[2025] UKUT 068 (AAC)

As her Ground 2, Ms Shepherd submitted that the ETW Panel erred in concluding that X requires 27.5 hours of TA support per week. The Council requires permission to appeal on this ground, if it is to pursue it. Permission will be granted only if the Council can show that the ETW Panel’s Decision arguably involved the making of an error on a point of law, i.e. that the ground of appeal is based on an error of law and has a realistic prospect of success.

The evidence upon which Mr & Mrs X relied in relation to TA support was from an educational psychologist, Ms Patricia Kershaw. In paragraph 13 of her Report dated 23 September 2023, she gave her opinion that 27.5 hours of TA time was required as part of X’s ALP, and she set out at some length the role of TAs she proposed. In paragraphs 48-51 of her Report of 25 July 2024, she explained that that time was made up of 5.5 hours per day, which she considered appropriate and required by X in a mainstream classroom with a class size of 23. She said that, in her opinion, if X were educated in a smaller secondary school environment with smaller class sizes, she “anticipated that a reduction in the suggested 27.5 hours [TA] time to 5 hours per week would be possible” (paragraph 51). Ms Kershaw did not, in the event, give oral evidence and was therefore not cross-examined on her opinion.

The Council responded to her evidence in paragraph 33 of its Case Statement dated 15 May 2024 and paragraphs 9-12 of its Case Statement dated 19 June 2024. The Council also called a specialist teacher to give evidence to the effect that she did not consider X required full-time one-to-one support as Ms Kershaw thought.

In her Ground 2, Ms Shepherd submitted that the ETW Panel placed too much weight on the (untested) evidence of Ms Kershaw and insufficient weight on the (tested) evidence of the specialist teacher – in particular, Ms Kershaw had failed to explain why the Council’s proposed model would not meet X’s ALN or specifically how 27.5 hours of one-to-one support would help X “access the curriculum”; and the Panel gave inadequate reasons for preferring the former to the latter. It is also submitted that the ETW Panel wrongly proceeded on the basis that X was “not currently in education”, when he had been in education until the end of the 2023-24 school year and the 2024-25 school year had only started on 2 September 2024.

The ETW Panel dealt with this issue, in some detail, in paragraphs 63-79 of their Decision. They set out the relevant evidence, as they considered it to be, including that of Ms Kershaw and (albeit briefly) that of the specialist teacher. The Panel said that the Council had not produced “equivalent expert evidence to challenge [the opinion of Ms Kershaw]”; which, without diminishing the experience and expertise of the specialist teacher, appears to have been a fair comment.

Following assessment findings from X’s primary school, Ms Kershaw set out in her evidence what functions she saw TAs performing and, in her professional opinion, as part of his ALP, that he required 27.5 hours of TA support. It would no doubt have been better if Ms Kershaw had given oral evidence and had been open to cross-examination, but the weight given to evidence is quintessentially a matter for the Panel who no doubt took into account the fact that they only had Ms Kershaw’s written evidence. Although I understand the Council does not agree with it, the weight the Panel gave to Ms Kershaw’s evidence and te specialist teacher’s evidence respectively was not arguably wrong in law. The reasons given by the Panel were unarguably adequate: they preferred the evidence of Ms Kershaw (to which they referred) to the evidence (including that of the specialist teacher) which suggested a lower figure for TA support was required. Nothing further, in terms of reasons, was needed. The reference to X being out of school in September 2024 was true, albeit it had been, by that stage, only short in duration.

This ground of appeal amounts to no more than a disagreement with the ETW Panel on a finding of fact which they could properly make on the evidence before them. The contrary is unarguable.

I refuse permission to appeal on this ground.