TW & Anor v Hampshire County Council

A local authority cannot specify special educational provision in an education, health and care plan on the basis that it will be delivered by a young person’s privately funded carers. Carers may reinforce a consistent approach outside the educational day, but that does not permit the plan to require them to deliver specified special educational provision.

An agreed formulation of provision may be revisited where later evidence shows it rests on a misunderstanding, provided the affected party has an adequate opportunity to address the new position. The tribunal must identify provision required by the child or young person’s needs, rather than tailor it to a proposed placement.

S’s parents appealed against a First-tier Tribunal decision concerning sections B, F and I of her education, health and care plan. The First-tier Tribunal had amended the plan and named School G, while rejecting the parents’ case for residential provision and their preferred placement.

The parents challenged, among other matters, the replacement of an agreed requirement for on-site nursing with nursing or equivalently trained staff; the addition of S’s carers as providers of parts of section F; support outside college hours; and School G’s suitability. The central issue was whether the First-tier Tribunal had erred in law in defining the special educational provision and selecting the placement.

1. Appeal allowed. The First-tier Tribunal erred in law by requiring S’s carers to provide elements of the special educational provision specified in section F. Its decision was set aside and remitted to a freshly constituted First-tier Tribunal.

2. Under Children and Families Act 2014, section 42, the local authority must secure specified special educational provision unless suitable alternative arrangements have been made. The First-tier Tribunal’s direction added carers as providers precisely where a consistent approach was required. That went beyond carers merely reinforcing educational work outside college hours and impermissibly made them responsible for specified provision. There were no suitable alternative arrangements: S’s deputy had not been asked to make them.

3. The error was material. The First-tier Tribunal had treated consistency by carers outside the college day as important to its conclusion that residential provision was unnecessary. Removing the carers from the plan would alter the provision on which it had rejected residential placement. That assessment required rehearing by a specialist First-tier Tribunal.

4. The remaining grounds failed. The First-tier Tribunal was entitled to revisit the agreed requirement for on-site nursing after evidence established that equivalently trained staff could administer the relevant medication. Written closing submissions gave the parents an adequate opportunity to respond. The tribunal was correcting a misunderstanding about required provision, not tailoring section F to School G.

5. The tribunal also gave adequate reasons for treating proposed evening social support as duplicative of other educational provision and for finding no demonstrated incompatibility between School G and the provision concerning showering or accessible mobility.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the appeal, set aside the First-tier Tribunal decision for error of law, and remitted the matter to a fresh tribunal.
• First-tier Tribunal (Health, Education and Social Care Chamber): Decision of 16 February 2022, number EH/850/21/00136. It amended the education, health and care plan and named School G.