Essex CC v DH

A tribunal which orders residential special educational provision must make sufficient findings and give adequate reasons showing why the provision meets an educational, rather than social-care or respite, need. A need for consistency between home and school, or the fact that out-of-hours activities may reinforce learning, does not by itself establish a need for education outside normal school hours.

Whether an error of law was material is assessed by reference to the decision when made. Later events may instead bear on the Upper Tribunal’s discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 whether to set aside that decision.

The First-tier Tribunal allowed the parents’ appeal concerning Jessica’s statement of special educational needs and ordered that a special school be named for a 38-week residential placement. Essex County Council appealed, principally contending that the tribunal had not adequately explained why residential provision was educational provision rather than respite or social care.

After the First-tier Tribunal’s decision, an annual review resulted in an amended statement which also provided the 38-week residential placement. The parents did not challenge that amended statement. The central issues were whether the Upper Tribunal retained jurisdiction, whether the First-tier Tribunal had erred in law, and whether its decision should be set aside or remitted.

1. The appeal was allowed to the limited extent that an error of law was identified, but the First-tier Tribunal’s decision was not set aside. The Upper Tribunal retained jurisdiction because the appeal was from the First-tier Tribunal’s decision on a point of law, even though the later annual review had removed that decision’s continuing practical effect.

2. The First-tier Tribunal had failed adequately to explain why Jessica required a 38-week residential, or waking-day, curriculum as a matter of educational need. Its findings that she was making pleasing educational progress on a non-residential basis sat uneasily with its conclusion that residential education was necessary for her to learn. It also did not clearly distinguish educational provision from identical provision available as respite care.

3. The tribunal’s apparent acceptance that greater contribution to Jessica’s life meant greater education came close to the error identified in Hampshire County Council v JP (SEN) [2009] UKUT 239 (AAC). Consistency across home and school does not, without more, establish a need for educational provision outside ordinary school hours.

4. Materiality of the error fell to be assessed when the First-tier Tribunal made its decision. The subsequent annual review was relevant instead to the discretion under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007. Setting aside would require a fresh decision about Jessica’s current needs, but the amended statement now governed the parties’ position.

5. Under the statutory scheme, a statement is maintained and may be amended following periodic review. Once amended, the earlier version no longer governed the relationship between the parties. A legally distinct parental appeal would be required against the amended statement. Remittal would therefore have no useful subject matter and would improperly enable the local authority, which had no statutory appeal right, in substance to challenge its own annual-review decision.

• Upper Tribunal (Administrative Appeals Chamber): Held that the First-tier Tribunal had erred in law, but exercised its discretion not to set aside its decision: [2016] UKUT 463 (AAC).

• First-tier Tribunal: Allowed the parents’ appeal and directed a 38-week residential placement at the named special school (reference SE881/15/00021).