When is an EHCP necessary? - New Upper Tribunal case

The Upper Tribunal has recently published its judgment for JP v Sefton MBC [2017] UKUT 0364 (AAC). This case concerns the statutory test of “necessity” for an Educational Health and Care Plan (EHCP). This case can be useful for parents who are looking for an EHCP for their child or young person.

Summary of the facts

This appeal concerns the decision by the First-tier Tribunal (FtT) that the child in question, Dean, did not require an Education, Health and Care Plan (EHCP) to be issued in order to meet his special educational needs (SEN).

For this appeal to the Upper Tribunal Dean’s mother was represented by Mr David Wolfe QC, and the local authority was represented by Miss Alexandra Cracknell.

Procedural history

Following a hearing on 5^th December 2016, the FtT dismissed the appeal that Dean required provisions to be made to meet his SEN in accordance with an EHCP. The Tribunal concluded that the evidence presented did not establish that an EHCP was necessary to meet Dean’s special educational needs. They determined that the provision required “may be made within a mainstream school setting, and from within existing resources, including available Top-up”.

Following this decision, Dean’s mother made an appeal to the upper tribunal and this hearing was held on 17^th August 2017.

Issues

During the hearing, Mr Wolfe made a number of specific challenges to the FtT’s decisions;

1. He firstly argued that, in deciding whether a mainstream school could meet Dean’s needs, the tribunal should have had regard only to the school’s standard budgetary allocation; top-up funding, which requires a separate application to the council’s central funds with no guarantee of success, should not be considered.
2. Mr Wolfe secondly argued that tribunal were not helpful in the way they worded the question as to whether an EHCP was required to meet Dean’s SEN.
3. Thirdly, Mr Wolfe focused on the Tribunal’s analysis of the evidence presented to them. He argued that they focused solely on the issue of whether Dean’s special needs can be met through previsions and resources normally available to a mainstream school, and not whether they will actually be met. This two part test was laid down in the case NC and DH v Leicestershire CC (SEN) [2012] UKUT 85 (AC).
4. Mr Wolfe’s final submission was that the Tribunal failed to properly identify the special educational provision that Dean needed.

Comments of the Tribunal

Following Mr Wolfe’s submissions, Nicholas Wikeley, Judge of the Upper Tribunal, made the following comments;

1. In response to Mr Wolfe’s first challenge, he stated that whilst he understood that the Code of Practice states  the local authority’s should have regard to “the resources normally available to mainstream schools”, it is not clear whether this includes further adjustments a school may be able to make with supplementary funds. He goes on to state, however, that the Code of Practice is guidance as to good practice only and that a specialist Tribunal will be aware of the practicalities of top-up funding arrangements.  The tribunal’s discussions and conclusion make it clear that they were aware that the possibility of top-up funding was part of the wider picture.
2. As to the second argument, Mr Wikeley acknowledged that the drafting was a little ‘rough around the edges’, however he stated that this did not mean that the underlying process of reasoning was deficient.
3. In response to Mr Wolfe’s third submission, the Upper Tribunal judge considers that this may be falling into the trap of taking an overly literal and semantic approach to the interpretation of previous case law which is not drafted with the same degree of lexicographical precision as statute.
4. Finally, with regard Mr Wolfe’s final challenge, whilst Mr Wikeley recognised that the Tribunal’s decision did not specifically refer to the special educational provision that Dean required, he also highlighted that the Tribunal’s decision should be read as a whole. The issue in question was not whether Dean had SEN, but whether the special educational provision regarded by Dean’s mother as being absolutely necessary, was just that. On this fundamental question, the Tribunal addressed the issue and came down on the local authority’s side of the argument.

Key learning point

The Upper Tribunal judge in this case made two key points worth noting.

Firstly, he refers on a number of occasions to the fact that, whilst previous case law lays down the two part test looking at the can and will questions, these tests should not be applied too rigorously. It is easy to fall into the trap of taking an overly literal approach in applying previous case law which has not been as rigorously drafted as the relevant legislation.

Secondly, Mr Wikeley highlights that it is crucial that the Tribunal’s decisions must be read as a whole. Individual paragraphs of the Tribunal’s decision should not be read in isolation; the Upper Tribunal should be considering the conclusions reached, having regard to all of the evidence considered in the case.

If you are experiencing difficulties in relation to exclusion, Special Educational needs or otherwise, then please do not hesitate to contact out specialist education solicitors on 02920 291 704.