Gloucestershire County Council v EH

On an appeal against a refusal to prepare and maintain an education, health and care plan, the First-tier Tribunal must assess the young person’s current circumstances at the hearing. It is not confined to the circumstances at the date of the local authority’s decision or of the appeal.

The statutory question is whether an EHC plan is necessary. A young person need not provide a fully developed educational programme before that question can be answered. Nor must the Tribunal always decide whether required provision could be delivered from ordinary mainstream resources. Those matters depend on the evidence and the young person’s circumstances.

The local authority declined, following a transfer review, to prepare and maintain an EHC plan for a young person with severe education-related anxiety. It considered that she intended to undertake an Open University course and that higher education fell outside the EHC-plan regime.

The First-tier Tribunal allowed the young person’s appeal and ordered the authority to make and maintain an EHC plan. It found that she no longer intended immediately to pursue higher education, that substantial specialist support would be needed for her to re-engage with education, and that the absence of a settled placement did not prevent a finding of necessity.

The authority appealed, contending that the Tribunal should have assessed the position at the transfer-review date and could not decide that an EHC plan was necessary without a defined educational programme or a finding about mainstream resources.

1. Appeal dismissed. The First-tier Tribunal made no error of law in ordering the local authority to prepare and maintain an EHC plan.

2. The Tribunal was required to consider the young person’s circumstances at the date of its hearing. The reasoning in Wilkin v Goldthorpe (Chair of the SEN Tribunal) applied equally under the Children and Families Act 2014. Parliament had not indicated that an appeal under the new regime should be determined by reference only to the position at the local authority’s decision.

3. The evidence permitted the finding that the young person had only an aspiration, rather than a realistic immediate expectation, of studying an Open University course. She therefore did not fall outside the statutory meaning of education by reason of an intended higher-education course.

4. The absence of a fully developed educational programme did not prevent a lawful decision under section 37(1). In a refusal-to-make-plan appeal, the statutory assessment process does not impose a universal requirement for the appellant to supply a settled and detailed proposal before necessity can be determined. The young person’s anxiety and disrupted education explained why no such proposal was available.

5. The Tribunal was not required, on this evidence, to decide whether the necessary provision could be supplied from ordinary mainstream resources. Its finding that substantial specialist support was required was supported by the documentary evidence. The authority’s failure to explain how the young person’s needs could be met in any educational setting was a legitimate consideration.

6. Once an EHC plan specifies provision, section 42(2) imposes a duty on the authority to secure it. Section 61 did not require a prior determination that mainstream education was inappropriate before the Tribunal could decide that an EHC plan was necessary. A remittal rather than an order to make a plan was not required.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the local authority’s appeal and upheld the First-tier Tribunal’s order.
• First-tier Tribunal: allowed the young person’s appeal on 1 October 2015 (ref. EH 916/15/00013) and ordered the local authority to prepare and maintain an EHC plan.