[2024] UKUT 317 (AAC)

The correct legal test is set out in section 45 of the 2014 Act. In essence it is one of necessity. The language of section 45 makes clear ‘necessity’ is not limited to the circumstances where special educational provision is itself no longer necessary. It follows from this that it may include the position where special educational provision is necessary, but for some reason does not require a EHC Plan in order to provide it.

At the outset of the conclusions section of its decision, the FtT reminded itself that ‘Both parties’ closing submissions set out the legal framework surrounding a Local Authority’s decision to cease to maintain. We have borne this in mind along withthe totality of evidence within the bundle’. I accept the submission of the Respondent that it is important to note that there was no dispute as to the applicable legal framework and the Tribunal’s expression of its reasons has to be considered in that context.

Whilst I agree with the Respondent’s submission that the conclusions of the FtT must be considered in the context in which they were made. I do not accept their submission, that the FtT knew the test to apply, applied it and that there is nothing to demonstrate to the contrary contained within the FtT’s reasons.

The essence of the FtT’s reasoning is that EM has ‘deep seated difficulties’ and the tribunal did not consider that he was able to ‘acquire independence and employment skills beyond those that might be developed as part of a daily living or social care routine’ [38]. The FtT reasoned that the ‘Appellant’s level of attainment was in line with his potential and that although ‘routines might develop’ this was not evidence of ‘significant learning potential’ [35].

The phrase ‘beyond those that might be developed’ clearly demonstrates that this is not a set of circumstances in which the FtT concluded there was no potential for further learning. It was also agreed between the parties for any learning to take place some degree of specialist provision was necessary. The FtT had found (and it was not disputed by either party) that there had been a need for a high level of support for EM to learn to date. The Respondent’s evidence supported the need for a high level of input and support moving forward. The Educational Psychologist instructed by the Respondent, Ms Askew, made recommendations for outcomes and provision that stretched over six pages of her report.

The FtT’s reasons were brief. They concluded that EM’s capacity for learning is limited to acquiring ‘independence and employment skills … that might be developed as part of a daily living or social care routine’ (paragraph 38 of the FtT’s reasons) and therefore an EHC Plan is not necessary. Why they reached this conclusion is not clear.

There is no distinction in the language of the 2014 Act as to what ‘subjects’ are educational. Learning daily living skills or independence may be educational as much as training in a vocational skill or practising for an academic examination may be. In Buckinghamshire County Council v SJ [2016] UKUT 0254 (AAC) the Upper Tribunal concluded that it ‘reject[ed] any suggestion that the attainment of qualifications is an essential element of education. For many of those to whom the 2014 Act and Regulations apply, attaining any qualifications at all is not an option. That does not mean that they do not require, or would not benefit from, special educational provision [30]…It is true that Ryan was functioning only at a pre-school level. That meant, no doubt, that any further achievements would be small. That does not mean that they would not be valuable for Ryan in his adult life’ [31]. Although Buckinghamshire was considered in the context of section 37 of the 2014 Act and whether it was necessary to make special educational provision in accordance with a EHC Plan, the point is equally applicable to the circumstances of whether an authority should cease to maintain a Plan (see B & M, as set out above).

The crux of the FtT’s reasoning is that because a significant amount of special educational provision had been needed to achieve what they considered amounted to a small amount of progress, an EHC Plan was no longer necessary. The conclusion that the amount of learning must reach a certain degree in proportion to the amount of provision made for a EHC Plan to be necessary is not supported by the wording of section 45. Although the potential for learning may be a relevant factor as to the question of whether an EHC Plan is still necessary, a particular level of learning potential is not an essential prerequisite for an EHC Plan.

This analysis is supported by the language of section 21(1) which does not specify that the ‘educational and training provision’ needs to actually ‘educate or train’, unlike under section 21 (5) where this is expressly specified.

The Respondent made the submission before the UT that ‘If EM was not going to acquire independence or employment skills beyond those that he would acquire through a package of social care, it is difficult to see what purpose maintaining an EHC Plan would serve. Educational provision cannot be necessary in the context of a person, beyond compulsory school age, if it will not materially affect their life skills’. The argument was developed that having had an EHC Plan and having been in receipt of special educational provision throughout the period of compulsory schooling, there is no reason to believe that he will attain more through continued educational provision than he would through adult social care.

If the FtT considered the provision necessary to support the acquisition of independence skills could be met in an adult social care setting and would be arranged even if an EHC Plan were not in place, there was no explanation provided in their reasons as to how this view was reached.

The FtT’s reasons did not address the question of what provision was necessary to enable EM to develop independence skills. The FtT’s reasons did not address whether that provision fell within the definition of special educational provision set out in section 21. It is difficult to see how the FtT could conclude that the necessary provision could be made by social care and without an EHC Plan without first addressing the question of what provision was necessary.

The FtT’s reasons did not include any view as to whether the necessary support was educational provision even if it did not educate. Something can be the former, even if does not do the latter, they are two different concepts as was explained by the Upper Tribunal in EAM v East Sussex CC.

The lack of any reasoning on the above issues was of particular significance as this was a primary issue between the parties before the FtT. The appeal had specifically raised the question of whether social care provision could meet EM’s needs, specifically his therapeutic needs for speech and language therapy, occupational therapy and music therapy. Ms Askew recommended a very wide range of input for EM going forward, including therapeutic input. The Respondent’s position was that such therapy was not available currently through the adult social care provider, but could be commissioned and this was being looked into.

I agree with the submission of the Appellant that where the evidence includes specialist advice that a young person requires special educational provision, the FtT must explain, to some degree, why it has concluded that the provision can be made without an EHC Plan.

The Respondent submitted to this tribunal, that the FtT had formed the view that the necessary continuing support and provision was not to be classified as educational provision or educational. If that is correct then the FtT ought to have addressed this conclusion in its reasons because there was evidence before the FtT from an expert educational psychologist which made lengthy recommendations for continuing provision.

The Respondent submitted that this was an immaterial error. I do not agree. There was a factual dispute before the FtT as to whether the necessary continuing provision could be made without an EHC Plan. This was a key issue in the appeal. I would therefore have expected the FtT to have considered the point and to have provided a conclusion on a. whether the necessary future provision was special educational provision and b. if it could be provided without a EHC Plan. It did not do so and that was a material error of law.