Case overview

In this case, the child’s parents appealed to the SEND Tribunal about the contents of her EHC plan.

The SEND Tribunal decided the child’s special educational needs could not be met in a normal school day and required provision beyond the school day (an “extended day”) and a residential placement.

It also decided that the local authority’s (LA) choice of school could not meet her special educational needs, and ordered the LA to name the parent’s choice. Given that only the parent’s preferred school could meet her needs, the SEND Tribunal did not (and was not required to) compare the cost of it against the LA’s preferred setting.

The SEND Tribunal also ordered various changes to the special educational provision in section F of her EHC plan.

The LA appealed against the SEND Tribunal’s decision to the Upper Tribunal.

In the Upper Tribunal, the LA argued that the SEND Tribunal:

• didn’t follow the right approach when considering if an extended day and residential placement was required
• had not given adequate reasons in its decision
• had ordered some wording which was not specific enough, and
• needed to consider whether the parent’s choice of school would be unreasonable public expenditure and, instead of ordering the LA to name it in the child’s EHC plan, should have named a type of school or given the LA time to see if there was a more cost-effective option.

The LA’s arguments were unsuccessful. The Upper Tribunal decided that:

• The SEND Tribunal had followed the right approach – it considered what the child’s special educational needs were, then what special educational provision was required to meet them, and then the appropriate placement for her. 

• The SEND Tribunal’s reasons, including for ordering physiotherapy as special educational provision in section F, were adequate. There was “sufficient detail [in the evidence] to show that [the physiotherapy] would qualify as educational, albeit that it would benefit [the child’s] health also.” 

• The wording the SEND Tribunal ordered was specific enough in this particular child’s case and it could use its specialist expertise in deciding this. 

• The SEND Tribunal had not made an error of law when it ordered the parent’s preferred setting to be named. During the appeal the LA could have raised another school as an option to the SEND Tribunal, suggested a type of school be named, or requested more time to find another option before the SEND Tribunal made its decision, but it didn’t. The LA had overlooked its role in the appeal as it had duties to help the SEND Tribunal deal with the case justly and fairly, which include avoiding delay and cooperating. In doing so, it could have taken one of the above options but it didn’t (even though it had internal and external specialist expertise and support).

The Upper Tribunal’s decision explains the difference between the SEND Tribunal and Upper Tribunal’s remit. The SEND Tribunal can deal with issues of fact, law and judgment and the Upper Tribunal only deals with errors of law, and the decision gives some examples of what could be errors of law.

What does this mean?

An LA’s role in an appeal

An LA’s role in an appeal comes from its role under the Children and Families Act 2014 - to identify and make the special educational provision required by the child or young person. This role is added to (or enhanced) by the procedure rules that apply in the SEND Tribunal which mean LAs have duties to help the SEND Tribunal deal with appeals justly and fairly This includes avoiding delay, cooperating, and LAs placing all of their cards on the table during the appeal.

LAs need to properly prepare in appeals and should have the resources to do so. This may involve raising points or options with the SEND Tribunal during the appeal - rather than trying to introduce alternatives after the SEND Tribunal has made its decision to argue that it should have decided differently.

Use of the SEND Tribunal’s expertise

The SEND Tribunal can use its specialist expertise to decide the wording for an EHC plan so it’s clear to professionals delivering the provision what is required to make it workable.

Reasons must be ‘adequate’

The SEND Tribunal must give written reasons. These must be adequate. The SEND Tribunal’s reasons, read as a whole, need to show how it came to its decision and that it applied the correct law appropriately to the facts. Therefore:

• it does not have to give reasons that track the course of its fact-finding and decision-making. That may be a sensible in some, but not all, cases, and
• using inappropriate headings won’t necessarily mean the SEND Tribunal’s reasons are inadequate.

What can be special educational provision

As seen in earlier case law, physiotherapy and provision which supports education may, in specific cases, be special educational provision and also benefit a child’s health.

The full case report for London Borough of Hillingdon v AP and SP [2024] UKUT 388 (AAC) is available online.

For more information see what an EHC plan contains and other case law on what should be in Section F of an EHC plan, EHC plans need to be specific and clear and when should therapies be classed as special educational provision, and included in Section F?