AM & Anor v Wokingham Borough Council

Under section 61 of the Children and Families Act 2014, the condition for arranging provision otherwise than in school is met if it would be inappropriate for any part of the necessary provision to be made there; the arrangement may be confined to that part. A tribunal may specify the location of provision in Section F of an EHC plan where that location is inherent or integral to its educational or training quality. Where section 40(2) applies, a special school cannot be specified without addressing the mainstream-school requirement in section 33(2), including its exceptions.

The appellants, S’s parents, sought education otherwise than in school for their six-year-old son, who has autism and a language delay. They sought home-based applied behavioural analysis provision in his EHC plan. The respondent local authority opposed that request. The First-tier Tribunal partly amended the plan, found that section 61 did not permit education otherwise than in school, specified home-based provision in Section F, and named a special school as the type of placement in Section I.

The parents appealed. The local authority supported the appeal and the proposed consolidation of the case with a later appeal concerning the same child. The Upper Tribunal considered whether the First-tier Tribunal had erred in its application of section 61, in specifying the location of provision, and in naming a special-school type without addressing the mainstream-school requirement.

Appeal allowed. The First-tier Tribunal’s decision involved material errors of law. It was set aside and the case remitted for reconsideration by a fresh panel.

1. Education otherwise than in school. Under section 61(2) of the Children and Families Act 2014, the condition is satisfied if it would be inappropriate for any part of the necessary provision to be made in school. If only part should be made otherwise than in school, the power under section 61(1) extends to that part. The Tribunal followed the interpretation in NN v Cheshire East Council (SEN) [2021] UKUT 220 (AAC) that this partial power is implicit in section 61 [16]–[17].
2. The First-tier Tribunal’s plan described home-based provision as a transition towards eventual school attendance. That strongly suggested that at least some provision was inappropriate in school during the transitional period, which was inconsistent with its conclusion that section 61 was not engaged [21], [23]. Its further reliance on unspecified “alternative provision” through a school was inadequately explained: it did not identify the provision, how it would be made in a school, or how it answered the evidence that S was not ready to attend [22]–[23].
3. Location in Section F. It is not an error of law to state where provision is to be made if the location is inherent or integral to the provision’s educational or training quality. Such cases are likely to be rare. As good practice, a tribunal should briefly explain why the location has that connection to the quality of provision [25]–[28].
4. Type of school. Where section 40(2) applies, section 33(2) requires mainstream education unless it is incompatible with the parents’ wishes or the provision of efficient education for others. The First-tier Tribunal erred in specifying a special school without considering that requirement or finding either incompatibility [29]–[31].

The case was remitted for reconsideration by a fresh First-tier Tribunal panel after consolidation with the later appeal. The file was directed to a salaried judge for further case-management directions [32].

1. Upper Tribunal (Administrative Appeals Chamber): In [2026] UKUT 327 (AAC) , allowed the appeal, set aside the First-tier Tribunal decision and remitted the case for reconsideration by a fresh panel, after consolidation with the later appeal EH870/25/00075.
2. First-tier Tribunal (HESC Chamber), Special Educational Needs and Disability Panel: On 19 December 2024, partly allowed the parents’ appeal concerning the child’s EHC plan, amended Sections B and F, found section 61 did not apply, and specified a special school as the type of placement in Section I. That decision was set aside by the Upper Tribunal.