LM v Birmingham City Council

When deciding which institution to name in an education, health and care plan, the statutory preference for the young person’s requested institution may be displaced where attendance would be incompatible with the efficient use of resources. The tribunal must consider the claimed benefits of the requested institution and should exercise caution if the Working Document before it omits Section A, recording views, interests and aspirations, and Section E, recording desired outcomes. Those sections may provide important context. However, any failure to have regard to them must be material. A very substantial and realistically unbridgeable difference in annual costs may mean that permission to appeal has no realistic prospect of success.

The applicant, a young person supported by her mother, challenged a First-tier Tribunal decision naming College A rather than the requested College B in Section I of her education, health and care plan. The annual cost of College A was £30,324.86, compared with £107,792.22 for College B. The First-tier Tribunal accepted that College B offered the applicant her preferred jewellery course and considered the possibility that she might not attend College A, but concluded that naming College B would be incompatible with the efficient use of resources under section 39(4) of the Children and Families Act 2014.

The application for permission to appeal raised the omission of Sections A and E from the version of the Working Document considered by the First-tier Tribunal and challenged the weight given to cost.

1. Permission to appeal refused. The First-tier Tribunal was entitled to conclude that the £77,467.36 annual difference made attendance at College B incompatible with the efficient use of resources under section 39(4)(b)(ii) of the Children and Families Act 2014. It had considered the claimed advantages of College B and the applicant’s stated reluctance to attend College A. The challenge was therefore disagreement with the specialist tribunal’s evaluation, not an arguable error of law (para. 5).
2. The omission of Sections A and E from the Working Document presents a clear risk that the tribunal may have insufficient regard to the young person’s aspirations and the outcomes considered appropriate by the young person and those supporting her. Section A records views, interests and aspirations. Section E records the outcomes sought. Their relevance is reinforced by regulation 12(1) of the Special Educational Needs and Disability Regulations 2014 and the Code’s statement that outcomes underpin and inform the detail of education, health and care plans (paras. 8–10).
3. A tribunal considering whether the requested institution is defeated by resource considerations should exercise caution where the Working Document before it contains neither Section A nor Section E. Those sections may provide valuable context for the decision. The court could not determine what weight the First-tier Tribunal had given to earlier versions containing them. Even assuming that failure to consider them amounted to an error of law, it was immaterial on these facts. The magnitude of the cost difference meant that there was no realistic prospect of overturning the decision (para. 11).
4. The rejection of a proposed amendment to Section F, seeking provision connected with pottery, glass making or jewellery making, was unchallenged and provided a further factor supporting the First-tier Tribunal’s conclusion. The Upper Tribunal also noted that the applicant had a right to renew the permission application for an oral hearing before a different judge (paras. 6 and 12).

1. Upper Tribunal (Administrative Appeals Chamber): permission to appeal from the First-tier Tribunal was refused on 17 March 2026.
2. First-tier Tribunal (HESC Chamber): on 21 July 2025, directed that College A be named in Section I of the applicant’s education, health and care plan rather than College B.