HS 1906 2016, East Sussex County Council v TW

CourtUpper Tribunal (Administrative Appeals Chamber)
JudgeJudge E. Jacobs
Judgment Date25 November 2016
Neutral Citation[2016] UKUT 528 (AAC)
RespondentTW
Docket NumberHS 1906 2016
Subject MatterSpecial educational needs
AppellantEast Sussex County Council
DECISION OF THE UPPER TRIBUNAL

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal (made on 1 April 2016 under reference EH845/15/00030) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the tribunal for rehearing by a differently constituted panel for a complete reconsideration of the issues that are raised by the appeal in accordance with the analysis in my reasons.

Reasons for Decision

A. Introduction
  1. This appeal came to the Upper Tribunal by way of permission given by the First-tier Tribunal. It was heard at an oral hearing on 17 November 2016. David Lawson of counsel appeared for the local authority. John Friel of counsel appeared for Theo, whose needs were the subject of the case. I am grateful to both counsel for their presentations to me, especially as I had stepped in to take the hearing at the last minute with no familiarity with the papers. I am also grateful to them for their written submissions following the hearing
  2. There was evidence provided in the papers before me that was not before the First-tier Tribunal. I could have taken that into account if I were re-making the decision, but I am not. I cannot take it into account to show an error in the First-tier Tribunal’s decision, as the evidence was not put to it. In the event, I did not read it. It may, of course, be put to the First-tier Tribunal for the rehearing
B. About Theo
  1. This case concerns the education, health and care plan for Theo who was born on 13 October 1993. He has autistic spectrum disorder, attention deficit hyperactivity disorder, associated challenging behaviour, and anxiety issues. He also has a back problem. Theo is registered at a specialist independent college on a day placement, but his attendance has been patchy. He lives in a rented flat with domiciliary support provided by Brighton and Sussex Care Ltd (BASC).
C. The First-tier Tribunal’s decision
  1. Having heard the appeal, the tribunal set out five questions that it had to answer.
Whether the description of the primary cause of Theo’s needs should centre on his autism and related anxiety
  1. The tribunal decided that it should. It accepted evidence to that effect and decided that there was no evidence to show that Theo’s back problems were sufficiently severe to constitute part of his special educational needs. This effectively dealt with the tribunal’s fourth question also, which was whether Theo’s back problems were part of his special educational needs.
Whether Theo required a waking day curriculum
  1. The tribunal directed itself that a waking day curriculum required not only a need for consistency, but also educational programmes throughout the day. It decided that there was a ‘preponderance of persuasive evidence that this was indeed the case.’ The tribunal mentioned programmes relating to behavioural management, daily living skills, functional living skills and independent skills, management prospects, and the development of social skills and friendships.
Whether the provision provided by BACS was educational provision
  1. The tribunal decided that it did as, although it was identified by the local authority under its social services function, it provided education or training. The tribunal mentioned programmes to deal with Theo’s anxiety as a barrier to learning and developing skills enhancing his chance of finding work.
Whether the package of services provided by BACS should be entered into Section I of his plan in addition to his college place
  1. The tribunal decided that it should. If the Section only mentioned the college, it said, there was a risk that that placement would break down. The tribunal rejected Mr Lawson’s argument that Theo’s own home could not be an institution.
D. The legislation
  1. These are the relevant provisions of the Children and Families Act 2014:

20 When a child or young person has special educational needsE+W

(1) A … young person has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her.

(2) … a young person has a learning difficulty or disability if he or she-

(a) has a significantly greater difficulty in learning than the majority of others of the same age, or

(b) has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions.

21 Special educational provision, health care provision and social care provisionE+W

This section has no associated Explanatory Notes

(1) ‘Special educational provision’, for … a young person, means educational or training provision that is additional to, or different from, that made generally for others of the same age in—

(c) mainstream post-16 institutions in England …

(2) Special educational provision’, for a child aged under two, means educational provision of any kind.

(3) Health care provision’ means the provision of health care services as part of the comprehensive health service in England continued under section 1(1) of the National Health Service Act 2006.

(4) Social care provision’ means the provision made by a local authority in the exercise of its social services functions.

(5) Health care provision or social care provision which educates or trains a child or young person is to be treated as special educational provision (instead of health care provision or social care provision).

37 Education, health and care plansE+W

This section has no associated Explanatory Notes

(1) Where, in the light of an EHC needs assessment, it is necessary for special educational provision to be made for a … young person in accordance with an EHC plan—

(a) the local authority must secure that an EHC plan is prepared for the … young person, and

(b) once an EHC plan has been prepared, it must maintain the plan.

(2) For the purposes of this Part, an EHC plan is a plan specifying—

(a) the … young person's special educational needs;

(b) the outcomes sought for him or her;

(c) the special educational provision required by him or her;

(d) any health care provision reasonably required by the learning difficulties and disabilities which result in him or her having special educational needs;

(e) in the case of … a young person aged under 18, any social care provision which must be made for him or her by the local authority as a result of section 2 of the Chronically Sick and Disabled Persons Act 1970 (as it applies by virtue of section 28A of that Act);

(f) any social care provision reasonably required by the learning difficulties and disabilities which result in the … young person having special educational needs, to the extent that the provision is not already specified in the plan under paragraph (e).

(3) An EHC plan may also specify other health care and social care provision reasonably required by the … young person.

(4) Regulations may make provision about the preparation, content, maintenance, amendment and disclosure of EHC plans.

(5) Regulations under subsection (4) about amendments of EHC plans must include provision applying section 33 (mainstream education for children and young people with EHC plans) to a case where an EHC plan is to be amended under those regulations.

42 Duty to secure special educational provision and health care provision in accordance with EHC Plan

(1) This section applies where a local authority maintains an EHC plan for a … young person.

(2) The local authority must secure the specified special educational provision for the … young person.

(3) If the plan specifies health care provision, the responsible commissioning body must arrange the specified health care provision for the … young person.

(4) The responsible commissioning body’, in relation to any specified health care provision, means the body (or each body) that is under a duty to arrange health care provision of that kind in respect of the … young person....

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2 cases
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    ...[2011] UKUT 468 (AAC) (17 November 2011), which (like the decision of Upper Tribunal Judge Jacobs in East Sussex County Council v. TW [2016] UKUT 528 (AAC), to which I refer in paragraph 69) does refer to, and deals with, the decision of the Court of Appeal in E v Newham LBC. The context in......
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    ...citations here: Derbyshire County Council v EM and DM (SEN) [2019] UKUT 240 (AAC); [2020] ELR 27. East Sussex County Council v TW [2016] UKUT 528 (AAC). TM v London Borough of Hounslow [2009] EWCA Civ 859; [2011] ELR 2. The appellant brings this appeal with the permission of First-tier Trib......

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