AA v Bristol City Council

An appeal may succeed where a tribunal fails to explain its rejection of material evidence, particularly where that evidence addresses materially changed circumstances. Admission of evidence does not establish that it was considered. A tribunal may correct an unintelligible drafting error in an EHC Plan where its intended meaning is clear. A party is ordinarily entitled to address the issue in dispute, but need not be given a further opportunity to respond to the opposing party’s precise proposal where the issue has already been raised and argued. Despite an error concerning a social care recommendation, the Upper Tribunal may decline to set aside the decision where the recommendation is non-binding, circumstances have changed, and remittal would serve no useful purpose.

The parents appealed against the contents of their child D’s EHC Plan. Shortly before the First-tier Tribunal hearing, the agreed educational arrangements changed from schooling to education otherwise than at school, with home-based provision and community access support.

The First-tier Tribunal ordered five hours’ weekly two-to-one community support, six-weekly risk assessments and restraint training for the additional support worker. It also rejected proposed health and social care provision. The Upper Tribunal granted permission on grounds including procedural unfairness, unclear drafting, restraint-related reasoning, failure to consider an addendum social-worker report and failure to address sleep and ADHD issues. The central questions were whether the First-tier Tribunal had erred in law and, if so, what disposal was appropriate.

1. Appeal allowed on one ground. The First-tier Tribunal erred in law by failing to explain its rejection of Ms Long’s April 2022 addendum report. The report was admitted as relevant, concerned D’s changed educational circumstances and was materially different from her earlier report, which had been prepared on the assumption that D would attend school. The Tribunal’s reasons did not explain why the addendum was rejected.
2. The procedural-fairness ground was not made out. The Appellant had an opportunity to make submissions on the disputed amount of weekly two-to-one support. Fairness did not require a further adjournment to address the local authority’s precise proposal of five hours. The six-weekly risk-assessment provision and the restraint-training requirement substantially reformulated recommendations contained in the Appellant’s own evidence.
3. The reference to PEAK attending multi-agency meetings was an obvious drafting error. Since PEAK was a curriculum rather than a person, the provision made no sense. It could sensibly be read without the reference to PEAK, so the error did not obstruct implementation and was not an error of law.
4. The restraint grounds were not made out. The Appellant’s case accepted that some physical intervention might be required, provided that two people were available, and objected principally to the use of a Houdini harness. In that context, the Tribunal’s requirement for restraint training was sufficiently intelligible. More detailed specification might have been preferable, but the reasons were legally adequate.
5. On the assumption that a health or social care recommendation is a “decision” for the purposes of section 11(1) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal had jurisdiction to consider the alleged error. However, it did not set aside the First-tier Tribunal’s decision. The error concerned a discretionary, non-binding social care recommendation; relevant circumstances had also changed, and the subsequent EHC Plan was under appeal. The special educational provisions remained free from legal error.
6. Ground 6, concerning sleep and ADHD assessment, had become academic. The First-tier Tribunal’s decision therefore remained in force.

• First-tier Tribunal (Health, Education and Social Care Chamber) decided the EHC Plan appeal on 15 June 2022 and amended the decision following review on 2 September 2022.
• Upper Tribunal (Administrative Appeals Chamber) allowed the appeal on one ground, found an error of law, but declined to set aside the First-tier Tribunal’s decision.