[2025] UKUT 323 (AAC)

Ground 1h concerns the Tribunal’s conclusion in relation to the discrete issue of regression during holidays in Section B of the EHC Plan. The appellants complain that the First-tier Tribunal perversely took into account as part of its reason for concluding that Ali does not significantly regress during school holidays that “[School Y’s Principal] told us that they had not seen him regress during the holidays”. The appellants point out that as Ali has been attending School Y on a 52-week basis, School Y could not have seen Ali regress during the school holidays and that, far from justifying a conclusion that he does not significantly regress during school holidays, this evidence from School Y was essentially irrelevant to the issue in dispute on Section B.

The appellants submit that this error was material because it has infected other parts of the First-tier Tribunal’s decision, in particular its conclusion that he was “on a general trajectory of progress and any regression must fairly be seen in that light”. The appellants submit that the Tribunal has based this conclusion on what School Y’s Principal said about his progress at School Y, but that should have been recognised by the First-tier Tribunal as evidence of progress on the basis of a 52-week curriculum not on the basis that (as it appears on the face of the decision the Tribunal thought) he was progressing despite having holidays at School Y (when he was not).

Ground 1j was that the Tribunal had wrongly recorded Ms Burns as giving the evidence that “[Ali] would go for a cuddle and seek out reassurance” when in fact it was School X’s HLTA, Ms J, who had said this. The appellants also point out that the local authority’s response suggests that the Tribunal had in addition wrongly attributed the evidence that Ms J gave about Ali regressing and losing skills during school holidays to Ms Burns and that this further underscores the error that the Tribunal made in relation to the evidence about regression during school holidays.

The appellants further submit that, on the face of the decision, it does not appear that the Tribunal understood there was a conflict of evidence on the issues of regression during holidays and progress at all, when in fact this was a major point of dispute between the parties. The appellants say they drew the Tribunal’s attention to documentary evidence in the bundle apparently showing lack of progress in relation to understanding instructions, failure to attain targets as between 2022 and 2023, no progress demonstrated in an Achievement Report and the May 2020 and May 2023 annual reviews noting only “some progress” made against long-term outcomes. The Educational Psychologist instructed by the appellants, Dr Grace, had accepted parents’ concerns about regression during holidays (FTT bundle, p 241) and also noted apparent regression since Ali stopped receiving weekly SALT input (FTT bundle, p 244).