OO and BO v London Borough Bexley:  UKUT 223 (AAC)
EHCP Parents choice of school place appeal
Table of Contents
EHCP appeal about parents choice of school place?
This case was a content appeal and also concerned an EHCP parents choice of school place appeal.
When can a local authority refuse to name the parents choice of school place?
The parents were seeking the naming of a particular school. The local authority was required to name the school unless certain exceptions applied. Those exceptions are:
a) where school placement was unsuitable for the age, ability, aptitude or special educational needs of the child; or
b) where the child’s attendance at the school placement requested would be incompatible with
i. the provision of efficient education for others; or
ii. the efficient use of resources.
What did the First-tier Tribunal decide?
The First-tier Tribunal had amended Sections B and F of Q’s EHC plan but dismissed the appeal regarding the named school (Section I). Q’s parents were seeking for Woodside Academy to be named as the school, while the local authority named Shenstone School.
What did the Upper Tribunal decide?
The decision of the Upper Tribunal is to allow the appeal regarding Q’s Education, Health and Care (EHC) plan. Q is a 5-year-old boy diagnosed with autism spectrum disorder, global developmental delay, and sensory processing difficulties. His parents appealed aspects of his EHC plan to the First-Tier Tribunal.
The Upper Tribunal granted permission to appeal on matters regarding whether Q’s attendance at Woodside Academy would be incompatible with providing efficient education to other pupils there. The headteacher of Woodside Academy, provided evidence that the school had limited space and resources to support Q’s needs. However, the First-tier Tribunal decision did not adequately explain why Q’s attendance would unavoidably reduce education for other pupils below the standard of efficient education.
Why did the Upper Tribunal overturn the First-tier Tribunal’s decision?
The Upper Tribunal found that the First-tier Tribunal erred in law by not applying the statutory test from section 39 precisely or providing sufficient reasons and findings of fact. Therefore, the Upper Tribunal set aside the First-tier Tribunal’s decision and remanded the case to be reheard by a fresh tribunal panel.
In particular, the First-tier Tribunal held that “the test in s39(4)(b)(i) is a sophisticated one, requiring a degree of precision and/or detail as to which children would be affected?, was the standard of their education currently at, or above, the “efficient education” standard?, what effect the child’s attendance would have on the standard of those other children’s education, and, if the effect was to reduce it below the “efficient education” standard, was that inevitable?”
The Upper Tribunal specifically held that “a broad-brush approach is inadequate for the “sophisticated” test of s39(4)(b)(i) i.e. the test must be approached with the precise special educational provision required by the newly-attending child in mind.”
Upper Tribunal Judge Zachary Citron stated: ” I conclude that the ground of appeal, to the effect that there were insufficient findings of fact and/or reasons given to explain the basis on which the test in s39(4)(b)(i) was satisfied, has been made out.”
Why did the Upper Tribunal Judge remit the matter to the First-tier Tribunal instead of making a decision on school placement?
The passage of around a year meant that the judge considered it should go back to the First-tier Tribunal where a different panel (i.e. different set of judges) of the First-tier Tribunal would consider the appeal afresh in relation to needs, provision and school placement.
The judge stated: “The error of law identified is clearly material and so it is right that I set the decision aside. It is also right that I remit the case to a fresh tribunal, rather than re-make the decision, as detailed findings of fact must be made in order to apply the statutory test correctly, and the fact-finding tribunal is best placed to do that. Mr Wilding submitted that, if I were to take this course, I direct that the tribunal only consider the appeal against the school named in Q’s EHC plan (i.e. preserve the (set-aside) decision so far as Sections B and F of that plan are concerned). I have not thought right it to do that largely because about a year will have passed (since the hearing of the tribunal whose decision I have set aside) by the time the remitted case is heard: this is a significant period, particularly in the life of a young child, and there may well be changes that should be reflected in those sections of Q’s EHC plan (which may in turn impact on the tribunal’s consideration of Section I (the named school))”
How can EHCP lawyers help secure EHCP parents choice of school place?
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