Case summary

In this case, the parents of a child (G) sought permission to appeal the SEND Tribunal’s decision. Permission was refused by the SEND Tribunal, so the parents appealed to the Upper Tribunal (UT). Section F of G’s EHC plan was the focus of the appeal.

The UT decided the SEND Tribunal had failed to:

• adequately specify the level of 1:1 support required by G
• address disputed Speech and Language Therapy (SALT) provision, and
• properly explain the reasons for its decision

This case also identified some issues with how the SEND Tribunal weighed up competing evidence.

The case was sent back to the SEND Tribunal to be decided again by a different panel.

Specificity of 1:1 support

G’s parents had sought for 32.5 hours of 1:1 support to be specified in section F, whereas the LA’s proposed wording had been for a “high level of 1:1 support”. However, due to issues it saw with competing evidence, the SEND Tribunal decided against both parties’ proposed wording, instead ordering for section F to state “….a level of individualised appropriate support…..” This was particularly difficult to understand given the latest evidence available and the fact the LA had already accepted the level of 1:1 support G required was “high”.

The UT considered Worcestershire County Council v SE [2020] UKUT 217 (AAC) (the Worcestershire case), which confirmed the SEND Tribunal is entitled to use its expertise to decide on the proper balance between precision and flexibility. However, it decided the wording selected by the SEND Tribunal lacked the appropriate degree of specificity. In doing so, the judge reminded that “the wording of an EHC plan should be sufficiently specific so as to leave no room for doubt”.

SALT provision

The SEND Tribunal had decided against including wording proposed by G’s parents in respect of SALT assessments and interim provision until the assessments had been completed, but did not explain its reasons for this. When reviewing the parents’ initial application for permission to appeal the decision, the SEND Tribunal accepted this was an error of law but decided to refuse permission on the basis the amendment sought was not special educational provision, as it related purely to assessment.

The UT disagreed, finding it arguable that elements of the amendment sought may be special educational provision, because the text in question did describe some elements of provision to G, so was not limited to assessment only. The UT said the parties should have the opportunity to address a Tribunal on this at a hearing

Issues with the weighing of evidence and inadequate reasons for decision

In its reasons for decision, the SEND Tribunal stated only one professional had evidenced a requirement for 32.5 hours 1:1 support, and that the evidence provided by the SENCO at G’s school did not amount to either a “high level” of, or full-time, 1:1 support, but this was factually incorrect. The UT found the bundle had contained a provision map provided by G’s school, which had been referred to in the SENCO’s evidence and which confirmed G was in receipt of “32.5 hours specialist support”.

The UT found it impossible to understand how the provision map had been considered by the SEND Tribunal, or even if it had been considered at all. It confirmed that if the SEND Tribunal disagreed with the level of provision specified in the provision map (using its own expertise and/or on weighing it against other available evidence) it should have explained why.

Further, the SEND Tribunal had not been clear as to why it preferred evidence which lacked clarity over evidence which quantified the amount of support G required. Nor did it explain why it had given more weight to older evidence and less to newer evidence.

The UT concluded the SEND Tribunal’s decision did not sufficiently explain why it made its decision on the issue of the level of 1:1 support required. The SEND Tribunal had not adequately explained why it felt unable to quantify the level of 1:1 support required, nor did it explain why it had decided to reject the wording proposed by both parties and instead prepare its own. In deciding this, the UT made particular reference to Rule 5 of the Reasons for Decisions Practice Direction, which says that reasons “must always enable an appellate body to understand why the decision was reached, so that it is able to assess whether the decision involved the making of an error on a point of law”.

What does this mean?

This case helpfully reinforces that decisions made in the Worcestershire case (and in London Borough of Redbridge v HO (SEN) [2020] UKUT 323 (AAC)) do not allow for the routine preparation of vague EHC plans.

Whilst the SEND Tribunal is allowed to use its expertise to decide matters such as how to balance precision and flexibility, the wording of an EHC plan still needs be sufficiently specific so as to leave no room for doubt, as set out in L v Clarke and Somerset County Council [1998] ELR 129.

It also confirms the SEND Tribunal is required to properly explain:

• the reasons for its decision
• how it has weighed competing evidence to reach a decision on which evidence to prefer, and
• decisions to depart from/ disagree with evidence submitted

The full decision for Mrs & Mr D v Cheshire East Council: [2025] UKUT 187 (AAC) is available online.

For more information, please see our pages on Content of a plan, Mediation and SEND Tribunal Procedure and Challenging SEND Tribunal decisions.