Can Outcomes Be Appealed?

The judgment of the Upper Tribunal in the case of S v Worcestershire County Council [SEN] has now been released.

This new Special Educational Needs decision deals with three key points;

1. The operation of Children and Families Act 2014 in appeals concerning independent schools;

2. The powers of the Special Educational Needs & Disability Tribunal to change the outcomes detailed in Section E of an Education, Health and Care Plan;

3. The extent to which Section 19 Children and Families Act 2014 applies in appeals to the Special Educational Needs and Disability Tribunal.

The Judgment

This is an extremely lengthy judgment made by Upper Tribunal Judge Mitchell on 23rd February 2017. It runs to 89 paragraphs across 21 pages. As has been noted by other commentators, the judge apologises from the outset of the judgment for the delay in the preparation of it.

Background

The matter related to a young person who was aged 17 and who was supported by an Education, Health and Care Plan. That Education, Health and Care Plan had been issued on 11th March 2015.

The young person was due to sit his GCSEs three months after the Education, Health and Care Plan had been issued which meant that his placement after GCSEs was uncertain. That is obviously because the outcome of his GCSEs would very much dictate which placement he would attend. The school that the young person was attending at the time had predicted that the young person would achieve an E grade in GCSE English which he subsequently did secure.

The young person had Special Educational Needs relating to ADHD, communication skills, border cognitive skills, weak perceptual reasoning, difficulties with time management, difficulties with emotional skills, difficulties with anxiety and a need for an opportunity to explain breakdown in communications with peers and others.

After sitting GCSEs, the young person went to visit various further education placements. In particular, he visited an independent school and was offered a place there for the following academic year. The school was concerned that the young person would not be able to engage with the course that the young person had given an initial interest in and, therefore, he was not offered a place to pursue that course. However, the independent school was willing to waive requirements for particular GCSE levels.

The Local Authority was unwilling to agree to an independent placement and, instead, offered two mainstream further education institutions. Such an approach will no doubt be very familiar to many parents and young people.

As the young person was required by the Children and Families Act, he advanced the appeal himself before the Special Educational Needs and Disability Tribunal. He did not indicate that he wished to challenge the special educational provision contained within Section F of his Education, Health and Care Plan, however, he indicated that he wanted to go to the independent school because it would offer him specialist support.

The Local Authority resisted the appeal to the Special Educational Needs and Disability Tribunal arguing that;

1. The young person's needs could be properly met in a mainstream college;

2. The young person had not identified what provision it was that could not be made in the mainstream colleges.

3. That the young person had failed to provide evidence to support his assertion that he needed small classes and specialist teaching;

4. The independent school was not a suitable placement;

5. That a placement at an independent school may not be a reasonable use of resources.

Decision of the Special Educational Needs and Disability Tribunal

The Special Educational Needs and Disability Tribunal felt that it needed to resolve the following issues;

1. The suitability of the academic provision at the various placements.

2. The suitability of the provision proposed for meeting the young person's Special Educational Needs;

3. The costs of the respective placements.

The Special Educational Needs and Disability Tribunal concluded that it needed to apply both Section 9 of the Education Act 1996 and Section 39 of the Children and Families Act 2014.

The Tribunal made a number of findings of fact in respect of the young person's Special Educational Needs and the provision that was necessary to cater for those needs. Whilst the Tribunal found that the placement the Local Authority had named in the Education, Health and Care Plan was not suitable or sufficient for the young person's needs, it did not order any amendment to the Plan. Therefore, unsurprisingly, the young person appealed further to the Upper Tribunal. It is that appeal that this judgment relates to.

Decision of the Upper Tribunal

The Upper Tribunal decision deals with the specific points set out at the top of this piece. Specifically, how the Children and Families Act applies in relation to independent schools, the power of the Special Educational Needs and Disability Tribunal to change the outcomes in an Education, Health and Care Plan and the extent to which the Tribunal should have regard to Section 19 of the Children and Families Act 2014.

Having regard to a Child or Young Person's Views, Wishes and Feelings (Section 19 Children and Families Act)

The Local Authority, represented by a law firm known for assisting Local Authorities in appeals before the Upper Tribunal, tried to argue that the Special Educational Needs and Disability Tribunal should not consider the obligations of Section 19. The Upper Tribunal, quite rightly in our view, refused this submission.

The Upper Tribunal indicated that in complying with its fundamental procedural rules, the Special Educational Needs and Disability Tribunal quite rightly must have regard to the views of the child involved in the proceedings. In particular, if the child is a "young person" then they are bringing the appeal themselves. Naturally, therefore, the Special Educational Needs and Disability Tribunal will inherently consider the views of the child (young person).

The Role of "Outcomes" in an Appeal before the Special Educational Needs and Disability Tribunal

The Local Authority before the Upper Tribunal again attempted to restrict the ability of the Special Educational Needs and Disability Tribunal to deal with this matter.

It is worth bearing in mind again that it was a young person proceeding with this appeal and that that young person had focused on the main issue which was placement. That is a very common issue in all appeals brought by parties who are not represented.

Perhaps rather callously, the Local Authority representatives submitted to the Upper Tribunal that the Appellant, who was not legally qualified, should face an unsuccessful appeal because they had not set out a legally complete appeal form in the first instance.

The Upper Tribunal has refused to punish Appellants in such a way. What the Upper Tribunal has said is that the Special Educational Needs and Disability Tribunal has the ability to make any consequential amendments that are necessary within the Education, Health and Care Plan pursuant to the appeal. This is a helpful notice by the Upper Tribunal as it does mean that Local Authorities cannot bind Appellants, particularly those who are not assisted by representatives, to the content of their appeal form. If there are plainly other amendments that are necessary within the content of the appeal, the Special Educational Needs and Disability Tribunal has the ability to make those amendments irrespective of whether or not the correlating box on the appeal form has been ticked by the Appellant at the outset of the appeal.

Interestingly, the Upper Tribunal also noted that if the Special Educational Needs and Disability Tribunal makes changes to the content of the special educational provision in Section F of the Education, Health and Care Plan, it may also make changes to the outcomes contained in Section E of the Education, Health and Care Plan.

This is particularly important because there is not a standalone statutory right of appeal in respect of outcomes contained in an Education, Health and Care Plan. It is very important therefore that the Upper Tribunal has noted that if changes to special educational provision mean that there must, for the sake of sense, be an amendment to Section E of the Education, Health and Care Plan, the Special Educational Needs and Disability Tribunal has the statutory ability to make those amendments.

It has been queried by many commentators as to whether or not this judgment now creates a new right of appeal. In our view it does not.

What this judgment means is that if changes to Section F would render it necessary to change Section E, the Tribunal may do so. It does not give rise to a new right of appeal specifically in relation to outcomes.

Nonetheless this is a significant step forward when it comes to a very important element of the Education, Health and Care Plan.

How the Children and Families Act operates in cases where the appeal seeks for an independent school

The Upper Tribunal here reiterates what has now become generally accepted understanding. That is that Section 39 Children and Families Act creates a "presumption in favour of the preferred placement". That goes beyond the existing statutory provision found within Section 9 of the Education Act 1996 which previously applied in relation to appeals concerning independent schools.

The important point is that if the Appellant seeks an independent school which is approved under Section 41 of the Children and Families Act, there is a presumption in favour of that placement. It is then for the Local Authority to exempt from that presumption. That means that the burden falls on the Local Authority rather than the Appellant.

If the independent school is not approved further to Section 41, the test is one of "appropriateness". The Upper Tribunal has stated as follows "which school or other institution, or type of school or other institution, is considered appropriate to specify". In such a situation, we would revert to Section 9 Education Act 1996 and the existing well known case law of Hammersmith and Fulham LBC v L [2015] UKUT 0523(AAC).

Conclusion

Whilst this appeal to the Upper Tribunal was not successful on behalf of the young person, because ultimately a placement at the independent school was not secured, many of the decisions contained within it are very helpful for Appellants.

The submissions made by the Local Authority representatives, which is becoming a worrying trend, seemed to seek punitive treatment in respect of Appellants, particularly those who are unrepresented.

This Upper Tribunal judgment clearly indicates that the Special Educational Needs and Disability Tribunal has wide ranging powers in respect of the content of an Education, Health and Care Plan. That is good news and means that whilst the appeal form at the beginning of an appeal should be filled out properly, if at the hearing date issues arise which the appeal form did not foresee, the Local Authority cannot try to avoid dealing with those issues.

In respect of outcomes in particular, it is helpful to know that if changes to the Education, Health and Care Plan are necessary in Section F then it is also possible to order changes to Section E in order to make the Education, Health and Care Plan make sense.

If you are experiencing difficulties as set out above or otherwise in securing additional support for your child from the Local Authority, then please do not hesitate to contact our specialist education law solicitor team on 02920 291704