Upper Tribunal provides important guidance on the First Tier Tribunal’s role in appeals related to Education, Health and Care Plans

Appealing your child’s Education, Health, and Care (EHC) plan is a complex process, especially if you disagree with the local authority as to which school should be named in Section I of the plan. A recent Upper Tribunal decision confirms the role of the First Tier Tribunal (FTT) in EHC plan appeals, particularly when it comes to the application of section 39(4) of the Children and Families Act 2014.

The law: What you need to know

Section 38(3) of the Children and Families Act 2014 sets out the types of schools or other institutions that a parent or young person can name in Section I of an EHC plan. The following are the types of schools or other institutions set out in section 38(3):

a) A maintained school;
b) A maintained nursery school;
c) An academy;
d) An institution within the further education sector in England;
e) A non-maintained special school;
f) An institution approved by the Secretary of State under section 41 of the Children and Families Act 2014.

Section 39(4) of the Children and Families Act 2014 states that the local authority must name the school or institution set out in section 38(3) unless:

a) The school or other institution requested is unsuitable for the age, ability, aptitude, and special educational needs of the child or young person concerned; or
b) Attendance of the child or young person would be incompatible with:
i. The provision of efficient education for others; or
ii. The efficient use of resources.

This case concerned the application of section 39(4)(b)(ii).

Case overview

London Borough of Islington v A Parent: [2024] UKUT 252 (AAC) is an Upper Tribunal decision by Judge Stout on 20 August 2024.

The case concerned an appeal by the London Borough of Islington (‘the local authority’) against the decision by the FTT, which found in favour of the parents of the child (‘C’) in relation to the school named in Section I of C’s EHC plan.

The school of parental preference was a community special school in a neighbouring local authority area, which stated it was oversubscribed. However, the local authority had proposed that C attend a special academy school in the area, which had an available place.

The local authority refused to name the school of parental preference on the basis that it was an inefficient use of the local authority’s resources.

The local authority provided evidence regarding the cost of the preferred placement and brought the headteacher of that school to the hearing as a witness. Further, the local authority provided email and letter evidence from the parent’s preferred school and the neighbouring local authority regarding the costs of the placement at that school, but the neighbouring local authority and the parent’s preferred school refused to provide a witness for the hearing.

The FTT held that the burden of proof was on the local authority to prove the true costs of both placements. It found that the local authority’s evidence was unreliable and, accordingly, rejected it, ordering that the school of parental preference be named in Section I of C’s EHC plan.

The local authority appealed to the Upper Tribunal.

On appeal, the Upper Tribunal held the following:

• Erred in law in placing the burden of proof on the local authority
  The FTT erred in law by placing the burden of proof on the local authority to demonstrate that naming the parents' preferred school would be incompatible with the efficient use of resources. The Upper Tribunal confirmed that the responsibility of the FTT is to ‘stand in the local authority’s shoes’ in applying section 39(4) of the Children and Families Act 2014.
• Failure to exercise its case management powers to address concerns 
  The FTT failed to exercise (or at least to consider exercising) its case management powers to obtain the necessary evidence on costs for both placements at the point it decided that the evidence it had been supplied with was ‘unreliable’. The FTT, despite its concerns about the reliability of the local authority’s evidence, did not raise these concerns during the hearing. The FTT also failed to request further evidence or summon a witness from the neighbouring local authority or the school of parental preference.
• Failure to adjourn proceedings
  The FTT failed to consider its case management powers in accordance with the overriding objective to adjourn proceedings in order to obtain the necessary evidence. It was acknowledged that the local authority had ample time to obtain the necessary evidence. However, the hearing took place in March 2024 and concerned C’s placement for September 2024, meaning there was sufficient time for further evidence to be obtained with no significant detriment to either party if the proceedings were adjourned.

The case was remitted to the FTT for re-determination by a fresh tribunal. As the FTT had declined to make any findings about the suitability of the school preferred by the local authority, the Upper Tribunal could not remake the appeal.

In summary

The Upper Tribunal’s decision confirms that the FTT is responsible for using its investigative powers when necessary. The FTT must ensure it has all the necessary evidence to make a fair and informed decision, and if not, it should consider delaying the case to obtain that evidence. If it fails to do so, it might not be fulfilling its duty as outlined in the Tribunal Procedure Rules.

Why this matters for parents

This ruling reinforces the importance of understanding both the legal framework and the procedural aspects involved when challenging decisions about your child’s EHC plan. If you are unsure about the process or need help ensuring that the right school is named for your child, Birkett Long has a dedicated team ready to assist.