Upper Tribunal sets aside First-tier Tribunal’s decision saying failure to take into
account the feelings of a 7-year-old boy was an error of law
“... I note that, whereas 7-year-olds may not, in circumstances of relative family harmony, have “views” and “wishes” very different from those of their parents (due to their relative immaturity), “feelings” are something typical 7-year-olds do have, very much in their own right; the statutory language, by expressly referring to “feelings”, requires that they be identified and considered …” (Paragraph 19 of the decision)
Background
This decision of the Upper Tribunal (Administrative Appeals Chamber) concerns an appeal against a January 2024 decision of the First-tier Tribunal (Special Educational Needs and Disability) concerning a specific school being named in an education health and care plan (EHC plan) for a 7-year-old boy, referred to by the Upper Tribunal as ‘S’.
S has autism spectrum disorder (ASD) with associated sensory processing difficulties and development coordination disorder (DCD), and symptoms of mild cerebral visual impairment (CVI).
At the time of both tribunal hearings, S was not attending school and was receiving education at home and had previously attended weekly ‘enrichment sessions’ at the school requested by his parents to be named in his EHC plan (school Y).
The First-tier Tribunal’s decision
One of the sections of S’s EHC plan challenged by his parents before the First-tier Tribunal was section I which concerned the specific school to be attended by S. The local authority had identified school X, a maintained mainstream primary school with a specially resourced provision for pupils with ASD, while S’s parents had requested school Y, a non-maintained special school which S had been attending once a week. S’s parents argued that school X was inappropriate for S.
The First-tier Tribunal dismissed S’s parents’ appeal against school X being named in S’s EHC plan and justified it as follows: both school X and Y were suitable and could meet S’s needs; choosing school Y would be incompatible with the efficient use of resources; taking S’s and his parents’ views into account, the difference in cost between the two schools meant that S attending school Y would not be compatible with the avoidance of unreasonable public expenditure.
S’s wishes and feelings about his preferred school
During the hearing before the First-tier Tribunal, it was shared that S wished to attend school Y and that he enjoyed the ‘enrichments sessions’ he attended there. In a document prepared by his parents, it was said that “S loved school Y but hated the mainstream infant school he had attended”, that he was “extremely upset” about going to the latter school and said he “hated his life” and hated the school.
During the First-tier Tribunal hearing, neither S nor his parents were asked about his feelings.
As part of the appeal to the Upper Tribunal, S’s parents sent a letter from a registrar in developmental paediatrics at an NHS hospital (dated February 2024) stating that “S was extremely anxious and stressed regarding mainstream school environments; that he had severe trauma from his last mainstream placement; … that S said that if he was forced to go to school X, he would harm himself; that S would not go out and constantly stayed in his room where he felt safe; that [S’s parents] have to closely monitor S’s diet as he refused to eat; that S has cerebral visual impairment which makes him extremely anxious regarding the surrounding environment and the amount of support he needs; and that S has pathological demand avoidance which makes him refrain from doing usual daily activities even the necessary ones” [para 8 of the UT decision]. In the letter, the registrar “strongly recommended that S’s mental health difficulties, his autism, and his pathological demand avoidance are all kept in mind when discussing his educational options”.
The appeal before the Upper Tribunal
S’s parents appealed against the decision of the First-tier Tribunal on the basis of S’s views and his opposition to attending school X, and the failure by the First-tier Tribunal to consider S’s views and ask S, or them, about his feelings.
The Upper Tribunal had before it the question of whether the First-tier Tribunal erred in law in not sufficiently taking into account S’s views, wishes and feelings in concluding that school X was appropriate for S.
In response to the appeal, the local authority argued that the lower tribunal did have sufficient regard to S’s views, wishes and feelings and that, given S’s age, “it was reasonable for S’s views to have been gathered by experts, and by … [his parents] [prior to the hearing] …” (para 10 of the decision). The local authority also raised the point of the child’s views not being determinative according to the law. Further, it argued that “S was not yet sufficiently mature to fully understand that his transition to school X would be managed carefully and sensitively, at a pace he would not find overwhelming”, and that “he was not mature enough to understand that he would be attending school X’s SEN unit (which was quite different to attending a mainstream class at the school)” (para 10e of the decision). The local authority also shared a letter from a specialist practitioner at an NHS hospital child and adolescent mental health service in which S’s parents were informed that S’s sense of isolation was attributable to him being out of school and not having enough social interaction.
S’s parents argued that the First-tier Tribunal was under a legal duty to consider S’s views but did not have this relevant information before it, and that the local authority failed in its duty to provide S’s views to the tribunal. S’s parents argued that, considering the strength of S’s reaction to the local authority’s decision to name school X in his EHC plan, his view should have been seen as material to the decision.
The legal framework
Children and Families Act 2014
Section 19 Children and Families Act 2014 states:
In exercising a function under this Part [i.e. Part III: Children and young people in England with special educational needs or disabilities] in the case of a child or young person, a local authority in England must have regard to the following matters in particular—
(a) the views, wishes and feelings of the child and his or her parent, or the young person;
(b) the importance of the child and his or her 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 his or her 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 his or her parent, or the young person, in order to facilitate the development of the child or young person and to help him or her achieve the best possible educational and other outcomes.
Section 39(3)-(4) Children and Families Act 2014 requires that a local authority secures that the requested school is named in the EHC plan unless:
(a) the school or other institution requested is unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or
(b) the attendance of the child or young person at the requested school or other institution would be incompatible with—
(i) the provision of efficient education for others, or
(ii) the efficient use of resources.
The Special Educational Needs and Disability Regulations 2014
Regulation 7 requires that, when securing an EHC needs assessment, every local authority must:
(a) consult the child and the child's parent, or the young person and take into account their views, wishes and feelings;
(b) consider any information provided to the local authority by or at the request of the child, the child's parent or the young person;
(c) consider the information and advice obtained in accordance with regulation 6(1);
(d) engage the child and the child's parent, or the young person and ensure they are able to participate in decisions; and
(e) minimise disruption for the child, the child's parent, the young person and their family.
Regulation 11 requires that, in preparing an EHC plan for a child, the local authorities must:
(a) take into account the evidence received when securing the EHC needs assessment [which therefore includes the child’s or young person’s views, wishes and feelings]; and
(b) consider how best to achieve the outcomes to be sought for the child or young person.
Regulation 12 specifies what must be separately set out in an EHC plan by the responsible local authority. The prescribed information includes:
- the views, interests and aspirations of the child and their parents or the young person (section A); and
- the name of the school, maintained nursery school, post-16 institution or other institution to be attended by the child or young person and the type of that institution or, where the name of a school or other institution is not specified in the EHC plan, the type of school or other institution to be attended by the child or young person (section I).
Education Act 1996 Section 9 [‘Pupils to be educated in accordance with parents’ wishes’] states: In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State and local authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.
Relevant case law
In S v Worcestershire CC (SEN) [2017] UKUT 0092 (AAC), considering duties under section 19 Children and Families Act 2014, the Upper Tribunal concluded that section 19 obligations do apply to the First-tier Tribunal, that section 19 duties “are designed for the benefit of specific children and young persons” [para 70] and that the First-tier Tribunal must act in accordance with the overriding objective of section 19 [para 73].
In M & M v West Sussex CC (SEN) [2018] UKUT 347 (AAC), the Upper Tribunal found that while there is no legislative provision “which expressly requires the First-tier Tribunal to take into account, or have regard to, a child’s views (or views, wishes and feelings) about the subject-matter of an appeal”, such a requirement exists [para 55]. The Upper Tribunal referenced section 19 Children and Families Act 2014, S v Worcestershire CC (SEN) [2017] UKUT 0092 (AAC), regulations 7 and 11 The Special Educational Needs and Disability Regulations 2014, and rule 21(2)(e) of the tribunal’s procedural rules which requires a local authority appeal response to include the views of the child about the issues raised by the proceedings (where the child’s views were not available when the response was submitted, a practice direction requires these be supplied before the final Tribunal hearing).
The Upper Tribunal’s analysis of the First-tier Tribunal’s decision
The Upper Tribunal considered the differences between section 9 Education Act 1996 (Pupils to be educated in accordance with parents’ wishes) and section 19 Children and Families Act 2014 (Local authority functions: supporting and involving children and young people):
“… there is some overlap between [these two provisions], in that both require the views of the parents to be taken into account. But, significantly (in my view) for the facts of this case, there are differences between [them] … even accepting … that, often, the “views” of the parents and the child “tend to be broadly aligned”: first, section 19 [Children and Families Act 2014] extends to taking into account the “feelings” of the child (as well as their “views” and “wishes). I note that, whereas 7-year-olds may not, in circumstances of relative family harmony, have “views” and “wishes” very different from those of their parents (due to their relative immaturity), “feelings” are something typical 7-year-olds do have, very much in their own right; the statutory language, by expressly referring to “feelings”, requires that they be identified and considered … Because the tribunal decision expressly considered section 9 Education Act 1998, but not section 19 [Children and Families Act 2014], it is not clear … that the tribunal had regard to S’s feelings about the appropriateness of school X for him. The [summary of his views in the tribunal’s decision] that deals with S’s “views” focuses on his positive wish to attend school Y; it does not … say anything about his feelings about school X”. (Paragraphs 19-20; emphasis added)
The Upper Tribunal judge addressed the need to consider “the particular circumstances” of the case, including that:
“… the tribunal [documents], it appears, included nothing specifically as to S’s feelings about school X: there is a note … from his parents …, but this records the parents’ (critical) views of the school, rather than S’s feelings about it. There is also a note of S’s views …, including his “hatred” of the mainstream infant school he last attended, but it does not give his views on school X…”. (Paragraph 21b; emphasis added)
“… the tribunal does not seem to have elicited evidence about it from S in the course of his short attendance at the hearing; and yet, as the registrar’s letter indicates, S had very strong feelings on the subject, indeed. It seems to me that the tribunal decision did not, in fact, take these feelings into account; that was an error of law, and a material one, as the strength of feeling was such that it may have had an impact on the decision as to the appropriateness of school X for S”. (Paragraph 23; emphasis added)
Assessing the evidence shared within the letter from the NHS registrar, the Upper Tribunal concluded it was “highly relevant” and that it came from “an impartial and authoritative source”.
It is noteworthy that the Upper Tribunal acknowledged the “inherent difficulty, and sensitivity” of ascertaining a young child’s views, wishes and feelings during a hearing, and suggested that:
“… brief attendance at the hearing … was not the appropriate setting at which to delve into, and potentially expose, negative feelings of this kind. Ideally, the need for evidence of (potentially upsetting) feelings on the part of the child concerned would have been identified earlier in the appeal process and then gathered in a sensitive way with the welfare of the child, as ever, paramount. One cannot be prescriptive about how this is to be done …“. (Paragraph 24; emphasis added)
The Upper Tribunal’s decision
The Upper Tribunal concluded that the error of law was material to the decision relating to the naming of school X in section I of S’s EHC plan and therefore set aside the decision. The issue of school X being named in S’s EHC plan was therefore sent to the First-tier Tribunal for reconsideration.
You can read the full decision here: TM and SM v Liverpool City Council (Special educational needs – special educational provision – naming school) [2024] UKUT 201 (AAC) (11 July 2024)
To learn more about EHC plans, including the relevant law and guidance, we encourage you to read the following issues of our children’s rights legal digest:
# December 2023: Education health and care plans (Local Government Ombudsman decision)
# June 2022: Education health and care plans – statutory timescales (High Court judgment)
# May 2022: Special and alternative educational provision (High Court judgment)
# March 2022: Education health and care plans – maximum duration (Upper Tribunal decision)
