S v Worcestershire County Council

On an appeal concerning the naming of an educational placement in an EHC plan, the First-tier Tribunal must identify the institution it considers appropriate. It may take account of the general educational provision offered, as well as the ability to meet special educational needs.

Special educational provision must be sensibly linked to the plan’s outcomes. Although outcomes are not independently appealable, the Tribunal may make consequential amendments to them where it has amended needs or provision. It must consider whether amendments are needed to leave the plan workable and up to date. The statutory preference for a requested placement does not apply to an independent school which is not approved under section 41.

Robbie, a young person with special educational needs, appealed against an EHC plan which named his then independent school but did not identify a post-16 placement. He sought a place at another independent school, B School. The local authority contended that a mainstream further education college was appropriate.

The First-tier Tribunal dismissed the appeal. It found that both proposed institutions could meet Robbie’s special educational needs, but that B School’s proposed Level 3 course carried a greater risk of failure. It held that W College was the only appropriate placement, but made no amendment to the EHC plan.

On appeal, the issues included the effect of section 19, the Tribunal’s jurisdiction concerning outcomes, the need to amend the plan, and the statutory approach where a young person seeks an independent school which is not section 41 approved.

1. Appeal allowed. The First-tier Tribunal’s decision involved an error of law. It was set aside and remitted for a rehearing before a differently constituted panel.

2. Section 19 of the Children & Families Act 2014 concerns individual children and young persons, not merely strategic functions. In an appeal brought by a young person, the Tribunal necessarily has regard to that person’s views, wishes and feelings. However, if it complies with its procedural overriding objective, including full participation, it acts in the spirit of section 19 and need not separately frame its task by reference to that provision.

3. Under section 40(2), where the statutory preference for a requested establishment does not apply, the question is which institution or type of institution is appropriate. An institution’s ordinary educational provision is a legitimate consideration. The fact that an institution can meet special educational needs does not itself require it to be named. Accordingly, the First-tier Tribunal did not err merely by considering whether B School’s proposed course was educationally suitable.

4. Special educational provision and outcomes in an EHC plan must work together. Outcomes are not an independent head of appeal, but regulation 43(2)(f) of the Special Educational Needs and Disability Regulations 2014 permits consequential amendments. On a naming appeal, the Tribunal may amend special educational provision and may modify outcomes where necessary to reflect amendments to needs or provision.

5. The First-tier Tribunal erred by failing to consider whether its placement decision required amendments to make Robbie’s plan current and workable. Its finding that W College could provide corresponding provision did not explain whether the extant, specific provision would actually be delivered. The rehearing Tribunal must determine all issues afresh.

6. The section 39 preference did not apply because B School was not approved under section 41. The applicable statutory test was appropriateness, supplemented, where applicable, by section 9 of the Education Act 1996.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal, set aside the First-tier Tribunal’s decision, and remitted the case for a fresh hearing.

• First-tier Tribunal: on 3 September 2015, file reference EH 885/15/00001, dismissed the young person’s appeal concerning the post-16 placement in his EHC plan.