[2023] UKUT 223 (AAC)

The focus therefore needs to be on the [tribunal]’s application of the limb (i) [of s39(4)(b)] test. I have a concern, not articulated in the original grounds of appeal but contained within [OO]’s “additional submission” prepared for the hearing before me, which I consider is potentially germane. A very strong factor in the [Respondent]’s case and the [decision] were the difficulties that would be caused by a lack of space for Q, particularly in the context of his needs and those of the existing pupils who as a result of their ASD “require space and limitations on disturbance and activities present” (decision, paras 59 and 60). Ms Freame’s evidence (see e.g. D95/p570 at [19] and D100/p575) clearly envisages that Q will need 1:1 and in some instances 2:1 provision, something which is clearly highly relevant to the feasibility of accommodating a pupil where space is limited. However, that is not what the EHCP, as ordered by the [tribunal], says. Without reciting all the references, an example may be found in Section F under “Targeted Intervention”: “Interventions… may be delivered in a 1:1, small group or as a small class.” Clearly Ms Freame was of the view that Q needed a level of provision that was more than her school was willing or able to provide, but going on the terms of its order, that was not also the [tribunal]’s view.

It is arguable with a realistic prospect of success – which is all [OO] needs to show at this point – that the [tribunal], particularly in its finding in [60] that “the quality of provision for existing pupils will be materially affected” (my emphasis) was not applying the statutory test, as interpreted in paras 32-36 of NA v LB Barnet (SEN) [2010] UKUT 180 (AAC) (though it would be a mistake to latch on to one particular statement within those paragraphs in isolation).

Even if it was applying the statutory test, so interpreted, it is also arguable that in doing so the [tribunal] took into account irrelevant matters (namely the provision considered by Ms Freame to be necessary but which the [tribunal] itself did not order – thus a form of “gold-plating” – see [11] above) and/or that there were insufficient findings of fact and/or reasons given to explain to the reader the basis on which the test in limb (i) was made out.