Hertfordshire County Council v MC and KC (SEN)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Lane |
| Neutral Citation | [2016] UKUT 385 (AAC),[2016] UKUT 385 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Special educational needs,Tribunal procedure,practice,Special educational needs - failure to make a statement,practice - statements of reasons,Lane,S |
| Date | 24 August 2016 |
| Published date | 01 December 2016 |
Hertfordshire County Council v (1) MC, (2) KC. (SEN)
[2016] UKUT 0385 (AAC)
HS/688/2016 1
IN THE UPPER TRIBUNAL Appeal No. HS/688/2016
ADMINISTRATIVE APPEALS CHAMBER
Before Judge S M Lane
1. The appeal by the appellant Local Authority is dismissed.
The decision of the Special Educational Needs Tribunal heard on 22 December 2015
under reference EH919/15/00029 did not involve the making of any material error on
a point of law.
2. The stay on preparing an Education, Health and Care Plan is lifted.
3. I direct that there is to be no publication of any matter likely to lead members of
the public directly or indirectly to identify any person who has been involved in the
circumstances giving rise to this appeal, pursuant to rule 14 of the Tribunal
Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698).
REASONS FOR DECISION
1. The appellant Local Authority (‘the Local Authority’) brought this appeal with the
permission of the First-tier Tribunal (Education and Disability) (‘the F-tT’). An oral
hearing was held at the Rolls Building on 26 July 2016. Mr M Small, of Baker
Small, represented the Local Authority. Mr J Friel, of counsel, represented the
parents, MC and KC. Mr Friel also represented the appellants at F-tT hearing. He
is instructed by SEN Legal. I thank the representatives for their careful
submissions.
2. The F-tT gave permission to appeal the F-tT’s decision requiring the Local Authority
to issue an Education, Health and Care Plan (‘EHC Plan’) in respect of Mr and Mrs
C son, J, on three grounds:
1) The F-tT arguably failed to consider whether J had a learning difficulty within
the meaning of ‘section 20 of the Children and Families Act 2014 (‘CFA
2014’).
2) The F-tT arguably failed to provide adequate reasons for its conclusion at
[33] of its decision that an EHC Plan was necessary, and arguably failed to
explain why the parents’ witnesses were preferred to the Local Authority’s
witnesses;
3) The F-tT arguably erred by considering that the availability of provision
within the resources of the school were irrelevant.
The background
Hertfordshire County Council v (1) MC, (2) KC. (SEN)
[2016] UKUT 0385 (AAC)
HS/688/2016 2
3. J is an 8 ½ year old boy who has a diagnosis of high functioning Autistic Spectrum
Disorder (‘ASD’). He has social communication difficulties, significant sensory
processing difficulties impacting on his functional abilities, difficulties with
sequencing, planning and organisation, and a number of physical problems
including dyspraxia. His main problems, however, are behavioural, including
aggression (especially in unstructured time at school and in after school activities),
challenging behaviour and non-compliance with instructions from his teachers,
difficulties keeping ‘on task’, and in keeping still. Despite his serious behavioural
problems, he has achieved average and high average levels in Maths (2a) and
Writing (2b/a) but a lower level in Reading (3c) of the national curriculum. By the
time the appeal reached the Upper Tribunal, J had been withdrawn from the
independent school he was attending (‘R School’) as he was facing expulsion.
4. The Local Authority carried out an assessment of J’s educational, health care and
social care needs pursuant to section 36 of the CFA 2014 but decided that it was
not necessary to issue an EHC Plan under section 37(1).
The legislation:
5. The provisions, as relevant to this appeal, are: -
20 When a child or young person has special educational needs
(1) A child or young person has special educational needs if he or she has a learning
difficulty or disability which calls for special educational provision to be made for
him or her.
(2) A child of compulsory school age or a young person has a learning difficulty or
disability if he or she—
a. has a significantly greater difficulty in learning than the majority of others of
the same age, or
b. has a disability which prevents or hinders him or her from making use of
facilities of a kind generally provided for others of the same age in
mainstream schools or mainstream post-16 institutions.
…
(5) This section applies for the purposes of this Part.
21 Special educational provision, health care provision and social care provision
(1) “Special educational provision”, for a child aged two or more or a young person,
means educational or training provision that is additional to, or different from, that made
generally for others of the same age in—
(a) mainstream schools in England,
…
33 Children and young people with EHC plans
(1) This section applies where a local authority is securing the preparation of an EHC
plan for a child or young person who is to be educated in a school or post-16 institution.
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Nottinghamshire County Council v SF and GD (SEN)
...to the circumstances of a particular case and may well involve a considerable degree of judgment (Hertfordshire CC v MC and KC [2016] UKUT 385 (AAC)). 36. We considered very carefully the provision currently made for [HD]: we had the benefit of…detailed evidence about the amount of provisio......
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SS v Proprietor of an Independent School
...between the two acts has been discussed in a number of Upper Tribunal decisions (see Hertfordshire County Council v MC and KC (SEN) [2016] UKUT 0385 (AAC), RD and GD v The Proprietor of Horizon Primary (SEN) [2020] UKUT 278 (AAC), RB v Calderdale MBC (SEN) [2022] UKUT 136 (AAC), GP v Lime T......
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JP v Sefton Metropolitan Borough Council (SEN)
...determine a child’s special educational provision.” 18. For completeness Mr Wolfe also took me to Hertfordshire CC v MC and KC (SEN) [2016] UKUT 385 (AAC) and Gloucestershire CC v EN (SEN) [2017] UKUT 85 (AAC); [2017] ELR 193, both decided under the new statutory framework, although neither......
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RB v Calderdale MBC (SEN)
...Judge Lane which made passing reference to the interface between the CFA and EA (Hertfordshire County Council v MC and KC (SEN) [2016] UKUT 0385 (AAC) and RD and GD v The Proprietor of Horizon Primary (SEN) [2020] 10 RB v Calderdale MBC (SEN) [2022] UKUT 136 (AAC) Case no: UA-2021-000608-HS......
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