Case summary

This case concerned a child with special educational needs (SEN). Their parent wanted the EHC plan to name a non-maintained special school, where their child (who was out of school) had been attending weekly enrichment sessions.

When making decisions under the Children and Families Act (CFA) 2014 an LA must follow the law and have regard to the child and their parent’s, or the young person’s, views, wishes and feelings (under section 19 CFA 2014). This includes decisions about which school to name in an EHC plan.

The LA refused to name the parents’ choice of school because it said this would be incompatible with the efficient use of resources (section 39(4)(b)(ii) of the CFA 2014), and the parents appealed Sections B, F and I in the SEND Tribunal.

During the appeal the LA proposed naming a maintained mainstream primary school with a special resourced provision on the basis that it considered the school was appropriate for the child.

The SEND Tribunal agreed with the LA’s proposal to name the mainstream school. The SEND Tribunal said there was a large cost difference between the two placements and the test of incompatibility with the efficient use of resources was met.

It went on to consider the principle that ‘pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure’ under section 9 of the Education Act 1996.

The SEND Tribunal considered the parents’ and the child’s views about the non-maintained special school but still found an incompatibility with the avoidance of unreasonable public expenditure.

The parents successfully appealed to the Upper Tribunal. The Upper Tribunal said the SEND Tribunal had made an error of law.

The SEND Tribunal had considered views under section 9 of the Education Act 1996, but not views, wishes and feelings under section 19 CFA 2014.  

The SEND Tribunal did not ask the parents or the child about their views or feelings on the child attending the mainstream school, did not consider the child’s opposition to or feelings about attending that school, nor what was needed to overcome that opposition.

On the facts of this case, this failure was an error of law:

• the child had briefly attended the hearing and the SEND Tribunal had not tried to find out his feelings on the mainstream school
• the SEND Tribunal appeal bundle included nothing specifically as to the child’s feelings about the mainstream school
• fresh evidence allowed in the Upper Tribunal appeal made very clear the child’s strong oppositional feelings about that school and the risk to their wellbeing if required to attend, and
• an LA’s response to an appeal must include “the views of the child about the issues raised by the proceedings”. This LA’s response included some views of the child but not on the mainstream school specifically, as the LA didn’t propose this school until after the response, and didn’t get the child’s views on that.

The error was a material one, as the strength of feeling was such that it may have had an impact on the decision as to whether the mainstream school was appropriate.

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

What does this mean?

Views, wishes and feelings must be considered

This means the LA/ SEND Tribunal must take into account how a child or young person feels about a placement when deciding whether a particular nursery, school or college is appropriate.

Section 19 CFA 2014 requires an LA (or the SEND Tribunal on appeal) to have regard to the child’s and their parents’, or the young person’s views, wishes and feelings.

The older the child and the more mature the child, the greater the weight that should be attached to those views, wishes and feelings.

This does not mean the LA or SEND Tribunal has to agree with those views, wishes and feelings. It also does not mean they can be totally disregarded.

If the SEND Tribunal acts in accordance with its procedural rules, including making sure cases are managed fairly and justly, it will be acting in the spirit of section 19 CFA 2014. However, if the SEND Tribunal does not have information on a child or young person’s views, wishes and feelings, that can (depending on the facts) mean its decision is unlawful.

Finding out the views, wishes and feelings of the child or young person

Children and young people may potentially have strong and upsetting feelings about attending a particular nursery, school or college. They may also need to communicate these in a particular way due to their SEN.

Yet their views, wishes and feelings are important.

These should be identified by the LA early on in the appeal process and gathered in a sensitive way with the welfare of the child or young person a priority.

Parents can also submit their child’s views, wishes and feelings to the SEND Tribunal, for example in a video, drawing, letter or voice recording.

In some cases, it might be appropriate for views, wishes and feelings to be gathered by an educational psychologist.

There isn’t a set way these views, wishes and feelings should be gathered. However guidance on child, vulnerable adult and sensitive witnesses (particularly paragraphs 6 and 7) gives guidance to the SEND Tribunal on supporting a child or vulnerable adult to provide evidence.

Section 9 Education Act 1996

This case reminds us that even if there is a lawful reason to refuse to name a particular nursery, school or college in an EHC plan under section 39(4) CFA 2014, the LA/ SEND Tribunal must go on to consider the general principle contained in section 9 Education Act 1996 when making placement decisions for ‘pupils’, and whether the parents’ preferred setting should still be named.

This requires a holistic approach, considering wider health and social care advantages and costs (meaning the total costs of both placements to the public purse) on both sides, as well as educational factors.

The full decision for TM and SM v Liverpool City Council [2024] UKUT 201 (AAC) is available online.

For more information, please see our pages on appealing to the SEND Tribunal.