M v Hertfordshire County Council (SEN)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Mitchell |
| Neutral Citation | [2019] UKUT 37 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Special educational needs,Special educational needs - failure to prepare an EHC plan under Children,Families Act 2014,Mitchell,E |
| Date | 09 January 2019 |
| Published date | 23 February 2019 |
M v Hertfordshire County Council [2019] UKUT 37 (AAC)
HS/1237/2018
1
IN THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER
Before:
Mr E. Mitchell, Judge of the Upper Tribunal
Representation:
Appellant: Coram Children’s Legal Centre and Mr L Dilaimi (of counsel).
Respondent: Browne Jacobson Solicitors (LLP)
DECISION
Under section 12(2) of the Tribunals, Courts and Enforcement Act 2007, the Upper
Tribunal decides that the First-tier Tribunal’s decision of 1 March 2018 (ref.
EH/919/17/00119) involved an error on a point of law and sets aside the decision. The
appeal is remitted to the First-tier Tribunal for re-hearing. The constitution of the
tribunal is a matter to be determined by the First-tier Tribunal.
Under rule 14(1) of the Upper Tribunal (Tribunal Procedure) Rules 2008 I hereby make
an order prohibiting the disclosure or publication of any matter likely to lead to a
member of the public identifying the young person with whom this appeal is concerned.
This order does not apply to (a) the young person’s parents, (b) any person to whom any
parent discloses such a matter in the due exercise of parental responsibility, (c) any
person exercising statutory (including judicial) functions in relation to the young person.
REASONS FOR DECISION
Introduction
1. This appeal involved a child whose school-related anxiety was, I suspect, more severe than
most cases of that condition. The evidence indicated that the child’s anxiety was such that it
could trigger vomiting. The child had also been diagnosed with rumination disorder, an eating
disorder that, as I understand it, involves regurgitation of food rather than vomiting, as well as
autism.
2. The First-tier Tribunal dismissed the mother’s appeal against the contents of the child’s
Education, Health and Care (EHC) Plan. The principal issue was whether the child was
medically unfit to attend school so that he should instead be educated at home. The Tribunal
decided that the evidence did not support a finding that the child was medically unfit to attend
M v Hertfordshire County Council [2019] UKUT 37 (AAC)
HS/1237/2018
2
school. However, the Tribunal did not take into account the child’s school-related anxiety and
associated vomiting, only the possible effect of school attendance on his rumination disorder.
In failing to take into account relevant circumstances, the Tribunal erred in law and its
decision is set aside.
Background
The appeal to the First-tier Tribunal
3. In these reasons, I refer to the child as A and his mother, the appellant, as Ms M. A started
attending St E’s School in early 2017. The evidence indicates that A’s previous educational
placements had broken down against a background of school-related anxiety.
4. St E’s School is a non-maintained independent special school. It specialises in educating
children and young people with epilepsy; the local authority say it also has expertise in
educating children and young people with autism. By around March 2017, Ms M had begun
to educate A at home. In her view, attending St E’s School caused A such anxiety that he
could no longer attend.
5. An EHC Plan specified St E’s School as A's educational placement. Following a statutory
review, the local authority decided in September 2017 to continue to specify St E’s School as
A’s educational placement in section I of the EHC Plan. Ms M had wanted the EHC Plan to
provide for a package of home-based tuition. Ms M appealed to the First-tier Tribunal against
the contents of A’s EHC Plan. In March 2018, the Tribunal dismissed her appeal because
there was, in its judgment, no “evidence that [A] is medically unfit to attend school as there is
no current opinion based on a proper assessment of him by a suitably qualified professional”.
The grounds of appeal
6. The First-tier Tribunal granted Ms M permission to appeal to the Upper Tribunal against its
decision. The ground on which permission to appeal was granted was that, arguably, the
Tribunal did not have “requisite up to date medical evidence to reach an informed conclusion”
as to whether A had a medical condition that prevented him from attending school.
7. Ms M’s subsequent notice of appeal to the Upper Tribunal advanced additional grounds. In
summary, the notice argued that the First-tier Tribunal arguably erred in law by:
(1) failing of its own motion to adjourn in order to obtain up-to-date medical evidence (i.e. the
ground on which the First-tier Tribunal granted permission to appeal):
• The Tribunal observed that Ms M’s son, A, had “a diagnosis of rumination
disorder, in addition to autism and learning difficulties” and went on to state that “the
evidence before us did not contain a medical report diagnosing the disorder, a
description of the disorder or details as to its management or treatment from a suitably
qualified professional”;
• The evidence before the Tribunal included two letters from a Consultant
Community Paediatrician. A letter of 13 April 2017 stated that A should not attend
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