Devon County Council v OH (SEN)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Ward |
| Neutral Citation | [2016] UKUT 292 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Special educational needs,Special educational needs - other,Special educational needs - special educational provision - naming school or other institution in EHC plan |
| Date | 17 June 2016 |
| Published date | 01 December 2016 |
Devon CC v OH (SEN)
[2016] UKUT 0292 (AAC)
HS/3337/2015
Devon CC v OH 1
IN THE UPPER TRIBUNAL Case No HS/3337/2015
ADMINISTRATIVE APPEALS CHAMBER
Before UPPER TRIBUNAL JUDGE WARD
Attendances:
For the Appellant: Mr Jack Anderson, instructed by County Solicitor
For the Respondent Mr Eric Metcalfe, instructed by Maxwell Gillott
Decision: The appeal is allowed. The decision of the First-tier Tribunal
sitting at Exeter on 20 August 2015 under reference EH878/15/00004
involved the making of an error of law.
Each party may, within 14 days of the date of the letter issuing this decision,
file and serve representations as to whether or not the decision of the First-tier
Tribunal should be set aside and if so, what directions, if any, should be given.
REASONS FOR DECISION
1. This appeal concerns the Education Health and Care Plan (“EHC Plan”) of
O, a young woman aged 19 at the time it was made on 1 May 2015. The key
issue in dispute was whether O should be placed at a local FE college, P
College, or at F Centre, an independent specialist college which it is common
ground is, and was at the material time, a “special post 16 institution”
approved by the Secretary of State under section 41 of the Children and
Families Act 2014 (“the 2014 Act”). O, nominally the appellant but in practice
acting by her parents, appealed to the First-tier Tribunal and on 27 August
2015 was successful. No order for suspension was applied for and so far as I
am aware the order of the tribunal is being complied with.
2. Permission to appeal was refused by the First-tier Tribunal by a decision
communicated on 12 October 2015 and the local authority in due course
renewed its application to the Upper Tribunal, which on 26 November I
granted. The case came before me at an oral hearing in London on 29
February 2016, following which further written submissions were directed. I
am grateful to both counsel for their oral and written submissions.
3. In the course of the Upper Tribunal proceedings, a witness statement by a
Ms D, Head of Education at the F Centre, was submitted on behalf of O. This
was not evidence which had been before the First-tier Tribunal and in
deciding whether or not the tribunal erred in law, I disregard it.
4. O has (among other things) severe learning difficulties with significant
speech, communication and language needs, significant social
communication difficulties, global delay and emotional immaturity.
5. O was described by a witness as “mad about horses” and it is this that lies
at the heart of the dispute. According to a witness, whose evidence the
Devon CC v OH (SEN)
[2016] UKUT 0292 (AAC)
HS/3337/2015
Devon CC v OH 2
tribunal appears to have implicitly accepted, O had wanted to work with
horses for many years and had shown great dedication in travelling long
distances to help in stables and to compete. Her CV indicated that she had
been very actively involved in riding, competing successfully at national level
for a number of years.
6. At P College, a programme for O would include one day involving land-
based studies, which would include work with equines but other things
besides; one day involved with animal care; one day of work experience
perhaps with an organisation that provided horses, albeit quietly behaved
ones to meet the needs of young people with disabilities; one day of personal
and social development including health, independent living and employment;
and participation in the activities of a local not-for-profit organisation focussed
on production of crops and associated arts and crafts. There are no horses
on site at P College.
7. At the F Centre however, the course would be “Further Education through
Horsemastership”. Evidence was given that this was an accredited equivalent
to an NVQ in Horse Care Level 2. In particular, students were responsible for
the daily care of horses. Evidence was given that at the end of the course O
would be in a position where she “should be able to obtain employment
(perhaps paid employment).” In cross-examination however, it was
established that the number of students of the F Centre who had progressed
to employment in the field over the last three years was one.
8. The local authority’s position was and is that whilst the F Centre is
accepted to be a suitable placement, a placement there would be an
inefficient use of resources, because O’s needs could be met at P College,
which would be an appropriate placement.
9. The tribunal had only limited evidence on costs, but in general terms it
appears that attendance at F Centre would work out at around £30,000 (I
assume per annum) more expensive than attendance at P College.
10. The tribunal’s conclusion was that whereas F Centre would be an
appropriate placement for O, P College would not be and so, not needing to
conduct a balancing exercise, it did not go on to consider costs in more detail.
The law
11. Section 37 of the 2014 Act creates the duty to prepare and maintain an
EHC Plan and sets out, in outline, what must, and what may, be included in
such a Plan. Sub-section (2) explains that an EHC Plan is a plan specifying
(among other matters) “(a) the …young person’s special educational needs;
(b) the outcomes sought for…her; (c) the special educational provision
required by…her.” Sub-section (4) confers a power to “make provision about
the preparation, content, maintenance, amendment and disclosure of EHC
plans.” Pursuant to that sub-section, regulation 12 of the Special Educational
Needs and Disability Regulations 2014/1530 (“the Regulations”) provides as
follows:
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4 cases
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KE v Lancashire County Council
...the child’s development and to help him achieve the best possible educational and other outcomes. In Devon County Council v OH (SEN) [2016] UKUT 292 (AAC) Mr Andersons submissions must have been more complex. It is discussed at great length in that decision and I see little point in belabou......
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HN v South Tyneside Council
...the special educational provision the child requires. The ‘outcomes’ are the intended consequences of the provision (Devon CC v OH [2016] UKUT 292 (AAC) at paragraph [41]) not the provision itself, and may range wider than educational outcomes. Nor is health care provision, as properly iden......
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London Borough of Hillingdon v SS and TS and ES (SEN)
...special educational provision, not only in the case of those who are not “pupils” but also of those who are. In Devon CC v OH (SEN) [2016] UKUT 0292 (AAC) at [33] I expressed the view, for the reasons I gave there, that the legislative intention was in general terms for a continuity of appr......
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RB v Calderdale MBC (SEN)
...nonetheless it has been said that the provisions of the code cannot override the legislation (see, for example, Devon CC v OH (SEN) [2016] UKUT 0292 (AAC)). d. In this context, did the First-tier Tribunal fail to have sufficient regard to the relevant sections of the Code of Practice? If We......