London Borough of Hillingdon v AP & Anor

An appeal under section 51 of the Children and Families Act 2014 is a general appeal. The First-tier Tribunal may determine issues of fact, law and judgment concerning an EHCP.

Written reasons must be read as a whole. Their headings or order need not reproduce the tribunal’s decision-making sequence if the reasons show that it applied the statutory chain from need to provision and then placement.

EHCP provision must be sufficiently clear to be workable, while retaining appropriate flexibility for professional delivery. A local authority must assist the tribunal with all relevant material and prepare alternatives where its proposed placement may not prevail.

AA had profound and complex needs. Her parents appealed under section 51 of the Children and Families Act 2014 against parts F and I of her EHCP. The First-tier Tribunal allowed the appeal and named School E, having concluded that AA required extended-day and residential provision.

The local authority appealed on four grounds. It alleged that the tribunal had addressed need, provision and placement in the wrong order; had failed to consider unreasonable public expenditure; had specified provision insufficiently precisely; and had inadequately reasoned its decision that physiotherapy was educational provision.

The Upper Tribunal considered whether those matters disclosed an error of law in the First-tier Tribunal’s decision of 7 March 2024.

1. Appeal dismissed. The First-tier Tribunal had made no error of law. The suspension of its decision was lifted.

2. The tribunal’s reasons, read as a whole, showed that it understood and applied the statutory sequence from special educational needs, to special educational provision, to placement. Its thematic assessment of the parties’ evidence did not show that it had decided those matters in the wrong order. An imperfect heading did not make otherwise adequate reasons inadequate.

3. A local authority’s role in an EHCP appeal is not confined to advancing its preferred outcome. Consistently with its statutory duties and rule 2 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, it must assist the tribunal with relevant information and co-operate to further the overriding objective. The authority could have advanced alternative schools, a suitable type of school, or further submissions. On the case presented, the tribunal was entitled to name School E once it found that School M could not deliver the required provision; it did not err under section 9 of the Education Act 1996.

4. The required level of specificity in section F is a balance. Excessive detail can impede teachers and specialists from adapting provision to the child’s response and development, while insufficient detail causes uncertainty. The question is whether those implementing the EHCP can understand what is required. The tribunal was entitled to regard the challenged wording as sufficiently precise and flexible.

5. The physiotherapy was properly analysed as special educational provision, rather than merely deemed educational provision. The tribunal had adequate specialist evidence and made findings capable of satisfying the approach in Westminster City Council v First-tier Tribunal (Health, Education and Social Care Chamber) and A [2023] UKUT 177 (AAC). Its conclusion was neither inadequately reasoned nor irrational.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the local authority’s appeal and lifted the suspension of the First-tier Tribunal’s decision.
• First-tier Tribunal (Health, Education and Social Care Chamber): on 7 March 2024, allowed the parents’ EHCP appeal concerning sections F and I and named School E.