Devon CC v OH

In an appeal concerning the institution named in an EHC Plan, the alternative institution must be appropriate. Special educational provision is that which is reasonably required to meet assessed needs; the statutory scheme does not confer a right to the provision most likely to achieve the best possible outcome.

Section 19(d) of the Children and Families Act 2014 requires regard to the need to support a young person for specified purposes. It does not itself require the local authority to secure the best possible outcomes. Aspirations must inform the process, but differ from appealable outcomes and provision. The Code of Practice must be considered where relevant, but cannot be used outside its proper context to alter that legislative framework.

O, a young woman with severe learning and communication difficulties, had an EHC Plan. She and her parents sought a place at F Centre, an approved independent specialist post-16 institution offering a course in horsemastership. Devon County Council proposed P College, which offered some equine-related activity and broader educational support at substantially lower cost.

The First-tier Tribunal allowed O's appeal and required the Plan to name F Centre. It held that P College was not appropriate because it would not achieve the best possible outcomes in adult life and would involve repeated learning. The local authority appealed on errors of law concerning the applicable test, aspirations, the Code of Practice, financial benefit, evidence and reasons.

The central issue was whether the tribunal had lawfully concluded that P College was not an appropriate alternative placement under the Children and Families Act 2014.

1. Appeal allowed. The First-tier Tribunal made material errors of law. It had to decide whether P College was an appropriate institution under section 39(5) of the Children and Families Act 2014, because F Centre was accepted as suitable and the authority relied only on inefficient use of resources.

2. The applicable standard remained one of appropriateness and of provision reasonably required to meet assessed special educational needs. A v Hertfordshire CC supported that approach. The 2014 Act preserved the material building blocks of the earlier statutory regime. The observations in R v Surrey CC ex parte H did not impose an abstract rule excluding all consideration of best outcomes. Properly understood, they required the legislation to be considered as a whole.

3. Section 19(d) required regard to the need to support the young person, in order to facilitate development and help achieve the best possible educational and other outcomes. It did not directly impose a duty to achieve those outcomes, nor make them a mandatory consideration independently of that need. Other relevant matters, including resources, remained capable of consideration.

4. Aspirations in section A of an EHC Plan, outcomes in section E, and special educational provision were distinct. An aspiration to work with horses could inform the process, but it was not itself an appealable outcome or an entitlement to a horse-focused course. The tribunal did not adequately have regard to paragraph 9.65 of the Code of Practice and wrongly used strategic-planning provisions in paragraphs 8.1 and 8.2 to displace the statutory framework.

5. The tribunal also erred in relying on repeated learning without addressing evidence that O's current equine ability did not demonstrate the level of qualifications previously obtained. Its legal test and reasons were therefore flawed. The parties were invited to make representations on whether the First-tier Tribunal decision should be set aside and on consequential directions.

• Upper Tribunal (Administrative Appeals Chamber): allowed Devon County Council's appeal and found that the First-tier Tribunal had erred in law: [2016] UKUT 292 (AAC).
• First-tier Tribunal: sitting at Exeter, allowed O's appeal against the content of her EHC Plan on 27 August 2015 (reference EH878/15/00004).