PS v London Borough of Wandsworth

On an appeal from the First-tier Tribunal, the Upper Tribunal’s task is confined to identifying an arguable material error of law in the decision as it stood at the hearing. Subsequent events cannot make the earlier decision unlawful.

Where no suitable individual school is advanced at the hearing, the Tribunal may name a type of school under the statutory scheme. Removing a school’s name from an EHC Plan does not itself authorise the local authority to remove an already-admitted pupil from the school roll, avoid consultation with parents, or arrange education otherwise than at school. The Tribunal may proceed on the expectation that the local authority will comply with its statutory duties.

The appellants sought permission to appeal against a decision of the First-tier Tribunal dated 13 March 2025 concerning their child’s EHC Plan. The child attended X School, a community special school. The appellants proposed Y School, but the First-tier Tribunal found it unsuitable and named “special school” as a type in Section I because neither party had advanced another suitable school for determination at the hearing.

After the hearing, the local authority consented to the child’s removal from X School’s roll without consulting the appellants. The appellants argued that the First-tier Tribunal had failed to protect the child from being off-rolled and that its decision enabled the removal. The central issues were whether the Tribunal had erred in law by naming a type of school and whether the subsequent removal could affect the legality of that decision.

1. Permission and suspension. Permission to appeal was refused. The application to suspend the First-tier Tribunal’s decision was also refused.
2. Scope of the appeal. Under section 11 of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal considers points of law only. Permission normally requires an arguable material error of law. An appeal is not an opportunity to reargue the merits, and a factual conclusion is erroneous in law only if it is perverse.
3. First-tier Tribunal’s jurisdiction. The First-tier Tribunal’s jurisdiction under section 51 of the Children and Families Act 2014 is confined to the statutory decisions before it. It has no power to enforce its decision or supervise the parties’ search for a school. It was entitled to decide the appeal on the evidence available at the hearing.
4. Naming a type of school. Section 39(5) of the Children and Families Act 2014 permitted the Tribunal to name a type of school after rejecting parental preference for Y School. Given that both parties were considering alternatives and neither sought X School unconditionally, naming “special school” was reasonably open to the Tribunal. It was not arguably required to adjourn or issue a provisional decision of its own motion.
5. Effect of the decision. The Tribunal’s decision removed X School’s duty to admit the child under regulation 43 of the Special Educational Needs and Disability Regulations 2014. It did not authorise exclusion or removal from the roll of a child already admitted. The local authority remained subject to duties to consult parents and consider parental preferences under sections 38 and 39 of the Children and Families Act 2014, and to consult before arranging provision otherwise than at school under section 61 of that Act and section 19 of the Education Act 1996.
6. Events after the hearing could not render the First-tier Tribunal’s decision unlawful when made. The local authority’s later conduct was not directed, caused or permitted by the Tribunal’s decision. The Tribunal was entitled to proceed on the basis that the local authority would comply with its statutory obligations.

• Upper Tribunal (Administrative Appeals Chamber): permission to appeal against the First-tier Tribunal’s decision of 13 March 2025 was refused. The application to suspend that decision was also refused.
• First-tier Tribunal (Health Education and Social Care) (Special Educational Needs and Disability): found Y School unsuitable and named “special school” as the type of placement in Section I of the child’s EHC Plan.