Devon County Council HS 3337 2015
| Jurisdiction | UK Non-devolved |
| Judge | Judge C G Ward |
| Judgment Date | 17 June 2016 |
| Neutral Citation | 2016 UKUT 292 AAC |
| Subject Matter | Special educational needs |
| Respondent | OH (SEN) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HS 3337 2015 |
| Appellant | Devon County Council |
Attendances:
For the Appellant: Mr Jack Anderson, instructed by County Solicitor
For the Respondent Mr Eric Metcalfe, instructed by Maxwell Gillott
Decision: The appeal is allowed. The decision of the First-tier Tribunal sitting at Exeter on 20 August 2015 under reference EH878/15/00004 involved the making of an error of law.
Each party may, within 14 days of the date of the letter issuing this decision, file and serve representations as to whether or not the decision of the First-tier Tribunal should be set aside and if so, what directions, if any, should be given.
REASONS FOR DECISION
1. This appeal concerns the Education Health and Care Plan (“EHC Plan”) of O, a young woman aged 19 at the time it was made on 1 May 2015. The key issue in dispute was whether O should be placed at a local FE college, P College, or at F Centre, an independent specialist college which it is common ground is, and was at the material time, a “special post 16 institution” approved by the Secretary of State under section 41 of the Children and Families Act 2014 (“the 2014 Act”). O, nominally the appellant but in practice acting by her parents, appealed to the First-tier Tribunal and on 27 August 2015 was successful. No order for suspension was applied for and so far as I am aware the order of the tribunal is being complied with.
2. Permission to appeal was refused by the First-tier Tribunal by a decision communicated on 12 October 2015 and the local authority in due course renewed its application to the Upper Tribunal, which on 26 November I granted. The case came before me at an oral hearing in London on 29 February 2016, following which further written submissions were directed. I am grateful to both counsel for their oral and written submissions.
3. In the course of the Upper Tribunal proceedings, a witness statement by a Ms D, Head of Education at the F Centre, was submitted on behalf of O. This was not evidence which had been before the First-tier Tribunal and in deciding whether or not the tribunal erred in law, I disregard it.
4. O has (among other things) severe learning difficulties with significant speech, communication and language needs, significant social communication difficulties, global delay and emotional immaturity.
5. O was described by a witness as “mad about horses” and it is this that lies at the heart of the dispute. According to a witness, whose evidence the tribunal appears to have implicitly accepted, O had wanted to work with horses for many years and had shown great dedication in travelling long distances to help in stables and to compete. Her CV indicated that she had been very actively involved in riding, competing successfully at national level for a number of years.
6. At P College, a programme for O would include one day involving land-based studies, which would include work with equines but other things besides; one day involved with animal care; one day of work experience perhaps with an organisation that provided horses, albeit quietly behaved ones to meet the needs of young people with disabilities; one day of personal and social development including health, independent living and employment; and participation in the activities of a local not-for-profit organisation focussed on production of crops and associated arts and crafts. There are no horses on site at P College.
7. At the F Centre however, the course would be “Further Education through Horsemastership”. Evidence was given that this was an accredited equivalent to an NVQ in Horse Care Level 2. In particular, students were responsible for the daily care of horses. Evidence was given that at the end of the course O would be in a position where she “should be able to obtain employment (perhaps paid employment).” In cross-examination however, it was established that the number of students of the F Centre who had progressed to employment in the field over the last three years was one.
8. The local authority’s position was and is that whilst the F Centre is accepted to be a suitable placement, a placement there would be an inefficient use of resources, because O’s needs could be met at P College, which would be an appropriate placement.
9. The tribunal had only limited evidence on costs, but in general terms it appears that attendance at F Centre would work out at around £30,000 (I assume per annum) more expensive than attendance at P College.
10. The tribunal’s conclusion was that whereas F Centre would be an appropriate placement for O, P College would not be and so, not needing to conduct a balancing exercise, it did not go on to consider costs in more detail.
The law
11. Section 37 of the 2014 Act creates the duty to prepare and maintain an EHC Plan and sets out, in outline, what must, and what may, be included in such a Plan. Sub-section (2) explains that an EHC Plan is a plan specifying (among other matters) “(a) the …young person’s special educational needs; (b) the outcomes sought for…her; (c) the special educational provision required by…her.” Sub-section (4) confers a power to “make provision about the preparation, content, maintenance, amendment and disclosure of EHC plans.” Pursuant to that sub-section, regulation 12 of the Special Educational Needs and Disability Regulations 2014/1530 (“the Regulations”) provides as follows:
“12. Form of EHC plan
(1) When preparing an EHC plan a local authority must set out—
(a) the views, interests and aspirations of the child and his parents or the young person (section A);
(b) the child or young person's special educational needs (section B);
(c) the child or young person's health care needs which relate to their special educational needs (section C);
(d) the child or young person's social care needs which relate to their special educational needs or to a disability (section D);
(e) the outcomes sought for him or her (section E);
(f) the special educational provision required by the child or young person (section F);
(g) any health care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having special educational needs (section G);
(h)
(i) any social care provision which must be made for the child or young person as a result of section 2 of the Chronically Sick and Disabled Persons Act 1970 (section H1);
(ii) any other social care provision reasonably required by the learning difficulties or disabilities which result in the child or young person having special educational needs (section H2);
(i) the name of the school, maintained nursery school, post-16 institution or other institution to be attended by the child or young person and the type of that institution or, where the name of a school or other institution is not specified in the EHC plan, the type of school or other institution to be attended by the child or young person (section I); and
(j) where any special educational provision is to be secured by a direct payment, the special educational needs and outcomes to be met by the direct payment (section J),
and each section must be separately identified.
(2) The health care provision specified in the EHC Plan in accordance with paragraph (1)(g) must be agreed by the responsible commissioning body.
(3) Where the child or young person is in or beyond year 9, the EHC plan must include within the special educational provision, health care provision and social care provision specified, provision to assist the child or young person in preparation for adulthood and independent living.
(4) The advice and information obtained in accordance with regulation 6(1) must be set out in appendices to the EHC plan (section K).”
The right of appeal against the content of an EHC Plan is conferred by section 51(2)(c) and exists only in respect of certain matters: in essence, the content of sections B, F and I.
12. The naming of a school or other institution where a request has been made for this is dealt with in section 39. The local authority is required to consult with those with responsibility for the school or other institution concerned and then is required to secure that the EHC Plan names the school or other institution requested unless (by sub-section (4)):
“(a) the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or
(b) the attendance of the child or young person at the requested school or other institution would be incompatible with—
(i) the provision of efficient education for others, or
(ii) the efficient use of...
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