[2025] UKUT 239 (AAC)

The First-tier Tribunal’s jurisdiction on an appeal under section 51 of the Children and Families Act 2014 (CFA 2014) is limited to considering the matters set out in that section, which are all specific decisions that have to be taken by local authorities in relation to children with EHC Plans. Its powers on such an appeal are laid down in regulation 43 of The Special Educational Needs and Disability Regulations 2014 (2014 Regulations). The First-tier Tribunal has no jurisdiction over what happens once an appeal is determined. It has no powers of enforcement. Alleged failures by a local authority in implementing an EHC Plan or a First-tier Tribunal decision must be taken to the Local Government and Social Care Ombudsman or the High Court on judicial review. The First-tier Tribunal has no jurisdiction in relation to the local authority’s duty under section 42 of the CFA 2014 to secure special educational provision in accordance with the EHC Plan.

Before considering the grounds of appeal in more detail, I need to deal with some case law that the appellants have relied on in relation to this appeal.

The cases of R (L) v Devon County Council [2011] UKUT 192 (AAC) and R (C) v London Borough of Sutton [2010] UKUT 184 (AAC) to which the appellants refer in their Notice of Appeal do not exist. The latter neutral citation is a valid citation but it relates to a child support case not a case with the title that the appellants have given it. Nor does paragraph 9.169 of the SEND Code of Practice 2015 say anything about obtaining parental consent to ‘off-rolling’. We did not discuss these references at the hearing as I considered it unnecessary to do so as in my judgment the appellants arguments could properly be advanced without those references, but the local authority did raise the non-existence of these cases in its late written submissions. It may be these legal references were the product of AI generation as it is well known that AI ‘hallucinates’ the names of legal cases and legislation.

In their rebuttal document, the appellants have supplied some alternative references. The case of B and M v Cheshire East Council [2018] UKUT 232 (AAC) is advanced in place of the non-existent R (L) v Devon County Council [2011] UKUT 192 (AAC). B and M does exist, but I am afraid it does not assist either, as it does not contain the passage that the appellants quote as coming from [25] of that decision, and it is a case about a decision by a local authority to cease to maintain an EHC Plan. The question for the Tribunal was whether it was ‘necessary’ for the EHC Plan to be maintained, which did involve considering what provision was being made for the young person without an EHC Plan, but the statutory context is quite different to the present case and I find nothing in it that assists.

The appellants also refer to KE and ors v Bristol City Council [2018] EWHC 2103 (Admin). That case was a High Court judicial review in respect of Bristol City Council’s decision to cut approximately £5 million from its high needs special educational needs budget. It is of no assistance in this context at all. The High Court on judicial review has an inherent jurisdiction to consider all relevant issues in assessing whether a public authority has acted unlawfully in public law terms. In contrast, the jurisdictions of the First-tier Tribunal and the Upper Tribunal are limited by statute as I have described above.

The appellants also refer to RP v Barnsley Metropolitan District Council [2025] UKUT 46 (AAC). That is a short decision of Judge Jacobs holding that a First-tier Tribunal erred in law because there were three different versions of the hearing bundle and the appellant as a result had difficulty navigating the hearing and putting forward her case. Judge Jacobs held that the hearing was materially procedurally unfair. Again, I do not consider this case assists. Nothing like that has happened in this case.

In considering this appeal, however, I proceed on the basis of the well-established principle that a First-tier Tribunal must conduct the hearing in a procedurally fair manner. I also proceed on the basis that, generally, if a child is approaching an educational transition, the Tribunal should look ahead and ensure that the EHC Plan is fit to cover the transition. For example, a Tribunal considering an appeal may make an order in the form that Section I should name one school until the end of the current term or school year and then an alternative from the following academic period: see eg Wilkin & Goldthorpe v Coventry CC [1998] ELR 345. However, that case is only authority for the proposition that the Tribunal should exercise its jurisdiction under what is now section 51 of the CFA 2014 to cover that transition. It does not extend the Tribunal’s powers beyond their statutory remit.

In accordance with the legal principles as I have outlined them above, the First-tier Tribunal can also only be expected to consider the case on the basis of the evidence as it is before it on the day of the hearing. A Tribunal does not ordinarily err in law by failing to consider evidence or arguments that were not before it. Changes of circumstances subsequent to a hearing may form an appropriate basis for seeking a review of the First-tier Tribunal’s decision under rule 48(2) of The Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008. In this case, it is apparent that there is a change of circumstances because D has been removed from roll at X School, but the appellants now (apparently unconditionally) want D to attend X School. That opens the possibility of a review under rule 48(2). An extension of time would be required if such an application were to be made now, but that may yet be an avenue that the appellants will wish to explore.

So far as an appeal to the Upper Tribunal is concerned, the focus must be on whether the First-tier Tribunal erred in law on the basis of the position as it stood at the time of the hearing. The position at that time was that the appellants only wanted X School named on the conditional basis that it was subject to “a robust review … and thereafter changes to ensure a harmonious community with full inclusion of [D] and others”. The First-tier Tribunal rightly pointed out that it could not name a school on that basis as it has no power in the context of an appeal under section 51 of the CFA 2014 to make any such direction. The appellants had proposed Y School for consideration at the hearing, the parties were both in the process of looking for other alternative schools and the appellants had another specific school they wished to consider further following the hearing. In those circumstances, it seems to me that it was not arguably unlawful for the Tribunal to name ‘a special school’ as a type once it had concluded that Z School was inappropriate. Section 39(5) of the CFA 2014 permits the Tribunal to name a type of school where parental preference for a particular school has been rejected under section 39(4). This was in my judgment a course that was reasonably open to the First-tier Tribunal in this case as neither party had put forward any other option for consideration at the hearing.

The appellants case on this appeal is in substance that the Tribunal should have left X School named in Section I. However, at the time of the hearing, neither party was asking the Tribunal to leave X School named in Section I, otherwise than on the ‘conditional basis’ that the appellants had been arguing for at the start of the hearing, but had then abandoned. The reason why neither party was contending that X School should remain named in Section I was not because either party considered it to be per se unsuitable, but on the basis that it was no longer the school of (unconditional) parental preference and because of the difficult relations between the appellants and the school. The local authority has suggested that relationships between the appellants and X School meant that X School had become unsuitable, but that was not the case they invited the Tribunal to determine at the hearing. Further, although there are cases where a breakdown between parents and school might lead to a conclusion that a school is ‘unsuitable’, the Upper Tribunal (Judge Ward) in Richmond upon Thames LBC v AC [2017] UKUT 173 (AAC); [2017] ELR 316 at [27]-[30] observed that great caution should be used before that conclusion was reached. In this case, neither party argued before the Tribunal that X School was unsuitable and the Tribunal made no determination to that effect. D remained ‘on roll’ at the school and attending daily at the time of the Tribunal hearing.

The fact that both parties were seeking alternative schools, was an important reason why it was necessary for the Tribunal to leave Section I as naming a ‘type’ of school. Naming X School in Section I at that point would have made it difficult for the appellants to pursue the other school they were then interested in as the appeal would have been determined on the basis that D should continue attending X School. Ordinarily it would be an abuse of process for either party to seek a further amendment to an EHC Plan so soon after a Tribunal hearing.

The only possible alternative to naming a type of school, it seems to me, would have been for the First-tier Tribunal to issue a ‘provisional decision’ on the suitability of Y School and then give directions for an adjournment and further hearing to determine Section I at a later date. Neither party contended for that outcome before the First-tier Tribunal and neither has suggested before me that the Tribunal should have adopted that course of its own motion. For the avoidance of doubt, I do not consider that the First-tier Tribunal arguably erred in law in not expressly considering that option of its own motion given the circumstances. It is not the role of the Tribunal to ‘supervise’ the parties in their search for an appropriate school. The Tribunal’s role is to determine the appeal before it. The Tribunal in this case did that and did not arguably err in law in doing so.

So far as the Tribunal’s decision is concerned, that really is the end of the matter because nothing the local authority did following the decision could render the decision unlawful at the time it was taken. However, given that both parties argue (in different ways) that what the local authority did following the hearing was a consequence of the First-tier Tribunal’s decision, I need to explain what that is not the case.

The naming of ‘a special school’ in Section I of D’s EHC Plan left the parties free to reach agreement as to school placement, or for the usual statutory processes to be followed for parents to request a particular school be named and the local authority to consider that request in accordance with the statutory framework, with any consequential amendment to the EHC Plan triggering a further right of appeal for parents.

As X School is a special school, it also meant that it was open to the local authority to comply with its obligation under section 42 of the CFA 2014 by maintaining D’s place at X School or by identifying an alternative special school for D, taking account of any parental preferences, through the statutory framework. The framework of course includes the obligation on the local authority under sections 38 and 39 of the CFA 2014 to consult with parents and consider their preferences before changing the school named in Section I.

By section 61 of the CFA 2014 a local authority is only permitted to arrange special educational provision otherwise than in a school if it is satisfied that it would be inappropriate for provision to be made in a school, and before doing so the authority must consult the child’s parent. If the local authority considered that, as a result of the breakdown in relations between the appellants and X School, it was ‘appropriate’ for provision to be made for D otherwise than in a school for a period, it was therefore obliged to consult the appellants before taking action to provide education in that way.

Notwithstanding that regulation 8(2) of the 2006 Regulations in principle permits a local authority to consent to the removal of a pupil from the roll of a special school, there were thus statutory obligations on the local authority to consult parents before naming a new school in Section I or deciding that D’s educational provision had to be made otherwise than at school for a period through section 61 CFA 2014 (reinforced by the duty in section 19 of the Education Act 1996).

The only practical legal effect of the Tribunal’s decision to name a type of school in Section I rather than leave X School named was that X School ceased to be under a ‘duty to admit’ D under regulation 43 of the 2014 Regulations. However, D had already been admitted to the school, and it does not follow from a school no longer being under a duty to admit that they are permitted to exclude a child otherwise than in accordance with the proper procedures, and for the proper reasons.

The local authority’s position in this case is that D was not excluded, but that he was removed from roll as a consequence of the First-tier Tribunal’s decision (and/or perhaps because the local authority believed that the appellants no longer wanted him to continue at X School).

It is understandable that, because of the stance taken by the local authority, the appellants have focused on the First-tier Tribunal’s decision and contended that it ‘allowed’ the local authority to do what it has done. However, that is not the case. The Tribunal is not arguably responsible for the subsequent actions of the local authority, which were not directed, caused or permitted by anything the Tribunal had done or not done. The Tribunal at the end of its decision added a plea to the local authority to comply with its legal obligations. The Tribunal’s (wholly reasonable) expectation was that the local authority would adhere to the statutory framework set out above and the Tribunal did not arguably err in law in proceeding on that basis.