TM & Anor v Liverpool City Council

When deciding whether a proposed school is appropriate for a child under section 39(5) of the Children and Families Act 2014, the tribunal must in substance have regard to the child’s views, wishes and feelings under section 19. A child’s positive wish for one school does not necessarily address that child’s feelings about another proposed school.

The weight of those matters is evaluative, but material and potentially severe opposition to the proposed placement must be identified and considered. Where relevant evidence of that opposition emerges after the hearing, fresh evidence may be admitted on appeal if the Ladd v Marshall conditions are satisfied and admission is fair and just. A material failure requires the placement issue to be reconsidered.

The parents appealed against a First-tier Tribunal decision dismissing their challenge to sections B, F and I of their son’s education, health and care plan. The material dispute concerned section I. The local authority proposed a mainstream primary school with an autism resource provision. The parents preferred a non-maintained special school.

The First-tier Tribunal held that both schools were suitable, but that the parents’ preferred school was incompatible with the efficient use of resources. It named the local authority’s school. After the hearing, a developmental paediatrics registrar reported the child’s severe anxiety and stated opposition to attending that school.

The central issues were whether the fresh medical evidence should be admitted and whether the First-tier Tribunal had sufficiently considered the child’s views, wishes and feelings when deciding that the proposed school was appropriate.

1. Appeal allowed. The First-tier Tribunal made a material error of law in deciding the school to be named in section I. Its decision was set aside as to that issue and remitted to a fresh First-tier Tribunal panel.

2. Section 19 of the Children and Families Act 2014 was relevant to the decision under section 39(5) that the local authority’s proposed school was appropriate. The tribunal did not need expressly to cite section 19, but it had to comply with it in substance by having regard to the child’s views, wishes and feelings.

3. The tribunal had considered the child’s wish to attend the parents’ preferred school. That did not demonstrate that it had considered his feelings about attending the local authority’s school. Section 9 of the Education Act 1996 overlapped with section 19 as to parental wishes, but section 19 was broader and specifically required consideration of the child’s feelings.

4. In the particular circumstances, there was no evidence in the bundle addressing the child’s feelings about the school later proposed by the local authority. The post-hearing registrar’s letter was highly relevant and apparently credible evidence of exceptionally strong feelings. Applying Ladd v Marshall [1954] EWCA Civ 1, the evidence could properly be admitted: equivalent evidence could not reasonably have been obtained before the hearing because it recorded the child’s actual reaction after being told of the proposed placement.

5. The failure to take those feelings into account was material. They might have affected the evaluative decision whether the proposed school was appropriate. The other, distinct parts of the First-tier Tribunal decision were not challenged and were left undisturbed. The placement issue was remitted because it required first-instance fact-finding and evaluation of evidence by a specialist tribunal.

• Upper Tribunal (Administrative Appeals Chamber): allowed the parents’ appeal, set aside the First-tier Tribunal decision as to the school named in section I, and remitted that issue to a fresh panel.
• First-tier Tribunal (HESC Chamber): on 3 January 2024, under reference EH341/23/00036, dismissed the parents’ appeal against sections B, F and I of the education, health and care plan.