken into account all the expert evidence on CPS, stating that addressing a witness’s evidence does not mean agreeing with it. However, it also decided the SEND Tribunal had not properly explained its reasons for deciding CPS could provide the child with a “low arousal environment” as required by section F of his EHC plan. This was an “error of law” (a mistake).

The UT also considered whether the base at CPS should be specified in the child’s EHC plan, since he would receive some of his special educational provision there. However, the UT said it is the provision itself which needs to be described in section F, not where it will be delivered. In this case, the LA had not argued that the child needed to be taught in a base; it had said he needed small group teaching of core subjects. This could be accommodated in CPS at the base and also at the parents’ preferred school through its small class sizes.

Finally, the SEND Tribunal had miscalculated the difference in costs between the two placements, which might have meant it would have made a different decision on whether the cost of the private school was unreasonable public expenditure under section 9 of the Education Act 1996. This was another error of law.

The UT set aside the send Tribunal’s decision, which means the decision was sent back to the SEND Tribunal to be made again.

What does this mean?

For a school to be considered appropriate, it must be able to provide each and every item of special educational provision in Section F of the child or young person’s EHC plan. The LA may have to provide extra funding for this. If the LA’s proposed school can’t provide even one of them, then it’s not appropriate so cannot lawfully be named in the EHC plan. 

The SEND Tribunal makes its findings on a balance of probabilities and it must make clear findings of fact, with sufficient reasons for its decision.

Although the UT’s comments on how to properly describe the special educational provision in Section F of the EHC plan were non-binding, it remains the case that:

• EHC plans have to be written in order. Firstly, each and every identified special educational need the child or young person has must be specified in section B; then section F must set out special educational provision to meet each and every one of those special educational needs. Only then can it be decided what would be the appropriate setting to name in section I.
• If you would like your child to attend a specialist unit within a mainstream setting, it is important to make sure that Section F clearly specifies what special educational provision the unit provides. Section I should then name the mainstream setting where the unit is located. Section I would not name the unit itself, unless it was a school in its own right.

The full decision is available to read online.

Although this judgement uses the word “suitability” when referring to consideration of the setting named by the LA in the EHC plan, it should have referred to whether this setting was “appropriate”. For more on the law that applies to naming a setting in an EHC plan see our choosing a school/college or appealing against the setting named in an EHC plan webpages.

We also have a specific page on asking a local authority to name a unit or resource base in a child’s EHC plan.