Case overview

In this case, the parents of a primary school aged child were, amongst other things, asking for a section 41 independent special school to be named in Section I of their child’s EHC plan. The local authority (LA) wanted to name a specialist communication and interaction hub. The hub was operated by a maintained special school but based on the site of a maintained mainstream primary school.

The arrangement was unusual because the pupils were on the roll of the special school and the staff in the hub were employed and managed by the special school but the pupils in the hub would wear the uniform of the mainstream primary school and join in with some of the classes and activities of the mainstream primary school.

The SEND Tribunal decided that both settings were suitable and that, because of the cost difference, the parent’s choice could be rejected. Therefore, the Tribunal ordered that Section I should state:

Name of Educational Placement: X Special School Specialist Hub at Y Primary School. Type of Placement: Special school (with a specialist hub within a mainstream school).

The parents appealed and argued that, following NN -v- Cheshire East Council (SEN) [2021] UKUT 220 (AAC):

• it was not lawful for a hub to be named in Section I
• that only a school or other institution can be named in Section I, and
• that anything that is added to that, for whatever reason, was unlawful.

The Upper Tribunal decided that the SEND Tribunal had not made an error in deciding that the hub was the appropriate placement for the child. Therefore, it had to order that the special school it was a part of was named in Section I.

The Upper Tribunal considered East Sussex County Council v TW [2016] UKUT 0528 (AAC), Derbyshire County Council v EM and DM (SEN) [2019] UKUT 240 (AAC), and NN -v- Cheshire East Council (SEN) [2021] UKUT 220 (AAC) – about what can and cannot be written in Section I of an EHC plan.  It decided that those cases were decided correctly on their facts but that:

“[…] those cases were not dealing with the issue that arises in the present case, and, insofar as what they said about the limits of Section I went beyond what was strictly necessary to decide those cases, I am free to depart from them.” (para 54, Stout J)

The Upper Tribunal agreed with the SEND Tribunal’s reasoning that the hub was not a separate school or institution that was capable of being named in Section I (a decision which the Upper Tribunal said would be for the SEND Tribunal to make based on all the facts and the legal definitions of a school). However, where a hub is not a separate entity then it can be considered part of the way the school will make the provision specified for the child in the EHC plan and if the provision made by or in a hub is special educational provision required by the child then it must be specified in Section F – whether because it would be required wherever the child was placed or because it was required to meet their needs at a particular school or other institution.

The Upper Tribunal noted that there were objections to specifying a provider in Section F.  For example, that it might make an EHC plan unworkable or that it’s typically preferable for Section F of a plan to be transferable (for example, to another setting or LA). Whilst agreeing this is sensible as a general rule, the Upper Tribunal said it does not mean that in all cases it would be unlawful to do so where that is what is required to identify what’s reasonably required with “sufficient specificity” (para 62, Stout J).

Therefore, it was not unlawful for the SEND Tribunal to direct the hub to be named in Section F in this case: it had determined on the facts that it was necessary to give the plan the right degree of specificity.

The final point was the reference to the hub ordered in Section I. The Upper Tribunal determined that Regulation 12 of the SEN and Disability Regulations 2014 (as amended) does not make it unlawful to include information about a child or young person’s special educational needs or special educational provision that goes beyond the matters identified in that regulation. In addition, whether the parties agree to the inclusion of a reference to a hub or not, in circumstances where it’s considered necessary to do this (because without this the plan would be in some way deficient) it is a consequential amendment the Tribunal has the power to order under Regulation 43 of the SEN and Disability Regulations 2014 (as amended).

What does this mean?

1. Parties can agree to include the name of a hub in Section I (using closed brackets after the name of the school/other institution) - and where this agreement happens, the SEND Tribunal  can order the agreed wording into Section I. It can do this under  Regulation 43 of The Special Educational Needs and Disability Regulations 2014 (The SEND Regulations 2014).
2. Even if the parties don’t agree, the SEND Tribunal can still (under SEND Regulation 43) order the name of a hub to be included in this way as something called a “consequential amendment”. It may decide to do this if the EHC plan would be deficient without doing so.
3. The name of a hub (and possibly even providers of other sorts of special educational provision) can be included in Section F, where that is needed to make sure the provision reasonably required is specific enough.
4. The SEND Tribunal can also order it in for this reason.

Read the full case.