GK v Essex County Council (SEN)

CourtUpper Tribunal (Administrative Appeals Chamber)
JudgeJudge Ward
Neutral Citation[2017] UKUT 355 (AAC),[2017] UKUT 355 (AAC)
Date29 August 2017
Published date14 September 2017
subjectMatterSpecial educational needs,Tribunal procedure,practice,Special educational needs - other,practice - representatives,practice - tribunal practice,Ward,C
GK v Essex CC (SEN)
[2017] UKUT 0355 (AAC)
For the Appellant: Ms L Price, instructed by Simpson Millar
For the Respondent: Mr T Tabori, instructed by County Solicitor
Decision: The appeal is dismissed. The decision of the First-tier Tribunal
sitting at London on 24 May and 6 July 2016 under reference
EH881/15/00035 did not involve the making of a material error of law and is
1. The appellant is the mother of a girl, S, born in November 2008. S has a
condition on the autistic spectrum and developmental delay. Following a
review held as long ago as July 2015 which had not resulted in changes to S’s
statement of special educational needs (“SEN”), the appellant appealed to the
First-tier Tribunal (“FtT”). The legal nature of that appeal is disputed and I
return to it below. A number of changes of heart on the part of the appellant
ensued, but by the time of the final hearing before the FtT, she was seeking
placement in school U, a maintained mainstream primary school, preferably
with additional ABA (Applied Behaviour Analysis) input. The authority’s
position was that education of S there would be incompatible with the efficient
education of another pupil, also with SEN, who was attending the school
already, and that S should be educated at OV, a maintained special school.
2. The case concerns the qualified primacy given to mainstream education by
sections 316 and 316A of the Education Act 1996 (“the 1996 Act”) and a
question of some broader interest in relation to the inquisitorial function of the
First-tier Tribunal (HESC) in applying that legislation, specifically the impact of
an apparent concession by the appellant’s then representative that the
appellant was not asking the FtT to give effect to those sections with their
fullest potential application. The representative concerned, Mr M, was not
appearing as a solicitor or barrister, but is from an organisation which quotes
a four figure sum as the fee for conducting a day’s hearing and which holds
itself out in terms that it
“provides support and advice for parents seeking the best possible special
educational needs provision for their children. We specialise in cases involving
children with autism, as we have significant personal and professional experience of
SEN tribunal for autistic children.”
3. The FtT ordered a number of changes to Parts 2 and 3 of S’s statement.
As to Part 4 it did not order any change. It found that the appellant had a
genuine - if possibly misconceived - preference for mainstream education. It

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