[2025] UKUT 010 (AAC)

This appeal succeeds on a single ground. The First-tier Tribunal’s decision involved an error on a point of law because it did not give sufficient reasons for its decision. In the circumstances, the Tribunal was required to give some explanation for its rejection of Ms Long’s April 2022 addendum report. Despite the Tribunal having erred in law, I have decided not to set aside its decision. The Tribunal’s error related to its discretionary power to give a social care recommendation. Even if the Tribunal had not erred, and given the recommendation sought by the Appellant, the relevant local (social care) authority was not bound to accept the recommendation. By contrast, where a Tribunal orders special educational provision in Section F of an EHC Plan, the relevant local authority is required by section 42(2) of the 2007 Act to secure that the provision is made. In my judgment, this distinction is a relevant consideration for the Upper Tribunal in deciding how to dispose of an appeal after finding that the First-tier Tribunal erred in law in the exercise of its recommendation power but whose decision, insofar as it relates to special educational matters, is free of legal error. It is also probable that matters have developed in D’s life so that Ms Long’s addendum report no longer speaks to D’s current circumstances. If that is the case, how would the First-tier Tribunal be supposed to remedy the deficiency identified by the Upper Tribunal? It would be faced with an Upper Tribunal decision that finds it erred in law in its treatment of a report that is no longer relevant and, for that reason, could not properly be taken into account since the Tribunal is required to address current circumstances (see Wilkin v Goldthorpe (Chair of the SEN Tribunal) CO/1251/97 and Gloucestershire County Council v EH (2017) UKUT 85 (AAC)). I also note that, according to the Appellant, a subsequent iteration of D’s EHC Plan is under appeal to the First-tier Tribunal and would not wish to complicate those proceedings by remitting this matter to that tribunal without a good reason for doing so. For these reasons, I decide not to set aside the First-tier Tribunal’s decision.

Finally, I must address the delay in deciding this appeal. The proceedings have, in part, been prolonged by the need to deal with the Appellant’s case management applications, such as the very lengthy application for set aside of my decision granting permission to appeal insofar as it refused permission on certain grounds, and the Appellant’s failure to comply with some case management time limits. There have also been some unfortunate administrative oversights, which I have described above in these reasons and for which I apologise on behalf of the Upper Tribunal. Latterly, the delay is a result of my prolonged absence from duties, and subsequent limited duties, while recovering from serious injuries sustained in an accident. I am sorry for the frustration likely to have been experienced by the Appellant while waiting for this decision.