[2025] UKUT 323 (AAC)

The First-tier Tribunal’s decision following this second hearing was sent to the parties on 14 March 2025. The decision contains a number of errors, some of which were originally raised by the appellants as grounds of appeal, but on which I refused permission because I considered them either to be immaterial or merely typographical errors. Nonetheless, it is appropriate briefly to note here what those errors are so that they are not repeated when this case is remitted (as I have decided it must be). In particular: the decision does not correctly list the late evidence that was admitted or not admitted; it states that Ali has a diagnosis of ADHD when he does not, and fails to refer to his diagnosis of ASD; it fails to mention the attendance of Mr Dhugga; the name of School Y’s Principal is mis-spelled throughout the decision; Ali’s name is frequently mis-spelled, and there is an incomplete sentence in the final version of the Working Document issued with the decision.

The First-tier Tribunal in its decision identified the issues that it needed to determine as follows:-

The Tribunal dealt with the issues in that order in its decision. So far as the “Discrete issues in Section B” are concerned, the Tribunal addressed these by reference to the wording that remained in dispute in the “Working Document” version of the EHC Plan that the parties had prepared for the hearing. It is relevant to note that the parties had agreed in advance of the hearing that Section B should include the following descriptions of Ali’s special educational needs:-

“[Ali] is unable to complete any aspect of dressing independently. [Ali] is unable to manipulate fasteners, large buttons or zips.”

“[Ali] is not toilet trained and is in pads. He is not aware of his toileting needs and relies fully on adults to support his personal care.”

“[Ali’s] nappies are frequently soiled and leaking, as he is always on Movicol medication due to his constipation.”

“[Ali] relies upon adult support for most of his self-help skills.”

On the issues relevant to this appeal that were still in dispute in Section B, the Tribunal held as follows:-

“2.

“[Ali] regresses and loses skills during school holidays.” Ms Burns gave evidence that [Ali] regresses and loses skills during the school holiday. We accept the evidence by [Ms J] and find that [Ali] does lose skills during the school holidays, however this is typical of many children. [Ms J] told us that [Ali] “catches up” easily when term re-starts. [School Y Principal] told us that they had not seen him regress during holidays. We have therefore deleted this wording. …

4.

[Ali] is “not yet consciously aware of his emotional needs and is not able to ask for or express his need for emotional support,” and

the rest of the paragraph. This is from Dr Grace’s report, however [Ms J’s] evidence was that [Ali] displays his emotions but not consciously aware. Ms Burns gave evidence that [Ali] would go for a cuddle and seek out re-assurance. [School Y Therapies Manager] agreed that [Ali] is aware of his emotions. [School Y Principal] agreed that he displays his emotions but had not observed intentional communication around his needs. We find that [Ali] is aware of his emotions. Ms Burns has observed him seek out emotional support. We therefore delete that sentence.

5.

“[Ali] has limited emotional regulation and is unable to initiate and implement..” [Ms J’s] evidence was that [Ali] would stim, which would assist with emotional regulation. School had not observed challenging behaviour or resistance to support. [School Y Principal] confirmed that no challenging behaviour observed in [School Y]. We therefore deleted the entire paragraph as the evidence does not support it. …

11.

“[Ali] becomes highly distressed when engaging in personal care tasks…” This was not observed by any witness from [School X]. [School Y Therapies Manager] said that he can become distressed but he is slowly allowing others to help him. [School Y Principal] confirmed that they have introduced role play and social stories so that he is not resistant. As this is being managed and he is improving, we do not consider it necessary to include this wording. …

16.

“[Ali] is increasingly resistant to and distressed by many aspects of daily life, ranging from routine activities like getting dressed or changed, to going out and about… [Ali] is unable to complete any aspects of washing independently. [Ms J] told us that he did not resist as long as the routine was organised. He was supported in his washing. Witnesses from [School Y] told us that his resistance had improved and he was supported in his washing. We amend the sentence to reflect the evidence heard. …

18.

“[Ali] is resistive to having his teeth brushed,” the witnesses from [School Y] told us that he is resistant to hair brushing and teeth cleaning. His bowel movements have improved. We have amended the sentence to reflect the evidence heard.

The Tribunal then went on to deal with Issue 2 (“Extended day curriculum and residential placement”) and it is worth setting out this part of its decision in full:

“1.

We did not find that [Ali] required an extended day curriculum or 1:1 support.

2.

[Ms J] gave evidence that [Ali] does not require an extended day curriculum.

3.

[Ali] did not display any challenging behaviour at [School X] or within the residential setting at [School Y].

4.

There was no evidence that [Ali] needed education that extended beyond the school day. [Ms J] agreed that self-care and independent living skills did amount to educational needs, however [Ali] received such education and training at [School X] in the school day. [Ms J’s] evidence was that [Ali] had made progress across the board.

5.

[Ms J] agreed consistency of approach, liaison with home and communication boards to support [Ali] were important but did not amount to an educational need.

6.

Ms Burns agreed that lots of children regress during the holidays, however any regression was not out of the ordinary and did not call for a 52 week placement. His gains are not negated by the length of time he is out of school.

7.

Ms Burns’ evidence was that there was a social care need for the family and school to work together.

8.

[School Y Principal] gave evidence that [School Y] has a holistic approach to education and that 24 hour/ 52 week approach cannot fail to impact and [Ali] had made “significant progress.” [Ali’s] confidence has increased.

9.

[School Y Principal] gave evidence about how the school operates which need not be replicated here as the LA accept that the school is suitable for [Ali] albeit not on a residential basis.

10.

[School Y Principal] did not think that there could be any reduction in the 52 week residential placement as [Ali] has severe needs that requires “consistency in approach.”

11.

[Ali] lives in a cottage which provides him with opportunities to increase his socialisation. After the traditional school day, [Ali] engages in activities such as candle making, craft work, baking activities and pottery. He has the opportunity to go to the farm and enjoy the outdoors. All that the children do in the school day is extended to the weekend and evening. The extended day enables [Ali] to further generalise the skills taught in school.

12.

MJ gave evidence that the parents could not replicate the opportunities and care afforded to [Ali] at [School Y]. The family would prefer [Ali] to live with them, however, they have seen [Ali] progress in the time that he has been away from the family home and believe that it is in his best interests to remain there. We found the evidence for an extended day curriculum to be weak. There is no doubt that [Ali] has benefitted from his time in [School Y], but the test is whether an extended day provision is reasonably required and if a residential placement is the medium within which it is to be provided.

13.

The parents’ case was predicated on the report by Dr Grace in 2023

who said that “[School Y] offers residential provision ...that would enable

[Ali] to learn and practise all essential skills of daily living .. this would enable him to develop engagement in the world around him.“

14.

This statement does not examine what SEP [Ali] requires that cannot be delivered during the school day and why that could only be delivered through a 52 week residential placement. An extended day curriculum may be linked with a residential placement, but not necessarily so. Dr Grace appears to conflate the two issues. Dr Grace was not present to expand upon her report. Furthermore, the witnesses from [School Y] also failed to answer that question.

15.

Ms Hale submitted that an extended day curriculum was necessary for consistency in approach and further opportunities for over-learning. Ms Hale submitted that the activities after the normal school day amounted to SEP which the parents could not be expected to deliver in the home environment.

16.

No witness disputed that [Ali] would benefit from a consistent approach, but this is not necessarily an educational need that is required to be met beyond the school day in a residential setting. We were not persuaded that [School Y] was providing a structured educational programme outside of the normal school hours. It is also important to note that [Ali] is only ten years’ old; he is not yet preparing for adulthood and independent living. We considered that his age and stage in life was relevant to our considerations.

17.

We also accept that [Ali] may regress during periods away from school such as the holidays, but even if he does, we heard evidence that he “catches up.” Looking at the wider evidence, he was on a general trajectory of progress and any regression must fairly be seen in that light.

18.

Accordingly we do not find that an extended day curriculum or a

residential placement of any duration is reasonably required.”

Issue 4 as identified by the Tribunal at the start of its decision concerned placement. In the body of the decision, the Tribunal incorrectly labels this “Issue 3”. What the Tribunal says about placement is as follows:-

“1.

As the LA accept that [School Y] is a suitable school, we agree with that assessment and do not need to set out the evidence in support of that conclusion.

2.

In addition to the statements in the bundle, we heard evidence from [Ms J] as to why [School X] is a suitable placement for [Ali].

3.

We found [Ms J] to be a credible witness and we accepted her evidence from which we find that [School X] is a suitable school for the following reasons:

a.

It is a special school for children with complex needs and offers small

classes and an appropriate curriculum.

b.

[Ali] was making progress at [School X] across all subjects and there were no concerns about his progress.

c.

[Ms J] thought an extended day was no doubt useful for him but was not required. The school offers a curriculum that incudes independence and social skills.

d.

[Ali] was settled at [School X] and was happy to attend.

e.

[Ali] would be returning to a class of pupils with very similar abilities and needs and if his needs have changed, he will be moved to a more suitable class.

f.

Ms Trinner, the SLT will draft some social stories to try and ease [Ali] back into the school.

g.

The bathroom team will help to develop [Ali’s] toileting independence and other self-care issues that he has at school.

h.

As there is a cost difference of in excess of £400,000 between [School X] and [School Y], we must conclude that placing [Ali] at [School Y] would amount to the inefficient use of the LA’s resources and therefore name [School X] in Section I.

The Tribunal then went on to consider the evidence in relation to social care and made recommendations for the local authority to arrange 100 hours’ care from Mencap, 18 overnight respites, 1 hour’s care at home each morning and each evening 52 weeks of the year and 8 hours per week additional care during the holidays.

(The appellants say that it has subsequently transpired that the Mencap provision is not available, but I refused permission to appeal in relation to that on the basis that it should first be raised with the First-tier Tribunal as an application to review the First-tier Tribunal decision on the basis of a change of circumstances. As I have for the reasons set out below now allowed this appeal and set aside the Tribunal’s decision, this issue in relation to the availability of the Mencap support can be considered at the remitted hearing.)