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Heading
Westminster CC v (1) FTT (HESC) (2) A (SEND)
IN THE UPPER TRIBUNAL Appeal No. UA-2022-001731-JR
(ADMINISTRATIVE APPEALS CHAMBER)
ON APPEAL FROM THE FIRST TIER TRIBUNAL (HESC)
(SPECIAL EDUCATIONAL NEEDS & DISABILITY)
Tribunal Ref EH213/21/00020
Between
WESTMINSTER CITY COUNCIL
Applicant
and
FIRST TIER TRIBUNAL (HESC)
Respondent
and
A
Interested Party
BEFORE UPPER TRIBUNAL JUDGE WEST
Decision Date: 12 July 2023
Representation: Mr Alexander Line, counsel (for the Applicant)
(instructed by Westminster City Council)
Mr David Wolfe KC, counsel (for the Interested Party)
(instructed by Simpson Milar)
ORDER
Pursuant to rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008, it is prohibited for any person to disclose or publish any matter likely to lead members of the public to identify the young person in these proceedings. This order does not apply to (a) the young person’s parents (b) any person to whom the young person’s parents, in due exercise of their parental responsibility, disclose such a matter or who learns of it through publication by either parent, where such publication is a due exercise of parental responsibility (c) any person exercising statutory (including judicial) functions in relation to the young person where knowledge of the matter is reasonably necessary for the proper exercise of the functions.
DETERMINATION
The decision of the First-tier Tribunal (HESC) (Special Educational Needs & Disability) (which sat on 2 May 2022 and 20 September 2022) dated 23 February 2023 and 20 September 2023 under file reference EH213/21/00020 does not involve an error on a point of law. Permission to appeal against that decision on Ground 1 is refused. Although permission to appeal is granted on Ground 2, the appeal against that decision is dismissed.
This determination is made under section 11 of the Tribunals, Courts and Enforcement Act 2007.
REASONS
- Heading
- Introduction
- Parties
- Test for Permission
- Background
- The Tribunal’s Decision
- The Amended Final EHCP
- Application For Permission To Appeal
- Review
- Written Submissions Before The Review Hearing
- The Review Hearing
- The Post-Review Decision
- Ground 1: The Tribunal erred in its conclusion that the mentoring support during term time constituted special educational provision. Alternatively, to the extent that the Tribunal was entitled to con
- Judicial Review
- Ground 1: the Tribunal erred in its conclusion that the mentoring support during term time constituted special educational provision. Alternatively, to the extent that the Tribunal was entitled to con
- Ground 4: in relation to the Review Decision, Judge Tudur acted in a procedurally improper way and/or in a way which was ultra vires, by setting aside only part of the Decision Grounds 3 and 4
- The Council’s Submissions
- in East Sussex County Council v KS [2017] UKUT 275 (AAC) at [89] the Upper Tribunal held that, even if medical and nursing support was essential for a child to be educated, that did not make it specia
- in East Sussex County Council v JC [2018] UKUT 81 (AAC) at [29] the Upper Tribunal recognised that the provision of a powered wheelchair could only be special educational provision to the extent that
- Ground 2
- A’s Submissions
- Overall Approach (1)
- Overall Approach (2)
- Ground 1 – mentoring as special educational provision
- Ground 2 – mentoring every day
- The Council’s Reply
- what A failed to address was that the Tribunal did not say whether it was applying s.21(1) or s.21(5) . As the Council had previously pointed out, it was much more likely that the Tribunal was applyin
- A wrongly proceed on the assumption that the Tribunal found that the provision was s.21(1) special educational provision. But, for reasons already set out, the Council did not accept that that was a r
- a need for consistency was generally not to be equated with a need for special educational provision: Learning Trust v MP [2007] EWHC 1634 at [41]. The cases showed that cases where consistency alone
- consistency across settings and consistency of development were not necessarily materially distinct. That still went to the point raised by the Upper Tribunal in Hampshire County Council v JP [2009] U
- Analysis
- at least some of the mentoring support constituted respite, which was not special educational provision (paragraph 40 above)
- Ground 2
- The Exercise Of The Power To Review
- Conclusions