East Sussex County Council v W
| Jurisdiction | UK Non-devolved |
| Neutral Citation | [2016] UKUT 528 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
Education - Local authority’s education functions - Duty to make special educational provision - Local authority refusing to amend young person’s education, health and care plan to include supported living as part of named placement and to treat social care provision as special educational provision - Whether young person’s home could be institution to be attended by him for purposes of plan - Whether appropriate to treat social care provision as special educational provision -
W, a young person, was the subject of an education, health and care plan maintained by the responsible local authority under the Children and Families Act 2014F1. He was registered at a specialist independent college on a day placement and lived in a rented flat with domiciliary support. The plan, the required form of which was set out in regulation 12 of the Special Educational Needs and Disability Regulations 2014F2, specified the type of placement as a specialist day college in section I and included social care provision in section D. W appealed requesting, inter alia, that (i) the name of the placement in section I of the plan should include the supported living provided for W at his home, in addition to the college placement and (ii) the provision of services entered in the plan under social care should be treated as special educational provision and moved to section F under section 21(5) of the 2014 Act, on the basis that it provided education or training. The First-tier Tribunal allowed the appeal and amended the plan accordingly.
On appeal by the local authority—
Held, allowing the appeal, (1) that the entries made by the First-tier Tribunal in section I of the plan did not comply with regulation 12(1)(i) of the Special Educational Needs and Disability Regulations 2014, which provided that section I had to contain the name or type of institution “to be attended by” the person; that a tribunal could not add information to section I in order to avoid the risk of a placement breaking down; that there had to be something that was “attended by” the person and the phrase “supported living provided by Brighton and Sussex Care Ltd” identified the form of the provision that was to be made for W and the body which was to provide it but it did not identify something that W could attend; and that, in so far as the tribunal’s version envisaged that the supported living would be provided in W’s home, that was not permissible within regulation 12(1)(i) since W’s home was where he lived and it was not a proper use of language to say that his home was somewhere “to be attended by” him, nor was it a proper use of the word to describe his home as an institution, whatever the specific meaning of that word (post, para 32).
(2) That section 21(5) of the Children and Families Act 2014 only operated in respect of that part of the person’s social care that also educated or trained and did not apply to all social care, regardless of its effect; that when a case came before the tribunal the local authority might already have applied section 21(5) but, if it had not, the tribunal had to apply it and, if necessary, move the relevant provision from section D to section F; that in order to apply section 21(5) the tribunal had to identify the person’s social care provision and then identify which parts of social care provision educated or trained, and any parts having that effect had to be moved to section F; that the tribunal’s reasons did not support the conclusion that it had undertaken that analysis; that it had either not done so in sufficient detail, in which case its reasons were inadequate, or it had considered that all aspects of W’s social care educated and trained him, in which case the tribunal had failed to make findings and provide an explanation to show that that was so; and that in either case the tribunal had erred in law (post, paras 22–25).
The following cases are referred to in the judgment:
Bromley London Borough Council v Special Educational Needs Tribunal [
Doncaster Metropolitan Borough Council v Secretary of State for Health
E v Newham London Borough Council
Hammersmith and Fulham London Borough Council v JH
JD v South Tyneside Council
L v Clarke [
R v Lancashire County Council, Ex p Moore (
R (Ipsea Ltd) v Secretary of State for Education and Skills
R (M) v Slough Borough Council
S v City and Council of Swansea [
The following additional cases were cited in argument:
Bradford City Council v A [
Buckinghamshire County Council v SJ
DC v Hertfordshire County Council
G v Wakefield City Metropolitan District Council (
H v A London Borough Council
Hampshire County Council v JP
JC v Bromley London Borough Council
K v Hillingdon London Borough Council
Learning Trust v MP
OD v Gloucestershire County Council
R v Lambeth London Borough Council, Ex p M (
R (M) v Hounslow London Borough Council
R (Tottman) v Hertfordshire County Council
W v Leeds City Council
APPEAL from the First-tier Tribunal
TW (“W”) was a young person who was the subject of an education, health and social care plan maintained by East Sussex County Council as the responsible local authority. W requested, inter alia, that (i) the name of the placement specified in section I of the plan should include the supported living provided by Brighton and Sussex Care Ltd (“BASC”) at W’s home and (ii) the provision provided by BASC and entered in the plan under social care should be treated as educational provision and moved from section D to section F of the plan under section 21(5) of the Children and Families Act 2014. On refusal of the request W appealed to the First-tier Tribunal (Health, Education and Social Care Chamber) under section 51(2)(c) of the 2014 Act. On 1 April 2016 the First-tier Tribunal (Judge Lewis) allowed the appeal and the tribunal amended the plan accordingly.
With permission granted by the tribunal judge the local authority appealed to the Upper Tribunal (Administrative Appeals Chamber).
The facts are stated in the judgment.
John Friel (instructed by
David Lawson (instructed by
The court took time for consideration.
25 November 2016. JUDGE JACOBS released the following judgment.
A. Introduction1 This appeal came to the Upper Tribunal by way of permission given by the First-tier Tribunal (“the tribunal”). It was heard at an oral hearing on 17 November 2016. Mr David Lawson of counsel appeared for the local authority. Mr 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 tribunal. I could have taken that into account if I were remaking the decision, but I am not. I cannot take it into account to show an error in the 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 tribunal for the rehearing.
B. About Theo3 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 decision4 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 anxiety5 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 curriculum6 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 BASC was educational provision7 The tribunal decided that it did as, although it was...
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