Nottinghamshire County Council v SF And GD (Rev 1)

Whether an education, health and care plan is necessary under section 37(1) of the Children and Families Act 2014 is a fact-specific evaluative judgment. The word should not be exhaustively defined.

The relevant comparison is with provision generally made for children of the same age in mainstream schools in England. Adequate existing provision and satisfactory progress are relevant, but they do not exhaust the circumstances in which a plan may be necessary. The Code of Practice guides the decision but cannot narrow the statutory test. Appellate intervention is justified only in rare cases involving no evidential support, a misunderstanding of the evidence, or a conclusion that no reasonable tribunal could reach.

Nottinghamshire County Council appealed against an order of the Upper Tribunal (Administrative Appeals Chamber) dated 13 August 2019. The Upper Tribunal had upheld the First-tier Tribunal’s decision of 10 December 2018 allowing the parents’ appeal and requiring an education, health and care plan for their child, HD.

The First-tier Tribunal found that the school had identified and was meeting HD’s special educational needs and that he was making progress. It also found that his provision required continuing monitoring and adaptation and was unlikely to be replicated generally in mainstream schools nationally. The central issues were the meaning and application of section 37(1) of the Children and Families Act 2014, the effect of the statutory national comparator, and the relevance of the Code of Practice.

The Senior President gave the leading judgment. Lord Justice Coulson and Lord Justice Newey agreed.

1. Appeal dismissed. The First-tier Tribunal was entitled to conclude that an education, health and care plan was necessary.
2. Meaning of necessity. The word necessary is in common use and should not be over-defined. Whether a plan is necessary is an evaluative judgment to be deduced from the facts of the individual case. It depends on the nature and extent of the provision required. The Court approved the approach in Buckinghamshire CC v HW [2013] ELR 519, Manchester City Council v JW [2014] UKUT 168 and Hertfordshire CC v MC and KC (SEN) [2016] UKUT 0385 (AAC).
3. Statutory comparison. Under section 21(1) of the Children and Families Act 2014, the comparison is with provision generally made for others of the same age in mainstream schools in England. It is therefore a national comparison, not one confined to the local authority’s area.
4. Code of Practice and prospective assessment. The Code of Practice is guidance and is not binding law. It cannot restrict the generality of the statutory test. Existing provision, progress and mainstream resources are relevant considerations, but they are not exclusive conditions of necessity. An EHC-plan decision is prospective and may take account of the need for provision to be monitored and adapted.
5. Appellate review. Applying the principle in Re B (a child) (care order: proportionality: criterion for review) [2013] UKSC 33, [2013] 2 FLR 1075, an appellate tribunal should intervene only in a rare case where the conclusion lacks evidential support, rests on a misunderstanding of the evidence, or is one that no reasonable tribunal could reach. The First-tier Tribunal had directed itself correctly, made findings supported by the evidence, and gave reasons for its evaluative conclusion. A different tribunal might have reached a different judgment, but that was insufficient for appellate intervention.

1. Court of Appeal (Civil Division) dismissed Nottinghamshire County Council’s appeal on 3 March 2020.
2. Upper Tribunal (Administrative Appeals Chamber) dismissed the local authority’s appeal and upheld the First-tier Tribunal’s decision by an order dated 13 August 2019.
3. First-tier Tribunal (Health Education and Social Care Chamber) allowed the parents’ appeal on 10 December 2018 and concluded that an education, health and care plan was necessary.