Upper Tribunal Confirms Duties to Provide Post-16 Education

The judgment in Gloucester County Council v EH (SEN) has been released today. This is very important for all special educational needs cases involving post-16 young people. It is also very interesting in light of the recent DfE Guidance on the topic.

In this appeal to the Upper Tribunal, Gloucestershire County Council were challenging a decision by the Special Educational Needs and Disability Tribunal to order that an Education, Health and Care Plan should be issued for a young person now aged 19 years old.

Background

The judgment provides a detailed history to the case. In summary the young person was issued with a Statement of Special Educational Needs in July 2014, whilst she was still attending compulsory education. The reason for issue of the Statement of Special Educational Needs was "because of high anxiety levels".

In or around March 2015, the Local Authority commenced a transfer review in order to consider whether or not the young person should make the move from Statement of Special Educational Needs to Education, Health and Care Plan.

During the transfer review process, the Local Authority secured advice as it is required to do by the Special Educational Needs and Disability Regulations 2014. That advice largely indicated that the young person had significant difficulties relating to anxiety, specifically education related anxiety. The vast bulk of the evidence that the Local Authority secured indicated that the young person had little idea in terms of what education she wished to pursue after she turned 18.

Within the information gathered by the Local Authority, one piece of advice, dated 3 June 2015, concluded that the young person "has considered applying for an Open University course [although] communicating with course providers through email could be difficult for her…"

Five days later, the young person was assessed by an independent Psychologist who concluded that she "wants to continue with her A-level studies". The independent Psychologist further concluded that "her mental health and ability to cope in social situations has decreased considerably".

Gloucestershire County Council considered the matter at the close of the transfer review process and concluded that the young person should not be issued with an Education, Health and Care Plan. It seems that the primary reason given was that Gloucestershire County Council had concluded that the young person wanted to engage in higher education.

The statutory position is that an Education, Health and Care Plan is not available for young people engaging in higher education. Therefore, Gloucestershire County Council took the view that it was unable to publish an Education, Health and Care Plan because the young person wanted to pursue higher education.

Unsurprisingly, when the matter was considered by the Special Educational Needs and Disability Tribunal, it recognised that the young person had only given a slight indication that she was thinking about higher education. The Special Educational Needs and Disability Tribunal appear to have concluded that it was unreasonable for Gloucestershire County Council to bind the young person to a one-off indication of a possibility.

In light of the evidence, the Special Educational Needs and Disability Tribunal ordered that Gloucestershire County Council should make and maintain an Education, Health and Care Plan for her.

Gloucestershire County Council then took the rather extraordinary decision to seek to appeal that decision to the Upper Tribunal. They were supported by external solicitors. The basis of the appeal to the Special Educational Needs and Disability Tribunal was as follows:

• The Tribunal erred in law by deciding an Education, Health and Care Plan was necessary when it had no details (so it is alleged) about the young person's educational wishes.
• The Special Educational Needs and Disability Tribunal erred in law by failing to identify the Special Educational Needs provision required that "could not be provided from within the resources available to an educational setting".
• A generalised assertion that the Special Educational Needs and Disability Tribunal had erred in law by overlooking the absence of any obligation on the part of the Local Authority to make educational provision for children over compulsory school age.

Decision of the Upper Tribunal

The three crucial points made by the Upper Tribunal in its judgment are as follows:

• That the Special Educational Needs and Disability Tribunal has to look at the reality of the situation rather than, as the Local Authority pushed for, consider a hypothetical situation.
• There is, in fact, a clear statutory duty to provide education for young people over compulsory school age further to the content of the Children and Families Act 2014. The Upper Tribunal went so far as to say as follows "that the argument that Council's have no duty… is to misunderstand the purpose of the Children and Families Act".
• It is not for the Appellant in an appeal to the Special Educational Needs and Disability Tribunal to establish exactly what educational package they are seeking. Rather, it is for the Local Authority to establish that any educational provision that they may required can be delivered without an Education, Health and Care Plan

The Upper Tribunal levied some significant criticism in relation to Gloucestershire County Council in this judgment. In particular, the Upper Tribunal noted the young person's severe education related anxiety.  

Our Comment

This Upper Tribunal judgment is the last in a long line of attempts by Local Authorities to claim that young people over the age of compulsory school age have no statutory entitlement to further education from the Local Authority. Further, there has been a worrying trend in Local Authority arguments at Upper Tribunal to try to require Appellants to set out precisely what educational package they require which indicates the necessity for an Education, Health and Care Plan.

This judgment clearly sets out that a person appealing to the Special Educational Needs and Disability Tribunal does not have to specify exactly what provision they need which requires an Education, Health and Care Plan. Further, the Special Educational Needs and Disability Tribunal does not have to slavishly dictate the special educational provision that is required in order to access an Education, Health and Care Plan.

It is interesting that this judgment has been released today, a little over a week since the Department for Education released new guidance in relation to the entitlement for special educational provision for post-16 year olds. We wrote about that guidance previously. This seems to be another judgment of the Upper Tribunal which does not sit comfortably with that guidance.

Whilst the Upper Tribunal judgment does not expressly say that the Code of Practice or the Regulation requires an automatic provision of an Education, Health and Care Plan for those people moving out of Statements of Special Educational Needs it does say as follows:

"I do not read the Tribunal's decision as including a finding that, in all cases, the default position is that young people who previously had Statements are entitled to EHC Plans (although the Code of Practice might arguably be read in that way)."

Therefore, it seems that the tension between Upper Tribunal judgments and guidance being issued by the Department for Education continues. As noted by many commentators further to our last piece, it is unlikely that this is to be resolved without further litigation and potentially applications for judicial review at the High Court. Clearly, anyone making those applications will have to face litigation they otherwise would not have to if the guidance issued had not been so controversial.

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