BZP & Anor v Warwickshire County Council

In special educational needs appeals, an education, health and care plan must be based on evidence. A tribunal cannot make more specific findings than the evidence permits, and need not impose arbitrary numerical precision where the child’s needs depend on changing circumstances. In context, a requirement for a small class may be sufficiently precise if the evidence links class size to the required environment. Proposed therapeutic provision should not be included without appropriate professional evidence establishing what treatment is required and its extent. The Upper Tribunal cannot receive fresh evidence as if it were deciding the case at first instance; its jurisdiction is confined to correcting errors of law.

The appellants challenged parts of the First-tier Tribunal’s decision concerning their daughter’s education, health and care plan. Following an application for permission to appeal, the First-tier Tribunal reviewed part of its decision under rules 47 and 49 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, but left the relevant issues subject to appeal.

The Upper Tribunal granted permission on two grounds: whether the specified adult-to-pupil ratio was irrational, and whether the refusal to include psychotherapy was irrational or inadequately reasoned. The central questions were whether the plan required a precise ratio and whether the evidence justified therapeutic provision.

1. Appeal dismissed. The First-tier Tribunal had not erred in law on either issue. The decision remained in force under section 12 of the Tribunals, Courts and Enforcement Act 2007.
2. Under rule 47(2) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008, the First-tier Tribunal may review part of a decision. A statement that permission to appeal is not granted may, in context, amount to a refusal of permission. The remaining part of the decision was therefore capable of being appealed to the Upper Tribunal under section 11 of the Tribunals, Courts and Enforcement Act 2007.
3. On precision, the tribunal could omit a proposed adult-to-pupil ratio of 1:5. The evidence did not establish that the ratio was essential, rather than reasonable. A tribunal cannot make more specific findings than the evidence supports. It must also have a reasoned basis for changing a plan, while recognising that some matters cannot sensibly be reduced to an arbitrary figure.
4. The requirement that the child be educated in a small class was sufficiently specific in context. The evidence linked class size to a low-arousal environment, which also depended on activities, the behaviour of other pupils and noise levels. A numerical class-size limit would therefore have lacked an evidential basis.
5. The refusal to include weekly psychotherapy was rational. The evidence did not contain an appropriate report from a qualified psychotherapist assessing the child and establishing what therapy, if any, was required or how many sessions were needed. The Upper Tribunal could not take account of evidence produced for the appeal which had not been before the First-tier Tribunal, because its jurisdiction was limited to errors of law.

• Upper Tribunal (Administrative Appeals Chamber): dismissed the appeal and held that the First-tier Tribunal’s decision did not involve an error of law.
• First-tier Tribunal (Health, Education and Social Care Chamber): decision dated 6 January 2025, later reviewed in part; the relevant findings on the adult-to-pupil ratio and psychotherapy remained subject to appeal.