London Borough of Camden v KT
[2023] UKUT 225 (AAC)
Westminster City Council v First Tier Tribunal (HESC)
12 July 2023
[2023] UKUT 177 (AAC)
Upper Tribunal
A council disagreed with a decision to give a young person with autism extra support (mentoring). A judge reviewed this decision and found that the support was needed, both during school and holidays, to help the young person learn and cope, even though part of it might help the family too. The council's challenge was not successful.
Key Facts
- •Westminster City Council (Council) appealed a First-tier Tribunal (FTT) decision concerning the Education, Health and Care Plan (EHCP) for A (Interested Party), a 22-year-old with autism.
- •The FTT decision awarded A 5 hours of daily mentoring support, classifying it as special educational provision in Section F of the EHCP, despite some overlap with existing social care provision in Section H.
- •The Council challenged the FTT's decision on two grounds: (1) the classification of mentoring support as special educational provision during term time; (2) the provision of mentoring support during non-term time periods.
- •The Council's initial appeal to the Upper Tribunal (UT) was rejected because the FTT's decision was an 'excluded decision' under the Tribunals, Courts and Enforcement Act 2007.
- •The Council then sought judicial review of the FTT decision by the UT.
Legal Principles
The statutory power to review a decision is limited to reviewing a decision 'on a matter in a case', not the whole decision. The FTT must define the scope of the review.
Point West GR Ltd v Bassi & Ors [2020] EWCA Civ 795
On an application for permission to bring judicial review proceedings, the test is whether there is an arguable ground for judicial review having a realistic prospect of success.
Sharma v. Brown-Antoine [2007] 1 WLR 780 and Wasif v. Secretary of State for the Home Department [2016] EWCA Civ 82
For provision to be specified in Section F of an EHCP, it must be direct special educational provision under s.21(1) or deemed special educational provision under s.21(5) of the Children and Families Act 2014.
East Sussex County Council v TW [2016] UKUT 528 (AAC)
Facilitating access to education is not, without more, sufficient to constitute special educational provision.
East Sussex County Council v KS [2017] UKUT 275 (AAC) and East Sussex County Council v JC [2018] UKUT 81 (AAC)
A need for consistency in support does not automatically equate to a need for special educational provision beyond the school day or term.
Hampshire CC v JP [2009] UKUT 239 (AAC) and London Borough of Hammersmith and Fulham v JH [2012] UKUT 328 (AAC)
The Upper Tribunal will seldom interfere with review decisions, especially in judicial reviews of review decisions, unless there is a clear legal error.
RB v FTT [2010] UKUT 160 (AAC)
Special educational provision can be educational provision (s.21(1)) even if it doesn't directly educate or train (s.21(5)).
EAM v East Sussex CC [2022] UKUT 193 (AAC)
Whether a provision is 'educational provision' is a matter for the Tribunal's judgment, not a pure question of law.
LB Bromley v SENT [1999] ELR 260
Outcomes
Permission to appeal was refused on Ground 1 (term-time mentoring as special educational provision).
The Council raised this point too late, potentially affecting the course of evidence if raised earlier. The Tribunal's conclusion was lawful, even if it didn't explicitly state whether it applied s.21(1) or s.21(5).
Permission to appeal was granted on Ground 2 (non-term time mentoring as special educational provision), but the appeal was dismissed.
While a need for consistent support alone isn't sufficient for special educational provision, the Tribunal's decision was lawful given the evidence of A's needs, including managing anxiety and developing executive functioning skills. The need for consistent development, not just provision, was the key factor.