[2023] UKUT 311 (AAC)

A’s circumstances materially changed in March and April 2021.

On 03 March 2021 A’s parents entered into a section 20 Agreement with the Local Authority. On 17 March 2021 an annual review meeting took place with the Headteacher, other members of the School team and a social worker on behalf of the Local Authority. At that meeting it was decided that A required 24-hour care and education and that the School was no longer a suitable placement. On 06 April 2021 A was placed by the Local Authority into a children’s care home around 30 miles away from the School, which made daily attendance on-site impracticable.

The Tribunal found under its consideration of objective justification that there were no reviews undertaken by the School. There were also concurrent proceedings regarding the content of the EHC Plan in which all parties accepted that the School could no longer be part of the Plan.

In those materially changed circumstances the fact that the School continued to be named on the EHC plan was not necessarily an indicator that its decision on 02 February was an ongoing state of affairs.

Given the substantial change in circumstances, it is not clear from the Tribunal’s decision how it concluded that the School being named in the EHC Plan was conduct extending over a period beyond March and April 2021. The Tribunal has not sufficiently identified the circumstances it has taken into account, explained how these were weighed in the balance and the relevant factors upon which it reached its decision. The authorities on this issue demonstrate why careful analysis is required.

It was an error of law for the Tribunal to conclude from the facts that there was a conduct extending over a period by the School once the Respondents had entered into the Section 20 Agreement with the Local Authority, the decision had been taken that the School was no longer an appropriate placement, and A had been placed at the care home. The section 20 Agreement and the move to the care home were decisions made by the Local Authority, not the Appellant school. Therefore, it could no longer be said that those decisions or the circumstances that followed them amounted to an ongoing state of affairs by the School. The highest that can be argued is that they were continuing consequences of the February decision conveyed by the Headteacher.

Even if it can be argued that the decision that the School was no longer an appropriate placement for A was principally one made by the School itself and not the Local Authority, that decision crystallised when A moved to the care home. As found by the Tribunal: “The RB genuinely considered that by the point when [A] started residing at the children’s home – from 6 April onwards, it was no longer responsible for any element of is education . . . The annual review meeting of 17 March 2021 had become the point at which [the School] considered it was no longer suitable for [A]”.

On any analysis of the facts as found there was no conduct extending over a period by the School after 06 April 2021 and it was an error of law for the Tribunal to conclude that there was. The time limit for the School’s potential liability started to run from that date.

Therefore Appeal Ground 2 is upheld.