OO & Anor v London Borough of Bexley
[2023] UKUT 223 (AAC)
TM & Anor v Liverpool City Council
11 July 2024
[2024] UKUT 201 (AAC)
Upper Tribunal
A boy with autism didn't want to go to the school the council chose for him. The first court didn't listen enough to the boy's feelings. A higher court said the first court made a mistake and sent the case back to be decided again by different judges.
Key Facts
- •Appeal concerned an EHC plan for a 7-year-old boy, S, with ASD, sensory processing difficulties, DCD, and mild CVI.
- •Appeal focused on Sections B, F, and I of the EHC plan, specifically the school named in Section I.
- •Respondent favored School X (maintained mainstream school with special resources), while Appellants preferred School Y (non-maintained special school).
- •Tribunal dismissed the appeal, citing cost difference as incompatible with efficient resource use (s39(4)(b)(ii) CFA 2014).
- •Appellants argued the tribunal failed to adequately consider S's views and feelings, particularly his strong negative reaction to School X, evidenced by a post-hearing letter from a registrar in developmental paediatrics.
- •The Upper Tribunal granted permission to appeal, considering the registrar's letter as potentially admissible fresh evidence under Ladd v Marshall criteria.
Legal Principles
Local authorities and tribunals must have regard to a child's views, wishes, and feelings (s19 CFA 2014).
S v Worcestershire County Council (SEN) [2017] UKUT 0092 (AAC), M & M v West Sussex CC (SEN) [2018] UKUT 347 (AAC)
Tribunals have an inquisitorial duty to ensure they have necessary information to decide appeals and cannot rely solely on evidence adduced by parties.
W v Gloucestershire CC [2001] EWHC Admin 481
Criteria for admitting fresh evidence on appeal (Ladd v Marshall): (1) Evidence could not have been obtained with reasonable diligence; (2) Evidence would likely influence the result; (3) Evidence is apparently credible.
Ladd v Marshall [1954] EWCA Civ 1
A child's views are not determinative but must be considered, with the weight given increasing with age and maturity.
West Sussex County Council v ND [2010] UKUT 349 (AAC)
Outcomes
Appeal allowed.
The First-tier Tribunal erred in law by not sufficiently considering S's views, wishes, and feelings regarding School X, particularly his strong negative reaction as evidenced by the post-hearing medical letter. The Tribunal failed to adequately consider S's feelings about the suitability of School X, despite the potential materiality of this information given the severity of his reaction.
First-tier Tribunal's decision set aside as respects School X.
The error of law was material to the decision regarding School X and therefore it was necessary to set the decision aside in respect of this aspect of the appeal.
Case remitted to a fresh panel of the First-tier Tribunal for reconsideration of the Section I appeal.
It would be unjust for the Upper Tribunal to remake the decision, given the lack of firsthand evidence. A fresh panel ensures an open mind and impartiality.