Upper Tribunal criticises way ‘Working Document’ was presented to tribunal

In his judgment, Upper Tribunal Judge Ward said: “In the present case, version 13 of the Working Document, on which the FtT had to reach its decision, contained neither Section A [the views, interests and aspirations of the child and his parents or the young person] or Section E [the outcomes sought for him or her]. No doubt that was because the FtT has no jurisdiction over Section A and only the ability to make consequential amendments to Section E.

“It seems to me that there are clear risks of a tribunal having insufficient regard to a young person's aspirations and the outcomes which they and those supporting them consider appropriate if it does not have Sections A and E before it to provide context for what it has to decide.”

The Applicant, a young person, supported by her mother, sought to challenge a decision of the First-tier Tribunal (FtT) that College A be named in Section I of her EHC Plan and not College B, which the Applicant and her mother, had specified. 

The Upper Tribunal Judge said there was undisputed evidence that the cost of the Applicant attending College A would be just over £30,000 per annum, while for College B, the cost would be more than £107,000 per annum.

The FtT directed itself by reference to s.39(4) of the Children and Families Act 2014 which provides that the institution specified by the young person must be named unless

"(b)  the attendance of the ... young person at the requested ... institution would be incompatible with—

...

(ii)  the efficient use of resources."

In naming College A, the FtT concluded that the difference of more than £77,000 would be an inefficient use of resources.

It went on to consider any extra benefit it was claimed attending College B would bring for the Applicant.

It accepted that a placement at College B would result in the Applicant being able to undertake a jewellery course, which was her preference.

The ground of appeal, expressed by the Applicant's mother, was that: "I do not agree with the Tribunal naming [College A] just because the costs are lower. I would have to force my child to do something she is not interested in which no parent wants to do. The costs should not be the only factor that plays into the decision of where my child attends college."

Considering the appeal, Upper Tribunal Judge Ward said: “I do not accept that the FtT named College A 'just because' the costs are lower, nor were the costs 'the only factor'.

“As set out above, it also considered the claimed advantages of College B but concluded that an incompatibility with the efficient use of resources nonetheless existed. That was a matter for the specialist tribunal to decide and disagreement with it, while one may appreciate a parent's perspective, does not give rise to an arguable error of law. The legislation does make incompatibility with the efficient use of resources a ground for not naming a school or institution of choice and the grounds in places come close to a challenge to s.39(4) itself.”

He continued: “I would add that the Applicant and her mother had sought an amendment to Section F to include a wish to participate in lessons for "e.g. pottery, glass making, jewellery making".  This was rejected by the FtT, agreeing with the Respondent that it did not constitute special educational provision. No challenge is made to that conclusion, which was again one for the specialist tribunal. Its absence from Section F is a further factor supporting the FtT's conclusion.”

The Upper Tribunal Judge then turned to the way in which the Working Document was presented to the FtT.

He said: “Section A of the Working Document is required to set out "the views, interests and aspirations of the child and his parents or the young person." Section E has to set out "the outcomes sought for him or her": see The Special Educational Needs and Disability Regulations 2014, reg.12(1).

“Those are ideal spots to capture what might motivate a young person and potential outcomes in terms of skills and employment.”

He added: “In the present case, version 13 of the Working Document, on which the FtT had to reach its decision, contained neither Section A or Section E.  No doubt that was because the FtT has no jurisdiction over Section A and only the ability to make consequential amendments to Section E.

“[…] It seems to me that there are clear risks of a tribunal having insufficient regard to a young person's aspirations and the outcomes which they and those supporting them consider appropriate if it does not have Sections A and E before it to provide context for what it has to decide. Their importance can be seen from the requirements of reg 12 of the 2014 Regulations, including that each section must be separately identified, while, as para 9.68 of the Code puts it, ‘Outcomes underpin and inform the detail of EHC plans.’”

The Upper Tribunal Judge continued: “I cannot know from its Decision what weight, if any, those Sections of the version of the Plan dated 7 May 2024 played in the Decision before me when the version under active consideration did not contain the Sections at all. Even if it were the case that the Decision was reached without regard to them, having regard to their content and to the magnitude of the difference in costs in this case, I do not consider that, if that would otherwise be an error of law, it would be a material one.

“Permission to appeal is given where an error of law is arguable with a realistic prospect of success: in my view there is no realistic prospect of overturning the FtT's decision notwithstanding the point I have made in paras 7 to 11 [covering the Working Document], nor of doing so on any other ground.”

Permission to appeal was refused.

Lottie Winson