Tribunals: Considering Children’s Views in EHCP Decisions

On 11 July 2024, a decision made by the Upper Tribunal in the case of TM and SM v Liverpool City Council: [2024] UKUT 201 (AAC) has acted as a reminder in relation to the duty on the Local Authority to have regard to the following as set out in Section 19 of the Children and Families Act 2014:

(a) the views, wishes and feelings of the child and their parent or the young person.

(b) the importance of the child and their parent, or the young person, participating as fully as possible in decisions relating to the exercise of the function concerned.

(c) the importance of the child and their parent, or the young person, being provided with the information and support necessary to enable participation in those decisions.

(d) the need to support the child and their parent, or the young person, in order to facilitate the development of the child or young person and to help them achieve the best possible educational and other outcomes.

Case Background

This case involved an appeal against the school named in Section I of Child S’ Education, Health and Care Plan (“EHCP”).

S was a 7 year old boy diagnosed with autism and other difficulties. The First-Tier Tribunal (Special Education Needs and Disability) (FTT), considering the Section I appeal, determined that both parents’ preferred school and the local authority’s preferred school were suitable to meet S’s needs.

The FTT decision was to not name parental preference on the basis that s39(4)(b)(ii) of the Children and Families Act 2014 applied, meaning that there would be an inefficient use of resources if the parental preference was named.

Appeal and New Evidence

Parents lodged an appeal to the Upper Tribunal on the basis that there was post-hearing evidence available that showed how the child had strong feelings against attending the school preferred by the Local Authority and that the FTT had failed to consider the views, wishes and feelings of the child when they were making their decision. It must be noted that S had been attending enrichment sessions at the parents’ preferred school, and so was aware of that setting. The FTT pointed out in the decision how S had expressed views that he enjoys the enrichment sessions; however, there was no consideration of the Local Authority’s preference. 

The post-hearing evidence that was provided was a letter from a registrar in developmental paediatrics at an NHS hospital confirming that S was highly anxious and stressed regarding mainstream school environments and that he had severe trauma from his last mainstream placement and how S had reported he would harm himself if he were forced to go to the Local Authority’s chosen placement.

Upper Tribunal Decision

The Upper Tribunal found that the “new” evidence was admissible. It noted how the FTT decision had omitted any confirmation as to whether Section 19 of the Children and Families Act 2014 had been considered, particularly views relating to the opposition of attending the Local Authority’s preferred placement.

As it could not be inferred that the FTT had considered the child’s views about the appropriateness of the Local Authority’s preferred placement, the FTT had materially erred in law. As such, the Upper Tribunal set aside the decision and remitted it to the FTT for a fresh hearing. 

Principle of Considering Children’s Views

This principle of it being important to consider a child or young person’s views in decision making regarding them has been reiterated in this appeal but has also been confirmed in the case of West Sussex County Council v ND [2010] UKUT 349 (AAC), where it was found that 

“As a general proposition, it must follow that a local authority would be making an error of law if it totally disregarded the express wishes of a child. Likewise, it would be making an error of law if it followed the views of the child regardless of any countervailing indications that pointed to a different conclusion. It must always be a question of the weight that is to be attached to the views of the child. The older the child and the more mature the child, the greater the weight that should be attached to those views.”