Denbighshire County Council v Mr & Mrs AB

A learning difficulty or disability amounts to additional learning needs only where it calls for provision that is additional to, or different from, what is generally available for others of the same age. That assessment requires evidence about the learner and the provision generally available, including where the tribunal considers a future school placement. A specialist tribunal may use its expertise to evaluate evidence and draw inferences, but cannot use assumptions based on that expertise to fill an evidential gap without giving the parties a chance to respond. Common behaviours associated with masking do not, by themselves, establish a significantly greater difficulty in learning.

Denbighshire County Council appeals against an Education Tribunal for Wales decision that C, an 11-year-old child with diagnoses of autism spectrum disorder and attention deficit hyperactivity disorder, had additional learning needs and required an individual development plan. C’s parents had asked her school to consider her needs; the school and the Council concluded that she did not have additional learning needs. The Education Tribunal found that masking made learning significantly more difficult for C and that she would require additional provision at secondary school.

By the time of the Upper Tribunal appeal, C had moved to secondary school and an individual development plan had been prepared. The central issues were whether the Education Tribunal had correctly applied the statutory tests for additional learning needs and additional learning provision, and whether it could rely on its specialist experience to find what provision would generally be available in secondary school.

1. Appeal allowed. The Education Tribunal for Wales erred in law in finding that C had additional learning needs. The Upper Tribunal did not set aside, remake or remit its decision under section 12(2) of the Tribunals, Courts and Enforcement Act 2007.

2. The Additional Learning Needs and Education Tribunal (Wales) Act 2018 requires effect to be given to the requirement that a learning difficulty or disability must call for additional learning provision. The Code’s suggested two-question approach cannot be detached from that statutory context. Provision generally available in mainstream education is not additional learning provision; the tribunal must identify that provision and decide on evidence whether the learner requires something additional or different.

3. For the learning-difficulty limb, behaviours such as mimicking others, emotional outbursts at home and reliance on parental support do not, by themselves, show significantly greater difficulty in learning. Evidence about the particular child is required. The Education Tribunal was nevertheless entitled to find that the test was met on the evidence of C’s anxiety symptoms and the educational psychologist’s observations. Its findings under the separate disability limb were not material to the outcome. That limb requires evidence that the disability in fact prevents or hinders use of educational or training facilities.

4. A specialist tribunal may use its expertise to evaluate evidence and draw inferences, but it must base factual findings on evidence. It cannot fill an evidential gap about provision at a future school by relying on its own experience, particularly without giving the parties an opportunity to comment. A tribunal may consider future circumstances, as recognised in DWL v Milton Keynes City Council [2026] UKUT 203 (AAC) and illustrated by Wilkin v Goldthorpe [1998] ELR 345, but its decision must still have an evidential basis. The Education Tribunal had no evidence of the provision available at C’s not-yet-confirmed secondary school. Its reliance on specialist experience was impermissible and, in any event, procedurally unfair under the principle in R (on the application of L) v Waltham Forest LBC [2003] EWHC 2907 (Admin).

5. The Upper Tribunal identified errors of law without interfering with facts properly found or reweighing evidence, consistently with Henderson v Foxworth Investments Ltd [2014] UKSC 41 and Volpi v Volpi [2022] EWCA Civ 464. It left the Education Tribunal’s decision in place because an individual development plan had been prepared, C was now at secondary school, and an imminent review would consider her current circumstances. Appeal rights under section 70 of the 2018 Act would be available in respect of relevant decisions made on review.

1. Upper Tribunal (Administrative Appeals Chamber) — On appeal, the Upper Tribunal held that the Education Tribunal for Wales had erred in law. It allowed the appeal but did not set aside, remake or remit the decision: [2026] UKUT 376 (AAC) .
2. Education Tribunal for Wales — By a decision dated 16 February 2026, the tribunal found that C had additional learning needs and directed the Council to prepare an individual development plan.