Derbyshire County Council v EM and DM (SEN)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Wright |
| Neutral Citation | [2019] UKUT 240 (AAC) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Subject Matter | Special educational needs,Special educational needs - special educational provision - naming school or other institution in EHC plan,Wright,S |
| Date | 13 August 2019 |
| Published date | 27 September 2019 |
Derbyshire CC –v- EM and DM (SEN)
[2019] UKUT 240 (AAC)
HS/571/2019 and HS/572/2019
1
IN THE UPPER TRIBUNAL Appeal Nos: HS/571/2019
HS/572/2019
ADMINISTRATIVE APPEALS CHAMBER
Before: Upper Tribunal Judge Wright
ORDER
Pursuant to rule 14(1) of the Tribunal Procedure (Upper Tribunal)
Rules 2008, it is prohibited for any person to disclose or publish
any matter likely to lead members of the public to identify the
children in these proceedings. This order does not apply to: (a) the
child’s parents, (b) any person to whom the children’s parents, in
due exercise of their parental responsibility, discloses such a
matter or who learns of it through publication by either parent,
where such publication is a due exercise of parental responsibility;
(c) any person exercising statutory (including judicial) functions in
relation to the children where knowledge of the matter is
reasonably necessary for the proper exercise of the functions.
DECISION
The Upper Tribunal dismisses both appeals of the appellant
local authority.
The decision of the First-tier Tribunal made on 30 November
2018 under the references EH830/18/00034 and
EH830/18/00035 did not involve any error on a material
point of law and is not set aside.
REASONS FOR DECISION
1. These combined appeals concern the special educational needs
provision for two sisters, who I will refer to as EJ and TJ, who are now
aged 11 and 9. The First-tier Tribunal (“the tribunal”) heard
consolidated appeals brought by the sisters’ parents on 6 September
and 9 November 2018. The sisters have very significant disabling
conditions. For the purposes of this appeal I need not describe those
conditions any further. In its decision of 30 November 2018 the
Derbyshire CC –v- EM and DM (SEN)
[2019] UKUT 240 (AAC)
HS/571/2019 and HS/572/2019
2
tribunal decided that as it had made provision for ‘education otherwise
than in school’ under section F of the sisters’ education and health care
plans (EHC Plan), no school or other institution (or type of either)
could be named in section I of the EHC Plans.
2. The sole remaining issue on these appeals by Derbyshire County
Council from the tribunal’s consolidated decision is whether the
tribunal was entitled as a matter of law to leave section I of the EHC
Plans blank. That in turn requires me to decide whether the decision in
M & M v West Sussex County Council (SEN) [2018] UKUT 347 (AAC)
was correctly decided in holding that all EHC Plans must specify a
school or institution (or type of either) in section I, including where the
educational provision is to be otherwise than in school.
3. The appeal proceedings before the Upper Tribunal have taken a
somewhat unusual course in that both parties now agree that M & M
was wrong on the above point and that the tribunal did not therefore
err in law in leaving the section I in each EHC Plan blank. However,
given the disagreement with M & M and the importance of the point,
rather than Derbyshire seeking my consent to its withdrawing the
appeals, it (along with the respondent parents) asks me to decide the
point
1
, and decide it without an oral hearing.
4. One disadvantage of my deciding the appeal on this important issue is
that I am doing so without the benefit of contested legal argument. On
the other hand, both parties are now represented by leading counsel
with significant experience in the field of special educational needs law,
and the final argument of Derbyshire has sought to identify arguments
in favour of a contrary reading of the law and in favour of M & M on
this point.
1
Der byshire had o ne other ground of appeal, concerning whether certain activities that the
tribunal ordered to be included in section F of each of the sist ers’ EHC Plans constituted
‘special educational provision’ and, even if it did so, had been identified with sufficient
specificity. However, Derbyshire now accepts the tribunal did not err in either of these
respects and no longer wishes to pursue this ground of appeal . I therefore say no more about
this ground.
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NN V Chesire East Council (SEN)
...number of times in this decision. For ease of reference, I set out their citations here: Derbyshire County Council v EM and DM (SEN) [2019] UKUT 240 (AAC); [2020] ELR East Sussex County Council v TW [2016] UKUT 528 (AAC). TM v London Borough of Hounslow [2009] EWCA Civ 859; [2011] ELR 137. ......