London Borough of Camden v KT

Education, Health and Care Plans may specify special educational provision otherwise than in a school where the statutory conditions for such provision are met. Such provision may properly be included in Section F, even though no school is named in Section I.

A local authority’s duty to secure provision is qualified where a parent has made suitable alternative arrangements. The First-tier Tribunal cannot require a parent to make those arrangements. Questions about subsequent enforcement or whether arrangements remain suitable are generally matters for later review of the plan.

Rule 44 permits correction only to reflect what the tribunal intended to decide. An error may nevertheless be immaterial where the same result could lawfully have been reached through review or by the Upper Tribunal remaking the decision.

P had autism, attention deficit hyperactivity disorder and dyslexia. He had an existing Education, Health and Care Plan, and the First-tier Tribunal authorised special educational provision to be delivered otherwise than in a school.

The local authority appealed, arguing that the First-tier Tribunal had misunderstood its position, should have named a school, had improperly amended its decision under rule 44, gave inadequate reasons, and specified provision that was insufficiently clear or enforceable.

The Upper Tribunal considered whether the First-tier Tribunal had erred in law in applying the statutory framework, specifying education otherwise than in a school, and assessing the adequacy of the provision and its reasons.

1. Appeal dismissed. The First-tier Tribunal had not made an error on a point of law.
2. Under section 61 of the Children and Families Act 2014, education otherwise than in a school may be arranged where the authority is satisfied that provision in a school would be inappropriate. The First-tier Tribunal independently reached that conclusion on the evidence. Because no school was to be attended, regulation 12(1)(i) of the Special Educational Needs and Disability Regulations 2014 did not require a school to be named in Section I.
3. Education otherwise than in a school could properly be included in Section F. The fact that some provision referred to staff, routines or teaching methods did not establish that it had to be delivered in a school.
4. Rule 44 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 permitted correction only where the amendment brought the decision into line with what the tribunal had decided. It did not authorise amendment merely because the tribunal should have decided differently. The amendment was nevertheless immaterial. The First-tier Tribunal could have used its review power under section 9 of the Tribunals, Courts and Enforcement Act 2007, and the Upper Tribunal could have remade the decision under section 12.
5. The First-tier Tribunal gave adequate reasons for specifying dyslexia provision. It was entitled to accept the evidence and reasons of Dr Kelly, and was not required to address every criticism advanced by the local authority.
6. Section 42 of the Children and Families Act 2014 imposes a duty to secure specified provision, subject to the parent having made suitable alternative arrangements. Neither the local authority nor the tribunal could impose that responsibility on the parent. If suitable arrangements were not made, the appropriate course would be to review and revise the plan.
7. The challenged provisions were sufficiently specific in context. Some matters necessarily involved professional judgment, and the plan as a whole supplied relevant particulars. The general allegation that Section F was unworkable was too unparticularised to establish an error of law.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed; the decision of the First-tier Tribunal was upheld as amended.
• First-tier Tribunal (Health, Education and Social Care Chamber): decision dated 21 September 2022 and re-dated 15 December 2022, authorising the relevant EHCP provision.