London Borough of Camden v KT
[2023] UKUT 225 (AAC)
EM v Royal Borough of Windsor and Maidenhead
28 May 2024
[2024] UKUT 317 (AAC)
Upper Tribunal
A young person with autism had their special education plan ended by the local council. A judge agreed that the council should not have ended the plan because the people who made the decision didn't use the correct rules and didn't properly explain why they made that decision. So, the decision will be looked at again by a different group of people.
Key Facts
- •EM, born September 11, 2004, has Autism Spectrum Disorder (ASD) and speech/language difficulties.
- •Royal Borough of Windsor and Maidenhead ceased maintaining EM's EHC Plan on May 26, 2022.
- •The First-tier Tribunal (FtT) upheld the local authority's decision.
- •EM attended a special school but was deemed no longer suitable for that environment.
- •EM receives 48 hours/week of adult social care, including attendance at an activity center.
- •Expert reports from various professionals were submitted to the FtT.
Legal Principles
Circumstances where maintaining an EHC plan is no longer necessary include when the child no longer requires the specified special educational provision.
Section 45(2), Children and Families Act 2014
When determining if a young person over 18 no longer needs special educational provision, the local authority must consider if the plan's educational/training outcomes were achieved.
Section 45(3), Children and Families Act 2014
A child has special educational needs if they have a learning difficulty/disability requiring special educational provision.
Section 20(1), Children and Families Act 2014
Special educational provision is defined as educational or training provision additional to or different from that generally provided to others of the same age. Healthcare or social care provision that educates or trains is also considered special educational provision.
Section 21, Children and Families Act 2014
The FtT must consider relevant provisions of the SEND Code of Practice.
Section 77(6), Children and Families Act 2014
Necessity of maintaining an EHC plan is judged practically, considering access to provision, not just theoretical attainment.
Buckinghamshire County Council v SJ [2016] UKUT 0254 (AAC)
In deciding whether to cease maintaining an EHC Plan, a local authority should ask itself whether a young person would meet the test for preparing and maintaining an EHC Plan in the first instance.
B & M v Cheshire East Council [2018] UKUT 232 (AAC)
FtT decisions must include an outline of the case, factual conclusions, and reasons for the decision.
H v East Sussex CC [2009] EWCA Civ 249
Outcomes
Appeal allowed.
The FtT applied the incorrect legal test when determining whether to cease maintaining EM's EHC plan and did not adequately explain their reasoning.
FtT decision set aside.
Error on a point of law; inadequate reasons; failure to address key issues.
Appeal remitted to the FtT for re-determination.
To apply the correct legal test and provide adequate reasons.