Upper Tribunal Case, Leaving Section I Blank

This is a case I won at the Upper Tribunal in September 2021, NN V Cheshire East Council (SEN): [2021] UKUT 220 (AAC) . It concerns education otherwise than at school [EOTAS] where it is not intended that the child will actually attend school but a school is nevertheless named on the EHCP whether that is for funding purposes or because the LA thinks it is better in some way to be attached to a school or for a school to manage the provision.

NN v Cheshire East builds on and goes further than Derbyshire 2019 which dealt with confusion at the time over whether it was always NECESSARY to name a school. The present case is about whether a school necessarily SHOULD be named, given that it is possible either to name or not name.

The First-tier Tribunal ordered the following words for Section I “Specialist Provision: [the school], Bespoke provision.” The parent took the case to the Upper Tribunal on the basis that the First-tier Tribunal had erred in law by naming a school in Section I.

The Upper Tribunal agreed and ruled that the contents of Section I had not been decided correctly firstly because there had been insufficient consideration of the appropriateness of school ie whether school would ‘not be suitable’ or ‘not be proper’; secondly that it would not be right to name a school where the child would not attend (even with a wide interpretation of “attendance”) and thirdly that it was not legitimate to add further descriptive terms to Section I.

Is School Inappropriate?
At the Upper Tribunal Judge Rowley gave the following guidance for EOTAS cases [see paragraph 47 Summary and guidance page 11] :
“a. The tribunal must consider section 61 CFA 2014. It must separately ask whether it is satisfied that it would be inappropriate for (i) any special educational provision that it has decided is necessary for the child to be made in any school and (ii) any part of the provision to be made in any school.
b. In considering these questions, the tribunal must ask if a school would ‘not be suitable’ or would ‘not be proper’. To do that, it has to take into account all the circumstances of the case. Without being an exhaustive list, those circumstances might include:
i.the child’s background and medical history;
ii. the particular educational needs of the child;
iii. the facilities that can be provided by a school;
iv. the facilities that could be provided other than in a school;
v. the comparative cost of the possible alternatives to the child’s educational provisions, either at school or elsewhere;
vi. the parents’ wishes (although they are not generally determinative); and
vii. any other particular circumstances that apply to a particular child (TM v London Borough of Hounslow (above).
c. If the tribunal is satisfied that it would be inappropriate for any such special educational provision to be made in any school, then Section I must be left blank.”

Attendance at School Named in Section I
In deciding whether it is permissible to name a school the tribunal must consider whether the school will in fact be “attended” by the child, bearing in mind that attendance does not have to be full time and is not limited to the classroom. Attending provision provided by the school at an alternative setting outside a conventional classroom setting still means the child is attending, but NOT where provision is delivered at the child’s home because home is not a setting [see East Sussex 2016 ]

Additional description in Section I
The Upper Tribunal confirmed as per Regulation 12 and following previous case law in East Sussex 2016 and Derbyshire 2019 that what is specified in Section I must be strictly limited to the name/and or the type of the school to be attended.

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What are the implications?
Where a child has an Education Health and Care Plan and there are strong indications that a child will not attend school eg because of something in the child’s background or medical history -including eg the child’s own strong views or levels of anxiety or fatigue, or where there is something particular in the child’s educational needs, then proper consideration of these factors may lead the local authority – and if relevant the tribunal – to conclude that it would be inappropriate for provision to be made in a school. In such cases a school must not be named as the placement in Section I irrespective of whether the local authority wishes the school to deliver an outreach programme or bespoke package of education.

This is a significant ruling because of what may otherwise follow from a school being named in Section I “just to get the funding” but where a child was not expected to attend. This may include the parent being accountable to the school for provision made by the parent during “school hours”; the child being treated as a pupil who should really start attending or joining in with school; or the child being treated as a pupil who cannot be taken off roll without permission.

NB there are other situations where a child with an EHCP does not attend school but is receiving elective home education ie the parents are making their own provision. These are cases where the LA will say that a type of school is suitable but parents have chosen to make their own arrangements. In such a scenario, Section I will NOT be left blank but nor should it say anything about home education because as above the only permissible contents of Section I are the name and/or the type of school.

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