AG v Brent Council

A tribunal deciding an appeal about social care provision in an EHC plan must give sufficient reasons for choosing the form of provision recommended. Reasons must engage with a party’s actual proposal and explain why it was rejected. An asserted absence of evidence cannot rationally explain giving one parent sole discretion where the tribunal’s own recommendation is equally non-specific. Appellate courts assess reasons as a whole, including what is implicit in the decision and the evidential context, but cannot invent important findings that the tribunal did not make. Section H2 records social care provision reasonably required by the child’s learning difficulties or disabilities; it is not merely a description of present circumstances. An error of law may be left uncorrected where setting aside and remitting the decision would be academic because a later plan and appeal supersede it.

The appellant appealed against the First-tier Tribunal’s dismissal of his appeal concerning sections B, F, C, G, D and H1 and H2 of his son’s EHC plan. The appeal under section 51(2)(c) of the Children and Families Act 2014 included whether both parents should be involved in social care provision.

The Upper Tribunal granted permission on the issue whether the First-tier Tribunal adequately explained its recommendation that the child’s mother alone should choose the social care activities accessed under sections D and H2. The central questions were whether the First-tier Tribunal made an error of law through inadequate reasons and, if so, whether its decision should be set aside.

1. Appeal allowed in part. The First-tier Tribunal’s decision involved a material error of law, but it was not set aside.
2. The statutory framework allowed the tribunal to recommend that social care needs or provision be specified or amended in an EHC plan. Section D concerns social care needs relating to special educational needs or disability. Section H2 concerns other social care provision reasonably required by the child’s learning difficulties or disabilities.
3. The First-tier Tribunal’s stated reason for giving the mother sole discretion was that the appellant had supplied no relevant evidence contradicting the respondent’s wording. That reasoning was inadequate. If the missing evidence was a positive proposal identifying activities, the tribunal’s own recommendation was no more specific. The absence of such evidence therefore did not rationally or fairly explain the result.
4. The tribunal had recorded that the appellant wanted involvement and had not found that he would obstruct all social care activities. His proposed wording sought consultation with both parents and school professionals. The tribunal did not explain why that proposal was rejected, or why the school professionals were excluded. The appellant was consequently unable fairly to understand why he lost, and the appellate tribunal could not properly assess the underlying reasoning.
5. The respondent’s arguments about practical difficulties and direct payments were unsupported by findings made by the First-tier Tribunal. Section H2 was not merely a record of existing circumstances; it specified provision reasonably required.
6. The appeal did not succeed on section 19 of the Children and Families Act 2014, and permission had not been granted on that ground. Although remittal would ordinarily have been appropriate, it would have been academic because a later EHC plan contained identical social care provision and was itself under appeal. The decision was therefore left standing.

• Upper Tribunal (Administrative Appeals Chamber): allowed the appeal in part. The First-tier Tribunal’s decision dated 15 May 2023 involved an error of law, but was not set aside.
• First-tier Tribunal (HESC Chamber): dismissed the appellant’s appeal concerning his son’s EHC plan.