The parents of two sisters with significant disabilities appealed to the First-tier Tribunal against the special educational needs provision made for the sisters in the education, health and care plans prepared for them by the local authority pursuant to the Children and Families Act 2014. The tribunal decided that provision in a school would be inappropriate and thus, pursuant to section 61 of the 2014 Act, that special educational provision should be made for “education otherwise that in a school” under section F of the plans, in accordance with regulation 12(1)(f) of the Special Educational Needs and Disability Regulations 2014. It further decided that, accordingly, no school or other institution, or type of either, could be named in section I of the plans pursuant to regulation 12(1)(i). On appeal by the local authority, the central issue was whether the tribunal was entitled as a matter of law to leave section I of the plans blank, contrary to what had been held in an earlier decision of the Upper Tribunal. Ultimately the parties agreed that the earlier Upper Tribunal decision had been wrongly decided on that point but, given its importance, they requested a decision on the matter.
On the appeal—
Held, appeal dismissed. Having regard to sections 39(5) and 40(2) of the Children and Families Act 2014, the duty imposed on a local authority was to secure that the education, health and care plan named a school or other institution, or type thereof, which the local authority thought would be appropriate for the child or young person. If the local authority thought that no school or other institution, or type of either, would be appropriate for the child, then the “naming” duty under those sections, and thus in section I of the plan, could not as a matter of law arise. In such circumstances, section 61 of the 2014 Act made the provision that sections 29(5) and 40(2) deliberately left out of account, namely the special education provision that could not be made appropriately in any (and not just in one particular) school or other institution, or type of either. Education otherwise than in a school, pursuant to section 61, could not be specified in section I of a plan, since that section was concerned with just the type of school or institution that had to be inappropriate in order for section 61 to apply. Accordingly, there being no absolute requirement that all education, health and care plans had to specify a school or other institution, or type thereof, in section I of the plan, the First-tier Tribunal had not erred in law in leaving section I blank (paras 12, 14–16, 18, 23).
The appeal was determined on written submissions.