Special Educational Needs (‘SEN’) law can be something of a bureaucratic labyrinth, navigated with equal frustration by parents, carers, young persons and Local Authorities.
It often gives rise to unnecessary litigation before the Special Educational Needs and Disability Tribunal (‘SENDIST’) and beyond.
The mechanics
Before a child or young person with SEN can get an Education Health and Care Plan (‘EHC Plan’ or ‘Plan’) which entitles them to a specific and agreed package of educational support, a Plan must first be requested and the Local Authority (‘LA’) then have to make an assessment of whether a Plan may be ‘necessary’.
Following a request (which can come from an educational institution, parent/s or carer/s or a young person) LAs may refuse to make an assessment.
In other cases, the LA may agree to assess but, having considered the professional evidence and advice, refuse to issue a Plan. This is usually on the ground that the resources already available to the educational institution are sufficient to meet the child or young person’s SEN.
That’s what happened in the recent important case of Hertfordshire County Council v MC and KC [2016] UKUT 0385 (AAC).
The resources available within the educational institution are called the ‘Local Offer’. In principle, this amounts to over £19,000 of funding per pupil, divided into 3 separate elements.
The SEN and disability code of practice: 0 to 25 years, January 2015 (‘COP’) gives relevant guidance on issuing EHCPs at 9.54 to 9.56. Accordingly, under the COP at section 9.55, LA decision-makers should consider whether the child’s needs can be reasonably met by the Local Offer.
MC and KC departs from this approach in favour of a much broader definition of when it may be ‘necessary’ to issue a Plan.
Case summary
J was an 8 and a half year old boy diagnosed with high functioning Autistic Spectrum Disorder (‘ASD’). He had a variety of other difficulties. His main issues were behavioural, including serious aggression and non-compliance. His level of academic attainment was reasonably good in spite of this.
J was assessed under section 36 of the Children and Families Act 2014 (‘CFA 2014’), but the LA decided not to issue a Plan under section 37(1). J’s parents appealed the decision and won at the First-tier Tribunal (SENDIST), which ordered the LA to issue an Plan. On the LA’s appeal to the Upper Tribunal (‘UT’), Hertfordshire were represented by Baker Small, a law firm that gained notoriety after the managing partner posted some ill-judged tweets mocking the parents of a child with SEN.
Baker Small, on behalf of Hertfordshire CC, argued that the Tribunal failed to deal with the issue of whether J had SEN as defined in section 20 of the CFA 2014, failed to give adequate reasons for preferring the evidence presented by J’s parents over the LA’s evidence and failed to consider the Local Offer when deciding whether a Plan was ‘necessary’.
The UT rejected all of Hertfordshire’s grounds of appeal and offered the following guidance of more general application:
1. When is a Plan ‘necessary’?
- While the term ‘necessary’ in section 37 CFA 2014 is not defined, previous cases which the Tribunal considered at §§ 26 to 32 had concluded that the word bore a spectrum of meanings and was somewhere between ‘indispensable’ and ‘useful’ (Buckinghamshire CC v HW [2013] ELR 519 at § 16); it involves making a value judgment (Manchester City Council v JW [2014] UKUT 168 at § 14); and the guidance in the COP is not exhaustive (JW at § 17).
- Section 37 of CFA 2014 is couched in similar terms to its predecessor provision in section 324 of the Education Act 1996 (‘EA 1996’). These provisions are more flexible than the COP, and the COP cannot override them (§ 34).
- Each case is fact-sensitive. “What is necessary is a matter to be deduced rather than defined.” It will vary according to the circumstances and may involve a significant amount of judgment (§ 36).
2. What does SEN mean?
- Where the existence of SEN is disputed, section 83(3) of the CFA 2014 clarifies that the question of whether a child has a disability is to be decided by reference to the provisions of the Equality Act 2010 (‘EA 2010’) at section 6(1) (§ 12).
- While the CFA 2014 draws a distinction between learning difficulties and disabilities, the EA 2010 doesn’t. However, the Guidance from the Equality and Human Rights Commission suggests that these concepts are fluid and Annex A of the Guidance lists autism as an example of a mental impairment that may amount to a disability. What matters is the statutory definition in section 6(1) EA 2010 (§§ 12 to 13).
- However, section 20(2)(b) of CFA 2014 limits ‘disabilities’ to those which prevent or hinder a child from making use of ‘facilities’. This is likely to refer to physical facilities (ie. playgrounds, lunch halls, classrooms, and so on). It is unlikely to include the manner of educational provision (§ 14).
Observations
MC and KC appears to be a substantial win for parent/s, carer/s and young persons seeking to challenge the refusal to issue a Plan. It opens up the discussion for more creative arguments as to why a Plan is necessary for any given child or young person in a particular setting. It may no longer be enough for LAs to follow the COP and refuse to issue a Plan because of the Local Offer being available.
At a stroke, the UT has reduced the significance of the statutory COP and scraped away various glosses on the statutory test left behind by some of the previous cases. The new approach is to be a broad one, calling for evaluative judgments based on the facts and not simply regimented by the COP.
Such value judgments, when made by Tribunal Judges, will be very hard to overturn on appeal. That cuts both ways.
This decision highlights the importance of marshalling high-quality evidence to assist the LA and, if necessary, SENDIST, to get the right decision the first time around and to avoid resorting to appeals to the UT that are unlikely to succeed.
MC and KC were represented by Mr Friel instructed by SEN Legal.
