D & Anor v Cheshire East Council

An appellate tribunal must give reasons that allow the parties and an appellate body to understand how the principal disputed issues were resolved. It must engage with material evidence, especially where that evidence may support the conclusion reached. An error of fact is material where it affects the tribunal’s weighing of the evidence. Special educational provision in an EHCP should be sufficiently specific and normally quantified, but a tribunal may balance precision with necessary professional flexibility. A placement-specific factor such as class size is irrelevant to deciding Section F provision, although it may provide factual context where the placement is agreed. Where the First-tier Tribunal fails to determine disputed provision or gives inadequate reasons, the Upper Tribunal may set aside the decision and ordinarily remit the issues for determination by a newly constituted panel.

The appellants appealed against a decision of the First-tier Tribunal (Health, Education and Social Care Chamber) dated 2 October 2024 concerning their autistic son’s EHCP. They sought amendments to Sections B and F, including greater specification of 1:1 support and additional speech and language therapy provision. The First-tier Tribunal rejected full-time 1:1 support, substituted less specific wording, and did not explain its treatment of the disputed speech and language therapy amendments.

Permission to appeal was granted on grounds alleging inadequate reasoning, material factual error, irrationality, reliance on class size, and failure to determine the disputed therapy provision. The central questions were whether the First-tier Tribunal had adequately reasoned its decision and whether it had lawfully resolved the disputed Section F provision.

The appeal was allowed. The First-tier Tribunal’s decision was set aside for error of law under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

1. 1:1 support. The First-tier Tribunal failed to engage with a school provision map stating that G was supported by two learning support assistants throughout the day and identifying 32.5 hours of specialist support. Its conclusion that only Dr Kelly supported 32.5 hours of 1:1 support therefore involved a material error of fact. The tribunal also failed to explain how it weighed older reports against more recent evidence, or how it reconciled its conclusion with the respondent’s acceptance that G required a high level of 1:1 support.
2. Class size. Class size is irrelevant to determining Section F special educational provision. However, the references to the small class and high staff-to-pupil ratio were treated as contextual because the placement had been agreed. This part of the ground was dismissed.
3. Specificity. EHCP provision should be sufficiently specific to leave no room for doubt and should normally be quantified. The statutory guidance is not absolute, and a tribunal may balance precision with flexibility and professional judgment. In this case, however, the wording requiring merely “a level” of 1:1 support lacked the necessary specificity. A tribunal may, depending on the evidence, specify a minimum level of support, but the Upper Tribunal did not prescribe the result for the rehearing.
4. Speech and language therapy. The First-tier Tribunal failed to explain its determination of the disputed amendments. It was arguable that the amendments included special educational provision within section 21(1) of the Children and Families Act 2014, rather than relating only to assessment. The parties were entitled to address a tribunal on that issue.
5. The Upper Tribunal declined to remake the decision because the level of 1:1 support remained contested and the disputed therapy issue required reconsideration. The matter was remitted to a newly constituted First-tier Tribunal panel.

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed; the First-tier Tribunal’s decision dated 2 October 2024 was set aside for error of law and the issues were remitted to a newly constituted panel.
• First-tier Tribunal (Health, Education and Social Care Chamber): decision made on 2 October 2024 under number EH895/23/00086, rejecting the requested amendments concerning 1:1 support and failing to explain its determination of the disputed speech and language therapy provision.