[2023] UKUT 177 (AAC)

It was correct that the claim lay against the post-Review Decision, but the Council submitted that that necessarily had to be read in the context of the Decision for the reasons stated previously. Regarding the reference to paragraph 18 of the Council’s submissions dated 22 August 2022, that must be read in the context of paragraph 1(a) of Judge Tudur’s order in the Review Decision. It could be seen from paragraph 24 of the Decision that the Council’s position was that it disputed that “not all of the daily support from the autism mentor/personal assistant/specialist worker trains or educates A and so it is not appropriate for it to be classified, in its entirety, as special educational provision”.It was denied that the claim went beyond the position previously taken by the Council. Alternatively, the Tribunal still made the errors as argued.

RB v FTT[2010] UKUT 160 (AAC) concerned an appeal against a review decision. However, this was a claim against the post-Review Decision, not the Review Decision itself. There was a difference between the discretion to conduct a review and a reconsidered decision which was taken as a result of a review. Ordinary judicial review principles should be applied in the latter situation; no stricter test was required.

It was not disputed that the Upper Tribunal should have regard to the expertise of the First-tier Tribunal. There were various authorities to which both parties could undoubtedly direct the Upper Tribunal regarding the approach taken to appeals against first-instance decisions in the SEND context. Whilst this case was not an appeal, but rather a judicial review, the Council acknowledged that some cross-reading of those principles was warranted, but ultimately the Upper Tribunal was applying judicial review principles and was not concerned with an appeal.

The point made by A in paragraphs 65 to 67 above was difficult to follow in light of what the Tribunal actually said in the post-Review Decision. The Tribunal plainly still had in mind the Decision when it made the post-Review Decision and expressly incorporated its previous reasoning. The post-Review Decision could not be read in any other way.

With specific reference to Ground 1

as was evident, in paragraph 8 of the post-Review Decision (in which the Tribunal said that 5 hours per week should be specified in Section F), the Tribunal did not say whether it was applying s.21(1) or s.21(5). Nor did it clarify that expressly in any other place in the Decision or post-Review Decision.

there appeared to be no dispute between the parties that special educational provision could be recorded in Section F of an EHCP on the basis of either s.21(1) or s.21(5). However, on one reading it was suggested at paragraph 79 above that A took the view that provision was capable of being special educational provision under s.21(1) and s.21(5) simultaneously. If that were the intention of the submission, the Council disagreed.