Tribunal Judge Rules on Education Plans for Children with Special Needs

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Elisa Jenkins

Solicitor, Education Law

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Education lawyers say the judgment could have far reaching implications for other local authorities

An education tribunal judge has ruled that a local authority cannot stop maintaining an Education, Health and Care Plan (EHCP) for a young person with special educational needs based on whether the level of educational attainment justifies the provision.

In the case of EM v Royal Borough of Windsor and Maidenhead (UA-2023-001548-HS), the Upper Tribunal overturned a decision by the First-tier Tribunal (FtT) to cease maintaining the EHCP for EM, a 17-year-old with Autism Spectrum Disorder (ASD) and speech and language difficulties.

The local authority had argued that EM, who attended Manor Green School, a special school, from 2013 to 2022, could no longer benefit from formal education and would be better supported in an adult care environment.

Despite an annual review in 2020 indicating that the school could no longer meet his needs, EM continued to receive education there until the local authority decided in May 2022 to stop his EHCP, arguing that no other educational placement could support him due to his complex behaviours.

EM's mother appealed the decision with the FtT, which agreed with the local authority, stating that EM's progress was minimal and his needs should be managed by adult care services.

However, the family then instructed Elisa Jenkins from Simpson Millar’s education team to further appeal the decision at the Upper Tribunal. The judgment, handed down this week, found that the FtT had misapplied the legal test for ceasing an EHCP and failed to provide adequate reasons for its decision.

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Judge Price's Ruling and Implications

Judge Price of the Upper Tribunal ruled that the test for ceasing an EHCP – a legally binding document which outlines what educational provision a child or young person needs - is one of necessity.

The judge emphasised that a certain level of educational attainment is not required to justify an EHCP, and that the decision must be based on whether the special educational provision is necessary for the individual’s needs.

The Tribunal further criticised the FtT’s reasoning, which suggested that because significant support was needed for minimal progress, an EHCP was no longer necessary. The judge clarified that the potential for future learning, regardless of the level of progress, is a relevant factor.

The case has been sent back to the FtT to reconsider whether the EHCP should continue until the next annual review.

Commenting on the outcome, Elisa Jenkins from Simpson Millar said the decision has implications for local authorities across the country because it reinforces that the decision to cease an EHCP cannot be based on the difficulty of meeting a child's needs or the perceived cost-effectiveness of the provision.

Instead, each case must be considered on its individual merits, ensuring that the rights of children with special educational needs are upheld.

 

Context and Expert Commentary

The judgment also coincides with an investigation from the BBC which found that Councils in England are forecasting a massive £1bn shortfall in budgets for supporting children with special educational needs. A deficit that Elisa says could have ‘devastating consequences’ for families across the country.

She added: “This is a significant ruling that highlights the duty of local authorities to provide for the educational needs of children with EHCPs, regardless of the undeniable challenges involved in some cases. It highlights the principle that the provision of an EHCP should be based on the individual needs of the child, not on a cost-benefit analysis or whether provision should be provided at all.

“We are pleased to have secured such a positive outcome for the family, as it provides reassurance for EM’s future after what has been a difficult and challenging time.”

Ollie Persey of Garden Court Chambers, EM's barrister, added: "This decision provides helpful guidance on the important issue of when a local authority can lawfully cease to maintain an EHCP.  I am really pleased for our client, and I hope that these proceedings lead to special educational provision being put in place."

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References

www.simpsonmillar.co.uk. (n.d.). Elisa Jenkins | Education Law Solicitor | Simpson Millar. [online] Available at: https://www.simpsonmillar.co.uk/our-people/elisa-jenkins/

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Elisa Jenkins

Solicitor, Education Law

Areas of Expertise:
Education Law

Elisa is a Solicitor working with our Education Law team here at Simpson Millar. She joined Simpson Millar in April 2023 and is based in our London team.

Elisa’s first language is Welsh, and second language is English and she has played a vital role throughout her career in achieving the best outcomes for families and children in England and Wales in issues surrounding Education Law.

She assists families with a range of matters relating to Education Law to make sure that parents can achieve the best outcomes for their child. She has experience helping parents appeal their child’s exclusion from school, admissions appeals and matters relating to children with Special Educational Needs.

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