TM & Anor v Liverpool City Council
[2024] UKUT 201 (AAC)
OO & Anor v London Borough of Bexley
2 August 2023
[2023] UKUT 223 (AAC)
Upper Tribunal
A family wanted their autistic son to go to a specific school, but a judge said no because it might affect other kids. A higher-up judge disagreed, saying the first judge didn't explain their decision well enough. The case is going back to a new judge for a better look.
Key Facts
- •Appeal concerns a 5-year-old boy, Q, with autism spectrum disorder, global developmental delay, and sensory processing difficulties.
- •Parents appealed the First-tier Tribunal's (FTT) decision regarding Q's EHC plan, specifically the named school (Shenstone School).
- •The FTT dismissed the appeal based on Section 39(4)(b)(i) of the Children and Families Act 2014, concluding Q's attendance at the parents' preferred school (Woodside Academy) would be incompatible with the provision of efficient education for other pupils.
- •Woodside Academy's headteacher testified about space limitations and Q's significant support needs.
Legal Principles
Section 39(4)(b)(i) of the Children and Families Act 2014: A school named in an EHC plan can be changed if the child's attendance would be incompatible with the provision of efficient education for others.
Children and Families Act 2014
The 'efficient education' standard requires a suitable and appropriate education, not the highest possible standard, but above a certain threshold.
NA v LB Barnet (SEN) [2010] UKUT 180 (AAC) and SEND Code of Practice 9.79
Outcomes
The Upper Tribunal (UT) allowed the appeal.
The FTT's decision lacked sufficient findings of fact and reasons to justify its conclusion under Section 39(4)(b)(i). The UT found the FTT did not adequately explain why Q's attendance would inevitably reduce the quality of education for other pupils below the 'efficient education' standard.
The FTT's decision was set aside and the case was remitted to a fresh panel.
The error of law was material, and a fresh panel is better placed to make detailed findings of fact necessary to apply the statutory test correctly.