NN v Cheshire East Council
| Jurisdiction | UK Non-devolved |
| Neutral Citation | [2021] UKUT 220 (AAC) |
| Year | 2021 |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
2021 Aug 3; 24
Education - Local education authority - Duty to make special educational provision - Local authority preparing education, health and care plan naming school to be attended by child for bespoke educational provision - Whether attendance requiring presence at school site - Whether unlawful failure to take into account child’s wishes - Guidance to tribunals where parties proposing bespoke provision of education outside conventional classroom setting and education otherwise than at school -
By an education, health and care plan prepared for a child with special educational needs, the local authority proposed bespoke provision of education tailored to the child’s needs and consisting of a gradual, collaborative programme, initially based in the child’s home but subject to review every four weeks. Pursuant to section 40(2) of the Children and Families Act 2014F1 and regulation 12(1)(i) of the Special Educational Needs and Disability Regulations 2014F2, section I of the plan specified a named school which the authority considered appropriate for the child. That school was able to offer, in addition to the typical special school provision, a varied curriculum outside a conventional classroom setting and it was proposed that the child could go onto the school site to access activities of his choice and of interest to him. The child’s mother appealed to the First-tier Tribunal, contending that section I of the plan ought to be left blank and that the child’s provision ought to be delivered by education otherwise than in a school. Her case was that the child was implacably opposed to attending the school in any form and that, while she wished him to be able to access an educational setting when he was ready to do so, it would not be possible to achieve that in the foreseeable future. Dismissing the appeal, the tribunal found that it would not be inappropriate for the child to be educated in a school and that section I of the plan ought to specify bespoke provision at the named school.
On the mother’s further appeal—
Held, allowing the appeal, that the First-tier Tribunal had made a material error of law in failing either to take into account the child’s firm views or to explain why it considered they were not relevant; that it had further erred in including reference to “bespoke provision” in section I of the plan, it being established that section I had to be limited to what was provided by regulation 12(1)(i) of the Special Educational Needs and Disability Regulations 2014 which, in a case such as the present, was just the name and type of the school to be attended by the child; that it followed that its decision was to be set aside; and that, in those circumstances, it was not necessary to determine whether the tribunal’s failure specifically to address whether the school was “to be attended by” the child, within the meaning of regulation 12(1)(i), was a material error of law (post, paras 46, 47(g), 50, 53, 55, 56).
Guidance for tribunals considering cases where bespoke provision of education outside a conventional classroom setting, and education otherwise than at school, are proposed by the parties (post, paras 30, 47).
Per curiam. In so far as regulation 12(1)(i) of the Special Educational Needs and Disability Regulations 2014 requires an education, health and care plan to set out, in section I, the name or type of school “to be attended by” the child, the word “attend” should be given its clear and unambiguous meaning of “to be present at”. Thus, if the First-tier Tribunal is satisfied that a child will be present at a school or type of school for at least part of the time, that is sufficient and so the school or type of school must be specified in section I. Attending provision provided by the school as part of a bespoke package outside a conventional classroom setting will nonetheless mean that the school is to be attended by the child within the meaning of regulation 12(1)(i) (post, paras 43, 47(f)).
The following cases are referred to in the judgment:
Derbyshire County Council v EM
East Sussex County Council v W
M v West Sussex County Council
MA v Kensington and Chelsea Royal London Borough Council
R (M) v Hounslow London Borough Council
TB v Essex County Council
No additional cases were cited in argument or referred to in the skeleton arguments.
APPEAL from the First-tier Tribunal (Health, Education and Social Care Chamber)
By a decision dated 5 November 2020 the First-tier Tribunal (Health, Education and Social Care Chamber) dismissed an appeal by the mother, NN, whose child had special educational needs, against the educational provision proposed for the child in the education, health and care plan prepared for him by the local authority, Cheshire East Council. With permission granted by First-tier Tribunal Judge Eden the mother appealed on the ground that the First-tier Tribunal had been wrong to conclude that section I of the plan ought, pursuant to regulation 12(1)(i) of the Special Educational Needs and Disability Regulations 2014, to provide for bespoke educational provision at the school proposed by the local authority, the mother’s case being that section I ought instead to be left blank and the child’s educational provision be delivered by education otherwise than in a school.
The facts are stated in the judgment, post, paras 4–14.
The mother in person.
Lucinda Leeming (instructed by
The Upper Tribunal took time for consideration.
24 August 2021. UPPER TRIBUNAL JUDGE ROWLEY promulgated the following judgment.
Decision
The decision of the Upper Tribunal is to allow the appeal. The decision of the First-tier Tribunal made on 5 November 2020 under number EH895/19/00036 was made in error of law. Under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set that decision aside and remit the case to be reconsidered by a fresh tribunal in accordance with the following directions.
Directions1. This case is remitted to the First-tier Tribunal for reconsideration at an oral hearing.
2. The new First-tier Tribunal should not involve any judge or other member who has previously been a member of a tribunal involved in this appeal.
3. Before listing, and as soon as possible, the matter is to be referred to a judge of the First-tier Tribunal to consider what, if any, case management directions are required, including the provision of further written evidence and/or argument.
4. Whilst the new First-tier Tribunal will need to address the grounds on which I have set aside the decision, it should not limit itself to those, but must consider all aspects of the case entirely afresh.
5. The new First-tier Tribunal is not bound in any way by the decision of the previous tribunal. Depending on the findings of fact it makes, the new tribunal may reach the same or a different outcome to the previous tribunal.
Reasons
Cases frequently referred to in this decision1 I refer to the following three cases on a number of times in this decision. For ease of reference, I set out their citations here: Derbyshire County Council v EM [
2 The appellant brings this appeal with the permission of First-tier Tribunal Judge Eden. The appeal concerns how the issue of bespoke provision of education outside a conventional classroom setting should be dealt with by a tribunal. It also involves some consideration of education otherwise than at school.
3 I held an oral hearing of the appeal in Manchester on 3 August 2021. The appellant represented herself at the hearing. She was assisted by Ms Fiona Nicholson. The respondent (“LA”) was represented by Ms Lucinda Leeming of counsel. Ms Leeming had not appeared before the First-tier Tribunal. I am grateful to all involved for their focused and careful submissions. That said, it should be noted that only the respondent was legally represented, and so this appeal has been decided in the absence of contested legal argument.
The context4 At the heart of this case is the appellant’s son, a 13-year-old whom I shall refer to as William. William lives with his mother and maternal grandmother. He has been diagnosed with autism spectrum disorder and has also been described as having a profile suggestive of pathological demand avoidance. He has significant sensory difficulties. William has never attended school. Rather, he has been educated at home by his mother and grandmother in a way that does not appear to have followed an organised pattern. Although his literacy and numeracy levels are below those expected for his age, William has many talents, including electronic and computer skills, and he enjoys building go-karts. He is a talented pianist and swimmer, and enjoys outdoor pursuits including cycling.
5 William was referred to the Child and Adolescent Mental Health Service (“CAMHS”) in April 2018 for extreme anger, concerns over obsessive and compulsive behaviour, and severe anxiety. The latter gives him an overriding need to be in control. William’s mother and grandmother are finding it increasingly difficult to manage his behaviour. As he has grown in stature he has become physically aggressive to such an extent...
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NN V Chesire East Council (SEN)
...Cheshire East Council (SEN) [2021] UKUT 220 (AAC) IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER Appeal No. HS/260/2021 On appeal from First-tier Tribunal (HESC Chamber) Between: NN Appellant -v– Cheshire East Council Respondent Before: Upper Tribunal Judge Rowley Decision date: 24 Au......