CHAPTER ONE – OVERVIEW
Introduction
Parents and young people have a right to appeal to the First-tier Tribunal (Special Educational Needs and Disability) against certain decisions made by local authorities in England relating to children’s and young persons’ EHC needs assessments and EHC plans (a ‘young person’ in this context is a person over compulsory school age and under 25). This right to appeal is afforded by section 51 of the Children and Families Act 2014, Part 3. The First-tier Tribunal (SEND) forms part of the First-tier Tribunal (Health, Educational and Social Care Chamber) overseen by His Majesty’s Courts and Tribunals service. The key legislation which governs this type of appeal is to be found in Part 3 of the 2014 Act, in various provisions of the Education Act 1996, in the Special Educational Needs and Disability Regulations 2014, made under the 2014 Act, as well as in the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017, relating to ‘extended appeals’. Statutory guidance issued by the Department for Education and Department of Health under section 77 of the 2014 Act – the Special Educational Needs and Disability Code of Practice: 0 to 25 years (“the SEND Code of Practice”) – is also key.
An “EHC needs assessment” is an assessment of the educational, health care and social care needs of a child or young person, defined under section 36 of the 2014 Act. EHC needs assessments are explained further in Chapter 2 of this book. An “EHC plan” is a plan defined under section 37. It specifies the child’s or young person’s special educational needs (‘SEN’) and the special educational provision required by him or her, as well as, inter alia, any health care provision and social care provision reasonably required by the learning difficulties and disabilities which result in the child or young person having SEN and, in the case of a child or a young person aged under 18, any social care provision which must be made for him or her by the relevant local authority as a result of section 2 of the Chronically Sick and Disabled Persons Act 1970. It will also, usually, name the school, maintained nursery school, post-16 institution or other institution to be attended by the child or young person and/or the type of school or institution. The form of an EHC plan is prescribed by regulation 12 of the 2014 Regulations. There must be eleven sections, labelled A-K. For example, section B sets out the child or young person’s SEN, while section F sets out the special educational provision which the child or young person requires. EHC plans are explained further in Chapter 3 of this book.
“Special educational needs” is defined under section 20 of the 2014 Act. Special educational provision” is defined under section 21 of that Act. These definitions are explained further in Chapters 4 and 5.
Under the scheme provided for by the 2014 Act, most children and young people with special educational needs should have their needs met within local mainstream early years settings, schools or colleges, without an EHC plan. However, if an EHC plan is made, the child or young person enters a world of specific educational entitlements that are not enjoyed by other children or young people. An EHC plan provides a significant degree of certainty and stability in educational provision.
There are six types of appeal that a child’s parent or a young person may bring to the First-tier Tribunal under section 51 of the 2014 Act. The first type of appeal is against the decision of a local authority not to secure an EHC needs assessment for the child or young person: this may be referred to as a ‘refusal to assess’ appeal. This type of appeal is explained in Chapter 2 of this book. The second type of appeal is against a decision of a local authority, following an EHC needs assessment, that it is not necessary for special educational provision to be made for the child or young person in accordance with an EHC plan: a ‘refusal to issue’ appeal. This type of appeal is explained in Chapter 3. Where an EHC plan is maintained for the child or young person, the child’s parent or a young person can appeal the child’s or young person’s SEN as specified in the plan and/or the special educational provision specified in the plan and/or the school or other institution named in the plan or the type of school or other institution specified in the plan, or, if no school or other institution is named in the plan, that fact. As these are the matters which are set out in sections B, F and I of the EHC plan, they may be referred to as ‘Section B’ and ‘F’ and ‘I’ appeals. These types of appeals are explained in Chapters 4 to 6. Chapter 5, on ‘Section F’ appeals, includes an explanation of the law relating to educational provision outside of the normal school day, sometimes referred to as a ‘waking day curriculum’. Chapter 7 addresses the special situation provided for by section 61 of the 2014 Act, whereby special educational provision may be made otherwise than in a school or post-16 institution or a place at which relevant early years education is provided. This is type of provision is sometimes referred to by the shorthand ‘EOTAS’.
The fourth type of appeal is against a decision of a local authority not to secure a re-assessment of the needs of the child or young person under section 44 of the 2014 Act, following a request to do so; this type of appeal, a ‘refusal to re-assess’ appeal, is explained in Chapter 2. The fifth type of appeal is against a decision of a LA not to secure the amendment or replacement of an EHC plan it maintains for the child or young person following a review or re-assessment under section 44 of the 2014 Act; this is a type of ‘Section B’, ‘F’ or “I’ appeal and is explained in Chapters 4 to 6. The sixth type of appeal is against a decision of a LA under section 45 of the 2014 Act, to cease to maintain an EHC plan for the child or young person: a ‘ceasing to maintain’ appeal. This type of appeal is explained in Chapter 8.
Chapter 9 of this book explains the legal framework whereby local authorities and health care bodies are required to make joint commissioning arrangements for education, health and care provision for children and young people with SEN or disabilities. It further explains the involvement of local authority children’s and adults’ social care services and health care bodies in EHC needs and assessments, and the powers conferred on the First-Tier Tribunal by the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017. Under these regulations parents and young people can request, and the Tribunal can make, non-binding recommendations about health and social care needs or provision as part of any of the six types of appeal referred to above, except for the first type (‘refusal to assess’ appeals). Since 1 September 2021 appeals which include health or social care aspects have been known as ‘extended appeals’.
Chapters 2 to 9 of this book also address the powers of the First-tier Tribunal before determining and when determining these types of appeal, as well as compliance with the Tribunal’s orders.
There is no right of appeal to the First-tier Tribunal in relation the other sections of an EHC plan. However, the Tribunal has a power to make “any other consequential amendments as [it] thinks fit” to the EHC plan, by virtue of regulation 42(2)(f) of the 2014 regulations. In S v Worcestershire CC (SEN) [2017] UKUT 0092 (AAC) at [84-85], in the context of a ‘Section F’ appeal, the Upper Tribunal held that this meant the Tribunal could make consequential amendments to the outcomes stated in Section E.
Practice and procedure in the First-tier Tribunal, in relation to these types of appeals, is explained in Chapter 10 of this book. This Chapter briefly explains the ‘mediation’ requirement. It also addresses the situation where one parent of a child brings an appeal without the other, and the situation where a young person lacks capacity to bring an appeal.
Correcting, setting aside, reviewing and appealing First-tier Tribunal decisions is looked at in Chapter 11.
Part 3 of the Children and Families Act 2014 and the Education Act 1996 – overview
Part 3 of the 2014 Act makes provision for children and young people in England with SEN or disabilities. Part 3 of the 2014 Act made various changes to the previous statutory regime. Of these changes, arguably the most significant was the introduction of EHC plans which can be maintained for children and young people of any age from 0-25 years, to replace statements of special educational needs. In addition, section 81 of the 2014 Act caused the provisions of Chapter 1 of Part 4 of the Education Act 1996 to cease to apply in relation to children in the area of a local authority in England. The effect was to create a new statutory regime for England and a separate statutory scheme for Wales. Some of the case law decided in relation to the sections of the Education Act 1996 which no longer apply to England continues to be relevant. In Devon County Council v OH [2016] UKUT 292 (AAC) at [30-32] the Upper Tribunal noted “substantially common features around the very building blocks of the special educational needs regime” and, at [33], decided to “proceed on the basis that the legislative intention was in general terms for a continuity of approach, except where the 2014 Act provides a specific reason to conclude otherwise. Subject to that note of caution, authorities on concepts common to both regimes will continue to be relevant.”
Section 83 of the 2014 Act deals with interpretation of Part 3. By section 83(7), the Education Act 1996 and the other provisions of Part 3 of the 2014 (except so far as they amend other Acts) are to be read as if those provisions were contained in the 1996 Act.
The 1996 Act remains a key piece of legislation for England in the context of appeals to the First-tier Tribunal under section 51 of the 2014 Act. In particular:
-
Section 2 defines primary, secondary and further education.
-
Section 3 defines “pupil”.
-
Section 4 defines schools and section 5 defines primary schools, secondary schools and middle schools. Section 6 defines nursery schools.
-
Section 7 imposes a fundamental duty on the parent of every child of compulsory school age to cause their child to receive efficient full-time education suitable to his age, ability and aptitude and to any special educational needs he may have.
-
Section 8 defines compulsory school age.
-
Section 9 imposes a duty on the secretary of state and local authorities, when exercising or performing all their respective powers and functions under the Education Acts, to have regard to the general principle “that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure”. This duty is particularly relevant in the context of Section I’ appeals but it can also be relevant in ‘Section F’ appeals. It is considered in detail in Chapter 6 of this book.
-
Section 19 imposes a duty on a local authority in England to make arrangements for the provision of suitable education at school “or otherwise than at school” for those children of compulsory school age “who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them” and provides a power in relation to young people.
Section 19 of the 2014 Act imposes a general duty on a local authority in England, when exercising a function under Part 3 in the case of a child or young person, to have regard to certain matters in particular. These are: the views, wishes and feelings of the child and his or her parent, or the young person; the importance of the child and his or her parent, or the young person, participating as fully as possible in decisions relating to the exercise of the function concerned and being provided with the information and support necessary to enable participation in those decisions; the need to support the child and his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes. Sections 22 and 23 of the 2014 Act are concerned with identifying children and young people with special educational needs and disabilities.
Chapter 1 of the SEND Code of Practice, entitled ‘Principles’, addresses sections 19, 22 and 23 of the 2014 Act.
Sections 20 and 21 of the 2014 Act provide the definitions of “special educational needs”, “special educational provision”, “health care provision” and “social care provision”, and are considered further in Chapters 4, 5 and 9 of this book.
Section 24 of the 2014 Act sets out the circumstances in which a local authority is “responsible” for a child or young person for the purposes of Part 3. This issue is considered further in this Chapter, below.
Sections 25, 26 and 28 of the 2014 Act, broadly speaking, are intended to improve the way that services work together to provide support children and young people with educational, health and social care needs. Where these relate to health and social care, they are considered further in Chapter 9 of this book.
Chapter 2 of the Code focuses on the information, advice and support which local authorities must provide for children, young people and parents, in relation to special educational needs, disability, health and social care.
Chapter 3 of the Code explains the duties which local authorities and their partner commissioning bodies have for developing joint arrangements for commissioning services to improve outcomes for children and young people aged 0 to 25 years who have SEN or disabilities.
Chapter 4 of the Code explains the statutory duties on local authorities to develop and publish a ‘local offer’ setting out the support they expect to be available for local children and young people with SEN or disabilities. These chapters relate to sections 25 to 35 of the 2014 Act. Published information from the ‘local offer’ may often be relevant evidence in an appeal before the First-tier Tribunal under section 51.
Sections 33 to 35 of the 2014 Act relate to ‘mainstream’ education. Section 33 is an important provision in the context of section I appeals, by which a child or young person with an EHC plan will be educated in a maintained nursery school, mainstream school or mainstream post-16 institution, unless certain conditions apply. This provision is considered further in Chapter 6, which looks at ‘Section I’ appeals.
Sections 36-50 of the 2014 Act, regulations 3-31 of the 2014 Regulations and Chapter 9 of the SEND Code of Practice relate to EHC needs assessments and plans including reviews and re-assessments of EHC plans and ceasing to maintain EHC plans. Regulations 17 and 47 contain provisions setting out the circumstances in which an EHC plan or any representations, evidence, advice or information obtained in relation to an EHC plan may be disclosed, the circumstances in which the child or young person’s consent to disclosure may be given, and regulation 17(4) provides that the arrangements for keeping a child or young person’s EHC plan must be such that they ensure, so far as is reasonably practicable, that unauthorised persons do not have access to it.
Sections 51-60 of the 2014 Act and regulations 32-45 of the 2014 Regulations deal with appeals, mediation and dispute resolution and are supported by Chapter 11 of the Code, entitled ‘Resolving Disagreements’. Section 60, however, which relates to claims under the Equality Act 2010, is outside the scope of this book.
Sections 61-65 of the 2014 Act relate to functions of local authorities and sections 66-69 relate to functions of governing bodies and other bodies responsible for the governance of educational institutions such as schools and academies and institutions in the further education sector. Section 61 is an important provision which sets out the circumstances in which a local authority in England may arrange for the special educational provision of a child or young person to be made otherwise than in a school or post-16 institution, by way of home education, for example. Chapter 10 of the SEND Code of Practice, entitled ‘Children and young people in specific circumstances’ provides statutory guidance in relation children and young people with SEN who are educated at home, in alternative provision, or are in hospital. This is considered in Chapter 7 of this book on appeals for ‘EOTAS’.
Section 62 of the 2014 Act enables a local authority in England to make arrangements for a child or young person for whom it maintains an EHC plan to attend an institution outside England and Wales which specialises in providing for children or young people with SEN.
Section 63 of the 2014 Act is an important provision in the context of ‘Section I’ appeals, whereby a local authority must pay any fees payable in respect of education and training provided by a child or young person at the school, post-16 institution or place at which relevant early years education is provided which is named in the EHC plan of the child or young person which the LA maintains.
Section 66 of the 2014 Act applies in relation to schools and institutions specified in section 66(1), and where a registered pupil or student at such a school or other institution in England has SEN. It imposes a duty on the ‘appropriate authorities’ of such schools and institutions (e.g. the governing body, in the case of a maintained school) to use their “best endeavours” to secure that the special educational provision called for by the pupil’s or student’s SEN is made.
Section 69 of the 2014 Act imposes a duty on maintained schools in England and academies to prepare a report containing “SEN information” about the implementation of the governing body’s policy for pupils at the school with SEN (and in relation to its duties under the Equality Act 2010 towards pupils and prospective pupils who have disabilities). The “SEN information” report will almost always form a part of the evidence before the First-tier Tribunal in ‘Section I’ appeals where a maintained school or academy is concerned. Regulations 51, 52 and Schedule 1 of the 2014 Regulations make further provision in relation to “SEN information” reports.
Section 65 of the 2014 Act makes provision for a local authority in England which maintains an EHC plan for a child or young person to access the premises of schools, post-16 institutions and other institutions where education or training is provided in pursuance of the plan, for monitoring purposes.
Sections 70-75 of the 2014 Act relate to detained persons.
Section 76 of the 2014 Act places a duty on the Secretary of State to exercise his or her information-gathering powers to secure SEN information about children and young people under 19 from schools and local authorities and the provision made for them which he thinks would be likely to help in improving the well-being of those children and young people. Section 79 made provision for the Secretary of State and the Lord Chancellor to review and report on how effectively disagreements about the exercise of functions under Part 3 were being resolved; the report was published in 2017.
Sections 77 and 78 of the 2014 Act relate to the SEND Code of Practice. Section 77 specifies the bodies which must have regard to the SEND Code of Practice in the exercise of their functions, and which functions. In ‘having regard’ to the Code the relevant body must understand it, and, if they decide to depart from it, must explain why, to enable those affected to understand the decision and if necessary, to challenge it: W v Blaenau Gwent [2003] EWHC 2880 at [17-18]. If a Tribunal finds guidance in the Code which ‘flies in the face’ of legislative provisions, it must apply the law as laid down by Parliament – the Code cannot override the statute nor any relevant statutory instrument: Devon County Council v OH (SEN) [2016] UKUT 0292 (AAC) at [45]; Staffordshire County Council v JM [2016] UKUT 0246 (AAC) at [40].
Section 80 of the 2014 Act is an important provision addressing the situation where parents and young people lack capacity, together with regulations 63-65 and Schedule 3 of the 2014 Regulations and Annex 1 of the SEND Code of Practice. This area is considered in detail in Chapter 10 of this book.
Sitting outside Part 3 but within the ‘Education Acts’ as listed in section 578(1) of the 1996 Act is section 100 of the 2014 Act (‘Duty to support pupils with medical conditions’), which places a duty on the governing body of a maintained school or a pupil referral unit or the proprietor of an Academy school or alternative provision Academy to make arrangements for supporting pupils at the school with medical conditions.
Chapters 5, 6 and 7 of the SEND Code of Practice provide statutory guidance relating to early years providers, schools and further education respectively. Chapter 8, entitled ‘Preparing for adulthood from the earliest years’ sets out how professionals across education, health and social care should support children and young people with SEN or disabilities to prepare for adult life.
Chapter 10 of the SEND Code of Practice, entitled ‘Children and young people in specific circumstances’, provides statutory guidance in relation to particular groups of children and young people whose specific circumstances require additional consideration by those who work with them and support their SEN. These groups include looked after children, care leavers, children and young people with SEN and social care needs, including children in need, children and young people who are educated out of area, children and young people with SEN who are educated at home, in alternative provision, or are in hospital, children of service personnel, and children and young people in youth custody.
When is a local authority “responsible” for a child or young person?
By subsection 24(1) of the 2014 Act, a local authority in England is responsible for a child or young person if he or she “is in the authority’s area” and has been (a) “identified by the authority as someone who has or may have special educational needs”, or (b) “brought to the authority’s attention by any person as someone who has or may have special educational needs.”
Neither the 2014 Act nor the 2014 Regulations define what is meant by being “in” a local authority’s area; nor do they define what it means for a child or young person to “move” from the area of one LA “into the area” of another for the purposes of regulation 13 of the 2014 Regulations, which deals with the transfer of EHC plans from one LA to another.
Similar words were used in section 321(1) of the Education Act 1996 and the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 SI 2001 No. 3455, regulation 23.
Section 83(6) of the 2014 Act states that a reference in Part 3 to a child or young person who is “in the area” of a local authority in England does not include a child or young person who is wholly or mainly resident in the area of a local authority in Wales or who would be wholly or mainly resident in the area of a local authority in Wales were it not for provision secured for the child or young person under Part 2 of the Additional Learning Needs and Education Tribunal (Wales) Act 2018.
R (JG) v Kent County Council [2016] EWHC 1102 (Admin) was a case under the 1996 Act concerning a family in Kent with a very troubled son who had a statement of special educational needs. The father moved with the son to Sunderland, leaving his wife and their other children in Kent; the family intended that move to be temporary until Kent County Council either arranged for a residential school placement for the child or provided some alternative accommodation in Kent for the father and son. However, Kent County Council decided that the child had “moved” to Sunderland for the purposes of their duties regarding the child. The High Court at [132-134] held that it is necessary to distinguish a situation where there has been a permanent move from one which is temporary or transitory, and it is of assistance to see whether there has been an alteration of a child’s ordinary residence to reach a decision as to whether the child has ‘moved’ for the relevant purpose. Features which have been identified in other contexts for deciding a person’s (and especially a child’s) ordinary residence may be helpful. However, there are limits on the usefulness of this methodology. The term ‘ordinary residence’ (or ‘habitual residence’) was not used in the regulation or the enabling statute, which distinguished the situation in this case from the other authorities cited (for example R (on the application of Cornwall Council) v Secretary of State for Health [2015] UKSC 46). A person may have an ordinary residence in more than one place but there can only be one local authority which is responsible for a child’s special educational needs. The features identified in the ordinary residence cases are therefore no more than indirect pointers in deciding whether a child “is in the area” of a local authority or has “moved” to the area of another.
Chapter 10 of the 2015 SEND Code of Practice, paragraph 10.8, notes that a significant proportion of looked after children live with foster carers or in a children’s home and attend schools in a different local authority area to the local authority that looks after them. Paragraphs 10.8, 10.26 and 10.27 of the Code clearly state that it is the “home” local authority (“where the child normally lives… i.e. ordinarily resident”) that is responsible for the child for the purposes of Part 3 of the 2014 Act.