AA & Anor v North Somerset Council

The statutory test for arranging special educational provision otherwise than at a school is whether, in general, it would be inappropriate for the required provision to be made in a school. The disappearance of a particular proposed placement does not, by itself, engage that test or make an adjournment necessary. An appellate tribunal must determine whether the First-tier Tribunal erred in law within the permitted ground of appeal; it cannot conduct a general investigation into a party’s conduct. Unsupported factual assertions, especially on disputed procedural matters, should not be accepted uncritically.

The parents appealed against an EHC Plan made by North Somerset Council for their son. They sought education otherwise than at school for his final year of primary education, followed by transition to a named secondary school. The First-tier Tribunal rejected that case, concluded that the required provision could be made in a school, and specified a mainstream school type without naming a particular placement.

Permission to appeal was granted on the issues whether the late revelation that the proposed placement at Belgrave School had been withdrawn rendered the proceedings unfair, and whether the Tribunal should have considered an adjournment. The Upper Tribunal also considered the effect of subsequent changes to the child’s EHC Plan and placement.

1. Appeal dismissed. The First-tier Tribunal had not erred in law.
2. Under section 61 of the Children and Families Act 2014, the question is whether it would be inappropriate for the special educational provision required by the child to be made in a school. The reference to “a school” makes the test general rather than dependent on the availability or suitability of one particular proposed placement.
3. The withdrawal of Belgrave School’s offer meant that it ceased to be a practical placement option. It did not materially affect the parents’ ability to argue that section 61 applied, because that issue concerned whether the required provision could appropriately be delivered in a school generally.
4. The parents had not shown material prejudice arising from the late change. They were represented at the First-tier Tribunal, no adjournment was shown to have been requested, and the need for an adjournment was not obvious. Upper Tribunal proceedings do not permit represented parties to revisit litigation strategy adopted below.
5. The Upper Tribunal criticised the local authority’s appeal response for relying on unsupported and largely hearsay assertions. The court emphasised the need for evidence capable of being fairly assessed, but this did not require a formal hearing in the present case.
6. Even if the appeal had succeeded, setting aside and remitting or remaking the decision under section 12(2) of the Tribunals, Courts and Enforcement Act 2007 would have served no practical purpose because the child’s current EHC Plan and placement had materially changed.

• Upper Tribunal (Administrative Appeals Chamber): appeal against the First-tier Tribunal’s decision of 4 August 2021 dismissed; the First-tier Tribunal had not made an error on a point of law.
• First-tier Tribunal (Health, Education and Social Care Chamber): rejected the parents’ case for education otherwise than at school and specified a mainstream school type in the EHC Plan.