LC & Anor v Hampshire County Council

Where parents do not request that a particular school be named in an education, health and care plan, the tribunal must apply the holistic question under section 40(2)(a) of the Children and Families Act 2014: whether the proposed school is appropriate for the child. A tribunal’s use of the narrower suitability test under section 39(4)(a) is an error of law, but it is not material if the tribunal adequately considered the relevant welfare and safeguarding evidence and would have reached the same result under the correct test. The Upper Tribunal left undecided whether an extended and gradual transition before attendance at a school’s site can lawfully support naming that school in Section I.

The appellants appealed against the First-tier Tribunal’s decision of 11 May 2023 concerning their son’s education, health and care plan. The First-tier Tribunal amended the plan, including by naming an independent special school in Section I, although the appellants sought no named school and education otherwise than in a school.

Permission to appeal was granted on whether the tribunal had applied the wrong statutory test, failed adequately to address evidence concerning welfare and safeguarding risks at the proposed school, and unlawfully named a school which the child would initially attend only through a gradual transition. The central issue was whether the identified error of law was material.

1. The appeal was dismissed. The First-tier Tribunal’s decision did not involve an error of law requiring correction.
2. Because the appellants had not requested that a particular school be secured, the applicable question under section 40(2)(a) of the Children and Families Act 2014 was whether the proposed school was appropriate for the child. The tribunal had instead applied the narrower test under section 39(4)(a), asking whether the school was suitable for the child’s age, ability, aptitude and special educational needs. That was an error of law.
3. The error was not material. The tribunal had adequately understood and addressed the evidence that the child might face welfare or safeguarding risks at an SEMH school. It considered that those risks could be mitigated by an extended and gradual transition, and that the proposed school’s provision for children with SEMH difficulties and other complex needs associated with autism reduced the force of the concern.
4. The tribunal had taken the relevant email evidence into account. There was therefore no procedural error in proceeding without oral evidence from its author, since oral evidence would not materially have altered the tribunal’s decision.
5. The appellants did not pursue the argument concerning whether the child could lawfully be treated as attending the named school during an extended transition. The Upper Tribunal accordingly expressed no concluded view on that issue. It noted, without deciding the point, the approach in NN v Cheshire East Council [2021] UKUT 220 (AAC) that “to be attended by” means “to be present at”, and that presence for at least part of the time may suffice.
6. Permission on the remaining arguments was refused and the permitted ground was not made out.

• Upper Tribunal (Administrative Appeals Chamber): appeal dismissed. The First-tier Tribunal decision dated 11 May 2023 was held not to involve an error of law.
• First-tier Tribunal (HESC Chamber): amended Sections B, F and I of the child’s plan and made recommendations concerning Sections C and G.