SC & Anor v Worcestershire County Council

Under Education Act 1996 section 324, necessity for a statement depends on whether, without one, the decision-maker can be satisfied to a reasonable degree of certainty that the required special educational provision will be delivered. The statutory consequences of a statement, which secure and stabilise provision, are material to that assessment. A realistic doubt that ordinary school duties will secure the provision favours a statement.

Where the child is not at a maintained school, the NC & DH v Leicestershire County Council approach should be applied pragmatically. Detailed evidence of school funding is not invariably required. The tribunal may reach a lawful conclusion from reliable evidence of the provision maintained schools can and will make.

The parents appealed against two First-tier Tribunal decisions concerning their son’s special educational needs. In the first case, the Tribunal had dismissed an appeal against the local authority’s refusal to make and maintain a statement after a statutory assessment. An earlier Tribunal decision had been set aside and remitted because it had not demonstrated application of NC & DH v Leicestershire County Council [2012] UKUT 85 (AAC).

On rehearing, the First-tier Tribunal found that two possible maintained schools could meet the child’s needs from their resources, although he was then attending an independent school. In the second case, it dismissed an appeal against refusal to carry out a fresh statutory assessment. The common issue was how the statutory tests should operate, particularly where the child was not attending a maintained school.

1. Case 1: appeal dismissed. The First-tier Tribunal made no error of law in deciding that the local authority was not required by section 324 of the Education Act 1996 to make and maintain a statement.

2. The question of necessity under section 324 must be read in the context of the statutory scheme. A statement gives the child specific and relatively stable entitlements, including an enforceable duty on the authority to arrange the specified provision. The practical inquiry is whether, without a statement, the decision-maker can be satisfied to a reasonable degree of certainty that the required educational provision will be delivered. A realistic doubt that the maintained school’s best-endeavours duty and other obligations will secure that provision favours making a statement.

3. NC & DH v Leicestershire County Council [2012] UKUT 85 (AAC) was not rejected. Its two questions should, however, be applied pragmatically where the child does not attend a maintained school. The Tribunal could examine whether the maintained schools identified as possible placements could make the required provision, rather than attempt to answer the question by reference to the child’s current school.

4. Detailed evidence of delegated budgets or local funding arrangements was unnecessary on these facts. The Tribunal had reliable oral evidence from school staff, supported by its educational expertise, that the child’s relatively uncomplicated needs could be met from the schools’ resources. It was not required to devise statement-level detail, such as lesson plans or class placement, before deciding whether provision would be delivered.

5. Case 2: permission to appeal refused. Under section 323, the assessment duty arises where the authority considers that the child is, or probably is, one for whom it is necessary to determine special educational provision. A prior conclusive finding of necessity is not required. The First-tier Tribunal was entitled to rely on its findings in the statement case and on its analysis of the child’s progress. The proposed appeal had no realistic prospect of success.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal in the statement case and refused permission to appeal in the assessment case.
• First-tier Tribunal: on 3 August 2015, dismissed the remitted appeal against refusal to make a statement (SE 885/13/00018) and dismissed the appeal against refusal to assess (SE 885/14/00015).
• Earlier Upper Tribunal stage: set aside and remitted the first First-tier Tribunal decision on 21 November 2014 because it had not demonstrated application of NC & DH v Leicestershire County Council [2012] UKUT 85 (AAC).