[2025] UKUT 010 (AAC)

Section 11(1) of the Tribunals, Courts and Enforcement Act 2007 provides that “the reference to a right of appeal is to a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal”. The local authority argue that the Upper Tribunal has no jurisdiction in relation to the First-tier Tribunal’s exercise of its power to make health or social care recommendations but do not support that argument with any reasoning, and the Upper Tribunal has previously considered appeals against the Tribunal’s exercise of its recommendation power (see, for example, VS & RS v Hampshire County Council and National Autistic Society [2021] UKUT 187 (AAC)). On the assumption that a recommendation given by the First-tier Tribunal in the exercise of its powers under the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017 is a “decision” within section 11(1) of the 2007 Act, in my judgment the Tribunal erred in law in its treatment of Ms Long’s evidence.

The Appellants’ final closing written submissions to the First-tier Tribunal relied on Ms Long’s addendum report of 22 April 2022 to argue, amongst other things, that the Tribunal should recommend flexible respite provision for 80 hours annually. The Tribunal refused to give that recommendation.

I am satisfied that the First-tier Tribunal erred in law by failing to consider Ms Long’s addendum report. The local authority submits that the Tribunal’s finding that the addendum report was relevant, and thus admitted, shows that it was considered, and that a Tribunal is not required to refer to every piece of evidence in its reasons. In the circumstances, neither argument is persuasive. If Ms Long’s 2021 report merited specific consideration in the Tribunal’s reasons, then so did the 2022 addendum to that report, all the more so because the addendum, unlike the 2021 report, related to D’s newly altered educational circumstances. The Tribunal’s rationale for rejecting the 2021 report included that it was drafted on the assumption that D would be educated at school. That did not apply to the addendum report and so could not have been relied on to reject it. The Tribunal’s reasons say nothing about why Ms Long’s 2022 addendum report was rejected and that rendered the reasons given for the Tribunal’s insufficient.