VS and RS v Hampshire County Council
| Jurisdiction | UK Non-devolved |
| Judge | Judge Ward |
| Neutral Citation | [2021] UKUT 187 (AAC) |
| Subject Matter | Ward,C |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Published date | 18 August 2021 |
VS and RS v Hampshire CC [2021] UKUT 187 (AAC)
1
IN THE UPPER TRIBUNAL Appeal No. HS/1637/2020
ADMINISTRATIVE APPEALS CHAMBER
On appeal from First-tier Tribunal (HESC Chamber)
Between: VS and RS Appellant
- v –
Hampshire County Council Respondent
National Autistic Society Interested Party
Before: Upper Tribunal Judge Ward
Hearing date: 29 April 2021
Representation:
Appellant: Alice Irving, instructed by Clifford Chance LLP
Respondent: Paul Greatorex, instructed by Head of Law and Governance
Interested Party: Steven Broach, instructed by Rook Irwin Sweeney LLP
DECISION
The decision of the Upper Tribunal is that the appeal fails in the result.
Although the decision of the First-tier Tribunal made on 16 July 2020 under number
EH850/20/00034 was made in error of law, I exercise my discretion not to set that
decision aside.
I direct that the Upper Tribunal office is to send a copy of this decision to the
Department for Education so that the Department is aware of it when there is an
evaluation of the Recommendations National Trial.
REASONS FOR DECISION
1. This case is one of the few at Upper Tribunal level that have so far had occasion to
look in any detail at the operation of the Special Educational Needs and Disability
(First-tier Tribunal Recommendations Power) Regulations 2017/1306 (“the
Recommendations Regulations”). Whether it is appropriate to regard it as a test
case may be disputed, however. The wider context is that the Regulations are in
force as part of a national trial, which is due to conclude on 31 August 2021. It is
understood that consideration will be given to whether to continue the power
thereafter and if so on what basis.
2. Section 37 of the Children and Families Act 2014 (“the 2014 Act”) provides, so far
as relevant:
“(2) For the purposes of this Part, an EHC plan is a plan specifying—
VS and RS v Hampshire CC [2021] UKUT 187 (AAC)
HS/1637/2020
2
(a) the child's or young person's special educational needs;
(b) the outcomes sought for him or her;
(c) the special educational provision required by him or her;
(d) any health care provision reasonably required by the learning difficulties and disabilities
which result in him or her having special educational needs;
(e) in the case of a child or a young person aged under 18, any social care provision which
must be made for him or her by the local authority as a result of section 2 of the Chronically
Sick and Disabled Persons Act 1970;
(f) any social care provision reasonably required by the learning difficulties and disabilities
which result in the child or young person having special educational needs, to the extent that
the provision is not already specified in the plan under paragraph (e).
(3) An EHC plan may also specify other health care and social care provision reasonably
required by the child or young person.
(4) Regulations may make provision about the preparation, content, maintenance,
amendment and disclosure of EHC plans.”
3. The content of an Education, Health and Care (“EHC”) Plan is dictated by reg.12
of the Special Educational Needs and Disability Regulations 2014/1530 (“the SEND
Regulations”):
“12. Form of EHC plan
(1) When preparing an EHC plan a local authority must set out—
(a) the views, interests and aspirations of the child and his parents or the young person
(section A);
(b) the child or young person's special educational needs (section B);
(c) the child or young person's health care needs which relate to their special educational
needs (section C);
(d) the child or young person's social care needs which relate to their special educational
needs or to a disability (section D);
(e) the outcomes sought for him or her (section E);
(f) the special educational provision required by the child or young person (section F);
(g) any health care provision reasonably required by the learning difficulties or disabilities
which result in the child or young person having special educational needs (section G);
(h) (i) any social care provision which must be made for the child or young person as a result
of section 2 of the Chronically Sick and Disabled Persons Act 1970 (section H1); (ii) any other
social care provision reasonably required by the learning difficulties or disabilities which result
in the child or young person having special educational needs (section H2);
(i) the name of the school, maintained nursery school, post-16 institution or other institution to
be attended by the child or young person and the type of that institution or, where the name of
a school or other institution is not specified in the EHC plan, the type of school or other
institution to be attended by the child or young person (section I); and
(j) where any special educational provision is to be secured by a direct payment, the special
educational needs and outcomes to be met by the direct payment (section J),
and each section must be separately identified.
(2) The health care provision specified in the EHC Plan in accordance with paragraph (1)(g)
must be agreed by the responsible commissioning body.
(3) Where the child or young person is in or beyond year 9, the EHC plan must include within
the special educational provision, health care provision and social care provision specified,
provision to assist the child or young person in preparation for adulthood and independent
living.
…”
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