MS & Anor v Hertfordshire County Council

An appeal on an error of law jurisdiction cannot be used to re-argue the factual merits. A tribunal need not investigate every piece of evidence where its findings address the material issue and are supported by the evidence.

An EHC plan must be sufficiently detailed and specific, and should normally quantify provision. Those requirements are subject to the need for a realistic, workable plan that permits appropriate professional judgment. Provision embedded in the curriculum may properly be expressed by reference to an applicable planning framework rather than by a fixed daily duration.

The appellants, parents of Michael, appealed under section 51 of the Children and Families Act 2014 against Section F of his EHC plan. They sought intensive ABA provision and speech and language therapy delivered by a qualified therapist.

The First-tier Tribunal accepted the Council’s alternative provision, removed references to ABA and directed that speech and language provision be embedded in the school day through the SCERTS daily planning grid. Permission to appeal was initially refused but was granted by the Upper Tribunal. The appeal raised whether the Tribunal had failed to consider material evidence and whether its specification of speech and language provision was impermissibly vague.

1. The appeal was dismissed. The First-tier Tribunal’s decision was not affected by a material error of law under section 11 of the Tribunals, Courts and Enforcement Act 2007.
2. The Tribunal was not required to investigate Michael’s exclusion further. Its directions seeking information about the exclusion had been made in relation to placement, an issue later resolved. The Tribunal had considered the exclusion insofar as it was relevant to the live issue, namely whether ABA provision was required. Its accepted evidence was that Michael had not regressed without ABA, but that the school had failed to meet his needs.
3. The challenge concerning evidence of regression was an attempt to re-argue the factual merits. The Tribunal had identified the issue, reviewed the competing evidence, explained why it preferred Ms Parkin’s evidence, and gave clear and cogent reasons. An appeal alleging an error of law could not reopen those factual findings.
4. The specification of speech and language provision was legally adequate. The most recent NHS report recommended provision in accordance with the SCERTS daily planning grid, in class and embedded in the curriculum. It did not specifically require 30 minutes per day. The Tribunal was entitled to balance precision with flexibility, particularly because quantifying provision embedded in the curriculum may be problematic.
5. The requirement that EHC plan provision be detailed and specific is qualified by the need for a realistic and practical document. The plan must permit professionals sufficient freedom to exercise judgment as circumstances change. The word “normally” in the relevant guidance does not make quantification invariable.
6. The First-tier Tribunal’s decision therefore stood and the appeal was refused.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed; the First-tier Tribunal decision was held not to contain an error of law.
• First-tier Tribunal (HESC Chamber): following the hearing on 14 June 2021, the appeal was partially refused. The Tribunal agreed to the proposed school placement, removed references to ABA, and amended the speech and language provision.
• Permission stage: permission was refused by Tribunal Judge McCarthy on 17 August 2021, but granted by Upper Tribunal Judge Markus QC on 26 October 2021.