Key Issue: Proper Application of Legal Test for Appropriateness of School in EHC Plan for Children with SEN

Citation: [2023] UKUT 281 (AAC)
Judgment on

Introduction

The recent decision in the case of LC and RC v Hampshire County Council [2023] UKUT 281 (AAC) before the Upper Tribunal (Administrative Appeals Chamber) raises significant issues regarding the law on education, specifically in relation to children with special educational needs (SEN). The case specifically dealt with an appeal against the decisions of the First-tier Tribunal within the context of the Children and Families Act 2014 and the Special Educational Needs and Disability Regulations 2014 (the SEND Regulations). The primary focus of the dispute was the appropriateness of a school named in a child’s Education, Health, and Care (EHC) plan.

Key Facts

The appellants, LC and RC, are the parents of a 13-year-old boy, “O”, who has an EHC plan made by Hampshire County Council. The appellants challenged the specific educational needs, provision, and the named school in O’s plan. The initial tribunal allowed some amendments to O’s plan but upheld the naming of C School, an independent SEMH (Social, Emotional, and Mental Health) school, in Section I of the plan. The appellants preferred no school to be named and instead sought education for O otherwise than in a school. Unrepresented at the tribunal hearing, they later secured legal representation for the Upper Tribunal proceedings, arguing that the first tribunal erred in law in its decision regarding Section I.

The principal legal issue revolved around whether the First-tier Tribunal applied the correct legal test when considering the appropriateness of C School in Section I of O’s EHC plan. The central statutes in consideration were Sections 39(4)(a) and 40(2)(a) of the Children and Families Act 2014, which concern the suitability and appropriateness of a school for a child with an EHC plan, respectively.

The Upper Tribunal, led by Judge Zachary Citron, acknowledged that the First-tier Tribunal applied the suitability test under s39(4)(a) (suitability for the child’s “age, ability, aptitude or special educational needs”) instead of the appropriateness test under s40(2)(a). The latter requires a more holistic view, considering whether the school named in the EHC plan is appropriate for the child’s needs.

Another key point of law was whether the tribunal adequality considered and articulated the appellants’ contention relating to O potentially becoming a “target” in the SEMH environment of C School, as per evidence from Mr M, an occupational therapist.

The discussion further included concepts from the Education Act 1996, particularly with regards to what constitutes ‘attendance’ at a school.

Furthermore, the case reference to Isle of Wight Council v Platt [2017] UKSC 28, [2017] 1 WLR 1441 was also invoked but ultimately not relied upon in the decision.

Outcomes

The Upper Tribunal ultimately dismissed the appeal. It found that despite the First-tier Tribunal’s error regarding the application of the legal test, the error was not material to the outcome. The Tribunal sufficiently considered the risks of O attending C School, which it mitigated through a prospective ‘transition’ approach and acknowledged the capacity of C School to accommodate children with needs similar to those of O. The Tribunal’s reasoning was also held to be adequately explained in addressing the welfare and safety risks raised by Mr M’s evidence, negating the materiality of its application of the wrong suitability test.

As for the issue regarding what constitutes attendance at a school, while the argument was raised, it was not pursued by the appellants, and the Upper Tribunal refrained from providing a definitive view on this matter.

Conclusion

The LC and RC v Hampshire County Council case underscores the intricate relationship between the legal provisions governing the appropriateness and suitability of educational settings for children with SEN, as defined within their EHC plans. It highlights that an error in the legal test application may not necessarily vitiate the tribunal’s decision, provided the error does not affect the outcome materially. The case also demonstrates the tribunal’s role in the assessment and tailoring of education provisions that suit the specific and complex needs of SEN children, a task that requires both meticulous attention to the child’s circumstances and a thorough understanding of the legal framework governing SEN provision.