Worcestershire County Council v SE

CourtUpper Tribunal (Administrative Appeals Chamber)
JudgeJudge West
Neutral Citation[2020] UKUT 217 (AAC)
SubjectDisability discrimination in schools,West,M,Special educational needs - special educational provision - other
Publication Date22 July 2020
Date02 July 2020
Worcestershire County Council v SE [2020] UKUT 217 (AAC)
IN THE UPPER TRIBUNAL Appeal No. HS/531/2020(V)
(ADMINISTRATIVE APPEALS CHAMBER)
ON APPEAL FROM THE FIRST TIER TRIBUNAL (HESC)
(SPECIAL EDUCATIONAL NEEDS & DISABILITY)
Tribunal Ref EH885/19/00048
BEFORE JUDGE WEST
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 child in these proceedings. This order does
not apply to (a) the child’s parents (b) any person to whom the child’s parents, in
due exercise of their parental responsibility, disclose 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 child where knowledge of the matter is
reasonably necessary for the proper exercise of the functions.
DECISION ON THE APPLICATION FOR PERMISSION TO APPEAL
AND THE APPEAL
The application for permission to appeal against the decision of the First-tier Tribunal
(HESC) (Special Educational Needs & Disability) (which sat on 7 January 2020)
dated 23 January 2020 under file reference EH885/19/00048 on grounds one, two and
five is granted, but refused on the other grounds. The appeal on grounds one, two and
five is nevertheless dismissed. The decision does not involve a material error on a
point of law.
This determination is made under section 11 of the Tribunals, Courts and
Enforcement Act 2007.
Worcestershire County Council v SE [2020] UKUT 217 (AAC)
PRELIMINARY MATTERS
This decision follows a remote hearing which has been consented to by the parties. As
required, I record that:
(a) the form of remote hearing was V (video by Skype). A face to face hearing was
not held because it was not practicable in the light of Government guidance on urgent
matters of public health and the case was suitable for remote hearing, involving an
application for permission to appeal (and, as was agreed at the hearing, an appeal to
follow if permission were granted) on pure matters of law. Further delay would be
inexpedient as this is an application for permission to appeal (and, as was agreed at
the hearing, an appeal to follow if permission were granted) in a special educational
needs and disabilities case involving a child
(b) the documents to which I was referred were contained in (i) a First-tier Tribunal
paper bundle of 515 pages and 8 unnumbered pages, (ii) an unnumbered and
unpaginated supplementary paper bundle of approximately 100 pages, (iii) a
Framework for Action document consisting of 3 pages and a Dyslexia Assessment
from the Learning Support Team consisting of 6 pages (both dated 5 December 2019)
and (iv) an Upper Tribunal paper bundle of 46 pages
(c) the order and decision made are as set out above.
REASONS
Introduction
1. An appeal to the Upper Tribunal lies only on “any point of law arising from a
decision” (section 11(1) of the Tribunals, Courts and Enforcement Act 2007), not on
the facts of the case. The Upper Tribunal has a discretion to give permission to appeal
if there is a realistic prospect that the First-tier Tribunal’s decision was erroneous in
law or if there is some other good reason to do so (Lord Woolf MR in Smith v.
Cosworth Casting Processes Ltd [1997] 1 WLR 1538). In the exercise of its
discretion the Upper Tribunal may take into account whether any arguable error of
law was material to the First-tier Tribunal’s decision
Worcestershire County Council v SE [2020] UKUT 217 (AAC)
2. The parties to the appeal are the Appellant, which is the Worcestershire County
Council (“the Council”), and the Respondent, who is the child’s mother. In order to
preserve her anonymity, and meaning no disrespect to her, I shall refer to the
Respondent’s daughter only as “C. The appeal was originally against the terms of
Section I of C’s Education, Health and Care Plan (“EHCP”) dated 6 August 2019
(pages 81 to 93),
1
although with agreement it was expanded at the original hearing to
take in the terms of Sections B and F as well. The Council’s proposal was that C
attend Westacre Middle School (“Westacre”), a mainstream middle school, for her
secondary education, whilst her mothers position was that she should attend Bredon
School (“Bredon”), an independent (non-s.41 approved) dyslexia-specialist school.
3. In summary, the Tribunal made certain amendments to Sections B and F and
named Bredon in Section I in place of Westacre.
4. The Council sought permission to appeal to the Upper Tribunal from the decision
of the First-tier Tribunal which it made after a hearing on 7 January 2020. The
Tribunal produced its written decision on 23 January 2020 (UT pages 24 to 40).
Permission to appeal was initially refused by Tribunal Judge McCarthy on 16 March
2020 (UT pages 41 to 44). The Council applied to the Upper Tribunal for permission
to appeal on 25 March 2020 (UT pages 3 to 10). Upper Tribunal Judge Ward directed
an oral hearing of the application for permission to appeal and made case
management directions on 27 April 2020 (UT pages 45 to 46). I heard the application
for permission to appeal by video (by Skype) on the morning of 28 May 2020. The
hearing was attended over the videolink by Ms Laura Thompson of EMW Law for the
Council and by the child’s mother as Respondent and I am grateful to both of them for
their assistance and their submissions. The Respondent put in some additional written
submissions after the hearing, to which I refer below.
5. The application for permission to appeal was against the decision of the First-tier
Tribunal concerning C’s EHCP and placement. The Tribunal had allowed the
1
Page references are to the main First-tier Tribunal bundle unless other wise stated. References to pages
in the Upper Tribunal bundle are designated by the prefix “UT”.

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