[2024] UKUT 317 (AAC)

Section 45(2) of the Children and Families 2014 Act (2014 Act) provides:

As held by Upper Tribunal Judge Mitchell in B & M v Cheshire East Council [2018] UKUT 232 (AAC) the use of ‘includes’ in section 45(2), shows that the cases in which maintenance of an EHC Plan is no longer necessary are not restricted to the case where the specified special educational provision is no longer required.

Section 45 (3) provides ‘When determining whether a young person aged over 18 no longer requires the special educational provision specified in his or her EHC plan, a local authority must have regard to whether the educational or training outcomes specified in the plan have been achieved’.

Section 45(3) is supported by section 44(5) of the 2014 Act, which provides, ‘In reviewing an EHC plan maintained for a young person aged over 18, or deciding whether to secure a re-assessment of the needs of such a young person, a local authority must have regard to whether the educational or training outcomes specified in the plan have been achieved’.

Section 20 (1) provides ‘A child or young person has special educational needs if he or she has a learning difficulty or disability which calls for special educational provision to be made for him or her’.

Section 21 defines special educational provision in the following terms:

In EAM v East Sussex CC [2022] UKUT 193 (AAC) the UT set out that ‘Section 21(1) defines ‘educational provision’. Section 21(5) refers to ‘health care provision … which educates or trains a child’. Those expressions are different… A provision may be educational without itself educating a child [8-9].

Section 77 of the 2014 Act provides that the Secretary of State may publish a Code of Practice to provide guidance to local authorities in respect of EHC Plans. Pursuant to section 77, the Secretary of State published the SEND code of practice. It provides the following relevant guidance to local authorities,

Section 77(6) of the 2014 Act provides, ‘the First-tier Tribunal must have regard to any provision of the code that appears to it to be relevant to a question arising on an appeal under this Part’.

In Buckinghamshire County Council v SJ [2016] UKUT 0254 (AAC) the UT considered when it was necessary to maintain an EHC Plan. It held ‘The tribunal had to decide [whether to cease to maintain] as a practical matter. … the issue was not about what Ryan needed but about access to it. Necessity has to be judged practically and in light of the reality, not by reference to attainments that are more theoretical than real’ at [33].

Further, and helpfully, inB & M v Cheshire East Council, the UT came to the very rational conclusion that ‘…in deciding whether to cease to maintain an EHC Plan, a local authority should ask itself whether a young person would meet the test for preparing and maintaining an EHC Plan in the first instance. If the answer is ‘yes’, I do not see how a local authority could properly decide that it is no longer necessary for an EHC Plan to be maintained’.

Relevant case law also assists with the scope of the duty on FtT’s to give reasons for their decisions. In H v East Sussex CC [2009] EWCA Civ 249 the Court of Appeal explained that the FtT ‘is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts’ [16-17].

However, there is a general expectation, the FtT will need to make findings on the disputed aspects of the case put such that a party knows why their case on each disputed aspect has been rejected, JJ & EE v Buckinghamshire Council [2022] UKUT 345 (AAC) [33].

In Flannery v Halifax Estate Agencies Ltd [2000] 1 WLR 377, the court concluded that ‘ …where the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the [FtT] must enter into the issues canvassed before [it] and explain why [it] prefers one case over another. That is likely to apply particularly in [appeals] where, as here, there is disputed expert evidence; but it is not necessarily limited to such cases’.