15th January 2025
SEN CASE LAW ROUND UP – 2024
2024 saw a number of cases decided in the Upper Tier Tribunal which have helped to clarify the law in a number of areas. We have summarised the key principles arising below:
SS v Proprietor of an Independent School (Special educational needs) [2024] UKUT 29 (AAC) (31 January 2024) – of particular focus in this case was the application of s 15 Equality Act 2010 which prohibits someone with a disability being treated “unfavourably”. The Upper Tier considered that where a claim is made under this ground the following questions must be considered: (1) Whether the disabled person has been treated unfavourably; (2) The reason for the unfavourable treatment; (3) Whether that reason is something arising in consequence of the disabled person’s disability; (4) Whether the school knew, or could reasonably have been expected to know, that the person had the disability relied on; and (5) If so, whether the school has shown that the treatment is a proportionate means of achieving a legitimate aim.
AB v East Sussex County Council (Disability discrimination in schools) [2024] UKUT 87 (AAC) (15 February 2024) – The Upper Tier considered the circumstances where an EHC Plan should be ceased. The Upper Tier held that a local authority/Tribunal should ask itself whether a young person would meet the test for preparing and maintaining an EHC plan in the first instance. If the answer is ‘yes’, it is difficult to reach a conclusion that it is no longer necessary for an EHC plan to be maintained. This required the Tribunal to identify whether the young person concerned continued to require Special Educational Needs provision.
KM & DM v Cheshire West and Chester Council [2024] UKUT 89 (AAC) (20 March 2024) – The Upper Tier considered the rules for awarding costs and the deadline which these must be submitted by when a decision is made by the First Tier Tribunal.
Hampshire CC v (1) GC (2) GC (SEND) (Special educational needs – ceasing to maintain EHC plan) [2024] UKUT 128 (AAC) (24 April 2024) – this is an important case concerning “ordinary residence” and the process to be followed when ceasing an Education, Health and Care Plan under s 45 Children and Families Act 2014. The Upper Tier found that if a local authority does follow the correct procedure as laid down in the SEND regulations when ceasing an EHC Plan, the cessation decision will not be allowed to stand.
EM v Royal Borough of Windsor and Maidenhead [2024] UKUT 317 (AAC) (28 May 2024) – this is an important case which concerned the decision of a local authority to cease an EHC Plan on the basis that further education was not necessary and that the young person’s needs could be met by a combined health and social care package. The Upper Tier made the following important comments (1) Although the potential for learning may be a relevant factor as to the question of whether an EHC Plan is still necessary, a particular level of learning potential is not an essential prerequisite for an EHC Plan; (2) The conclusion by the First Tier Tribunal that the amount of learning must reach a certain degree in proportion to the amount of provision made for a EHC Plan to be necessary is not supported by the wording of section 45; (3) The FTT should have assessed whether the necessary future provision (provided by health and social care) was special educational provision and if it could be provided without a EHC Plan.
AG v Brent Council [2024] UKUT 166 (AAC) (06 June 2024) – the Upper Tier found that the First Tier Tribunal had given inadequate reasons for excluding a father from accessing/participating in his child’s social care provision and in the absence of reasons had erred in giving sole responsibility for social care to his ex-partner.
TM and SM v Liverpool City Council (Special educational needs – special educational provision – naming school) [2024] UKUT 201 (AAC) (11 July 2024) – The First-tier Tribunal (FTT) decided that parents’ preferred school, and local authority’s preferred school, both suitable – but parents’ preference not to be followed due to s39(4)(b)(ii) applying – post-hearing evidence that child had very strong feelings against attending school preferred by local authority – parents appealed on basis that “views, wishes and feelings” of child not taken into account, as required by section 19 . The Upper Tier held: “new” evidence was admissible under Ladd v Marshall principles – The FTT decision was silent on whether s19 had been considered – in particular circumstances of this case, it could not be inferred that FTT had considered child’s views about appropriateness of local authority preferred school for him – this was material error of law – decision on school named in Section I set aside and remitted to FTT for fresh hearing.
London Borough of Islington v A Parent (Special Educational Needs) (Rev1) [2024] UKUT 252 (AAC) (20 August 2024) – This is a very important case which concerns decisions around the admission of children into oversubscribed special schools. The Upper Tier made two important findings: (1) The FTT erred in directing itself that the burden of proof was on the local authority to demonstrate that naming the parent’s preferred school would be incompatible with the efficient use of resources, rather than recognising that it was its responsibility as Tribunal to stand in the shoes of the local authority in applying section 39(4); and (2) The FTT failed to exercise (or at least to consider exercising) its case management powers to obtain the necessary evidence on costs of both placements at the point that it decided that the evidence it had been supplied with was “unreliable”.
London Borough of Hillingdon v AP & Anor [2024] UKUT 388 (AAC) (29 November 2024) – The case considers a number of points following the First Tier Tribunal’s decision to name a residential placement for a child. The Local Authority argued that the FTT should have adjourned to consider alternative placements because of the expenditure involved in naming the parents’ proposed school. The Upper Tier dismissed that argument stating, “The local authority was under duties to help the tribunal to further the overriding objective, which includes avoiding delay, and to co-operate with the tribunal generally. All local authorities have specialist staff in their education Departments. They have solicitors either inhouse or under contract. And, as in this case, they can afford to, and do, instruct counsel. That combination of expertise should allow them to anticipate what may not go their way in the tribunal and to prepare accordingly. That may involve, for example: offering other possible schools to the tribunal, suggesting a description of a type of school for the tribunal to accept or adapt, or asking to make further submissions in the light of the tribunal’s findings on special educational needs or provision”.