M and another v West Sussex County Council
| Jurisdiction | UK Non-devolved |
| Neutral Citation | [2018] UKUT 347 (AAC) |
| Date | 2018 |
| Year | 2018 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
Education - Local authority’s education functions - Duty to make special educational provision - First-tier Tribunal dismissing parents’ appeal against education, health and care plan prepared by local authority for child - Whether tribunal obliged to have regard to child’s views, wishes and feelings when making decision - Whether tribunal wrong not to consider making special educational provision for child otherwise than in school -
The parents’ child, who had special educational needs, ceased attending a mainstream secondary school after safeguarding concerns came to light regarding her exposure to sexual exploitation. Thereafter she was home schooled. The local authority prepared an education, health and care plan for the child pursuant to section 37 of the Children and Families Act 2014F1, specifying in section I of the plan, in accordance with regulation 12(1)(i) of the Special Educational Needs and Disability Regulations 2014F2, that the appropriate type of school was “secondary mainstream provision”. On appeal to the First-tier Tribunal, the parents sought, inter alia, to have the plan amended to provide that the child should for the time being continue to be home schooled. There was evidence that the child preferred that arrangement and that she was worried about returning to school. Dismissing the appeal, the tribunal held that, since the parents did not contend that their child could not be educated in a small special school, they could not rely on section 61 of the 2014 Act, under which a local authority could arrange for any necessary special educational provision for a child to be made otherwise than in a school if it was satisfied that provision in a school would be inappropriate. The parents appealed on the grounds that the First-tier Tribunal had erred in law both in failing to take the child’s views into account and in its approach to section 61.
On the appeal—
Held, allowing the appeal, (1) that the First-tier Tribunal was obliged to have regard to a child’s views, wishes and feelings when making a decision in relation to the child’s education, health and care plan notwithstanding the absence of any express legislative requirement to that effect; that the obligations imposed on local authorities by section 19(a)–(c) of the Children and Families Act 2014 in relation to the exercise of their functions in the case of a child or young person, which required them to have regard to the views, wishes and feelings of the child and to the importance of the child participating as fully as possible in decisions and being provided with the information and support necessary to enable such participation, applied equally at the appeal stage; that, therefore, the First-tier Tribunal in its statement of reasons ought to have dealt expressly with the child’s views, wishes and feelings; and that, accordingly, the tribunal had erred in law by failing in terms to address the child’s preference for home schooling, about which she had expressed a clear opinion, and by failing to give a brief explanation as to why it was making a decision which did not accord with her views (post, paras 1, 40, 55, 59–60, 62).
(2) That neither the 2014 Act nor the Special Educational Needs and Disability Regulations 2014 permitted anything other than a school or other institution, or type of school or other institution, to be specified in section I of an education, health and care plan; that, therefore, the First-tier Tribunal had not materially erred in law by failing to address whether education otherwise than at a school should have been specified in section I of the child’s plan; that, however, in an appropriate case a local authority or tribunal could, pursuant to section 61(1) and (2) of the 2014 Act, arrange for special educational provision to be made otherwise than in a school, within section F of a plan, if satisfied that provision in or at a school or post-16 institution would be inappropriate; but that, since sections 39 and 40 of the 2014 Act required that an education, health and care plan specify either a school or type of school, any such section 61 provision for a child had to be framed either with the ultimate aim of making it appropriate for a child to be educated in a school, or as part of a package involving elements of attendance at school and attendance otherwise than in a school; and that in the present case, in the absence of further inquiry into what the parents had meant when they reportedly agreed that the child could be educated in a school, the tribunal had erred in law and had given inadequate reasons for failing to address whether provision should have been made in section F of the child’s plan for education otherwise than in a school (post, paras 2, 48, 66–70, 72).
The following cases are referred to in the judgment:
East Sussex County Council v W
S v Worcestershire County Council
No additional cases were cited in argument or referred to in the skeleton arguments.
APPEAL from the First-tier Tribunal
By a decision notice dated 25 July 2017, the First-tier Tribunal dismissed appeals by the parents, M and M, against an education, health and care plan dated 28 September 2016 which the local education authority, West Sussex County Council, had prepared in respect of their child, L, pursuant to section 37 of the Children and Families Act 2014 and which specified in section I that the appropriate educational placement for the child was “secondary mainstream provision”.
With permission of the Upper Tribunal (Judge Mitchell), the parents appealed on the grounds that the First-tier Tribunal, in reaching its decision, had erred in law by failing to take into account the views, wishes and feelings of the child, who would prefer to continue to be home schooled and was worried about returning to school, and had also erred in its approach to section 61 of the 2014 Act in so far as it had failed to consider making provision in the plan for education otherwise than in a school.
The facts are stated in the judgment, post, paras 3–14.
The parties in person.
The court took time for consideration.
30 September 2018. JUDGE MITCHELL promulgated the following judgment.
Summary1 That it is desirable for the First-tier Tribunal to consider a child’s views, wishes and feelings must be close to a universally accepted truth. Therefore, the absence of an express statutory requirement to do so is surprising. This decision holds that, despite the absence of an express requirement, the tribunal is required to consider a child’s views, wishes and feelings. It also discusses, but I am afraid does not resolve, the difficult question whether, in addressing a parental case that is aligned with a child’s views, wishes and feelings, a tribunal will inevitably discharge its obligation to take into account a child’s views, wishes and feelings.
2 This decision also considers whether home schooling or, more accurately, education otherwise than in a school, may be specified in section I (placement) of an education, health and care plan (“EHC plan”). This decision agrees with existing case law that “education otherwise than in a school” may not be specified in section I of an EHC plan. While the predecessor legislation about statements of special educational needs (“SEN”), contained in Part IV of the Education Act 1996, expressly provided for a placement of “education otherwise than in a school”, the Children and Families Act 2014 does not. However, the 2014 Act regime is not blind to the possibility that a child with an EHC plan might not always be appropriately educated in a school. This decision addresses the potential for section F of an EHC plan, which sets out required special educational provision, to reflect that, in an appropriate case, provision for education otherwise than in a school might be made.
Background L’s school history3 L, the child of the appellant parents, is considered to have a complex cognitive profile with an assessed average general ability but “borderline” auditory working memory and processing speed. Professionals have also identified a sensory processing disorder, mild to moderate attention deficit disorder, an auditory processing disorder, difficulties with social communication and low self-esteem. However, those learning difficulties rather lay in the background in these proceedings. The foreground was occupied by L’s documented, and very sad, recent history in which she was placed at risk of, and subjected to actual, sexual exploitation.
4 In 2011, when L was aged seven, she was placed on her mainstream primary school’s SEN register. In 2012 she began to receive school action plus support. In September 2014 L transferred to P Academy, a mainstream primary school. In that year the local authority assessed L’s educational needs (under the Education Act 1996) but decided that a statement of SEN was not necessary. In September 2015 L transferred to a mainstream secondary school, C High School for Girls.
5 An occupational therapy (“OT”) report dated 1 September 2015, commissioned by L’s parents, recommended placement in a “structured school environment where a multidisciplinary team is available”. At this point there were no known sexual-related safeguarding concerns. An updated report of 29 March 2017, after such concerns had come to light, recommended a “specialist school setting where occupational therapists work throughout the curriculum”.
6 A speech and language therapy (“SLT”) report, dated 26 November 2015, commissioned by L’s parents, made a number of detailed...
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