JD v South Tyneside Council

A statement of special educational needs must specify the provision required with sufficient clarity and specificity to leave no doubt about what has been decided and what is needed for the individual child. Recommendations, provisions which merely may be helpful, unspecified programmes, and aspirational statements do not meet that standard.

Part 3 has legal force because the local authority must arrange the special educational provision specified there. NHS provision should not be included in that part, since the statutory scheme does not impose an equivalent duty on NHS bodies. A material error cannot be treated as immaterial where its possible effect on the outcome cannot safely be excluded.

The father appealed against a First-tier Tribunal decision dismissing his challenge to Parts 2 and 3 of his daughter’s statement of special educational needs, maintained by the local authority. He contended that the stated needs and provision were wrongly described, that Part 3 lacked specificity, and that it wrongly included NHS occupational-therapy provision.

The Upper Tribunal considered whether the First-tier Tribunal had adequately specified special educational provision, whether NHS provision could lawfully appear in Part 3, and the appropriate disposal after identifying errors of law. It also considered whether the case should be returned to the original tribunal for further reasons, or instead remitted for a fresh hearing.

1. Appeal allowed. The First-tier Tribunal’s decision involved material errors of law. It was set aside and the appeal was remitted for a rehearing before a differently constituted First-tier Tribunal.

2. Applying the standard stated by Laws J in L v Clarke & Somerset County Council [1998] ELR 129, Part 3 was not sufficiently specific. Its references to recommendations, individual programmes without stated content, teaching that may be helpful, and opportunities for success did not state clearly what provision the local authority was required to arrange. Numerical quantification was not invariably necessary, but it did not answer those deficiencies.

3. The First-tier Tribunal also erred by placing an occupational-therapy programme to be devised and implemented by NHS bodies in Part 3. Under Education Act 1996, Part 3 attracts the local authority’s duty to arrange the special educational provision specified. The statutory SEN scheme did not impose a corresponding duty on NHS bodies and required educational and non-educational provision to be separately specified. The error could not be dismissed as a harmless slip because its effect on the remainder of Part 3 could not safely be known.

4. The Tribunal declined to seek amplified reasons from the original panel. Although English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 605 could suit ordinary civil litigation, such a course in SEN appeals risked rerunning the specialist evaluative reasoning process. The approach in R (Oxfordshire CC) v GB [2001] EWCA Civ 1358 was more apt.

5. The Upper Tribunal had no identified power, and lacked the necessary assessment material, to convert the statement into an education, health and care plan. The remittal would instead leave the transitional legislation to require an EHC needs assessment once the appeal had been fully determined.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the father’s appeal, set aside the First-tier Tribunal decision, and remitted the matter to a differently constituted panel.
• First-tier Tribunal: On 20 January 2015, ref. no SE 393/14/00003, dismissed the father’s appeal concerning the contents of his daughter’s statement of special educational needs.