[2024] UKUT 128 (AAC)

the judgment below had to be considered holistically: it was clear that the Tribunal considered all the documentation before it and turned its mind to questions of law and fact. It formed its own view about the appropriateness of the decision in light of the facts and the law. It did not exceed its statutory function. That was simply another instance of the Council disagreeing with the Tribunal’s conclusions on the basis of narrow textual analysis, which was to be deprecated (Volpi v Volpi [2022] EWCA Civ 464 at [2]).

the Tribunal was entitled to determine whether the Council came to the correct conclusion on matters of law. That was what the Tribunal was doing. The Council’s contentions were simply wrong. In focusing on the Council’s procedural failings the Tribunal was considering a matter of law and a matter of fact; it was entirely open to it to do so on a general appeal.

the Tribunal did not, in any event, make a finding of unfairness. However, what it was doing was assessing the facts to determine whether the local authority came to the correct conclusion. That was a permissible approach. It did not amount to a review akin to judicial review.

the Tribunal did not find that the Council was prevented from maintaining the plan abroad; it found that the “LA cannot comply with its duty to secure the provision in Section F of T’s EHCP whilst he attends school in Dubai”. That was a permissible consideration of the facts and judgment relevant to the Council’s decision. It was not akin to a judicial review.

the primary conclusion was that the provisions of regulation 31 were stated to be mandatory so that the Council’s (conceded) failure to comply with it invalidated its ceasing decision; or

as a secondary conclusion, the Council should make adjusted provision for T as the child of a serviceman because he faced a disadvantage not faced by others in different circumstances and the Council could maintain the EHCP without breaching its duty to secure the educational provision in Dubai.