Cases that shape the future of SEND
As well as playing a pivotal role in an individual child’s and their families’ lives, cases that are heard in front of a tribunal pave the way for future case law, which is why we’ve rounded up the latest rulings as heard in the UK courts.
What is the role of OFSTED reports in Special Educational Needs and Disabilities Tribunal Cases?
Being a parent means you sometimes have to challenge decisions made on your child’s behalf to make sure they have access to the best possible education to meet their needs. In the case of EL and JB v the Tribunal and Surrey CC*, the parents appealed a decision the First Tier Tribunal made about their daughter’s EHC Plan. The Tribunal made their decision on 9 August 2019 and named a school on her plan that they felt was not able to meet their daughter’s needs.
The parents were dissatisfied with the decision, particularly with the school named in Section I of the EHCP. In making their decision the Tribunal took into account a positive OFSTED report relating to the local authority’s choice of school.
However, in September (within one month of the Tribunal decision) that same school received a new OFSTED report. OFSTED assessed the school as requiring improvement both overall and in respect of:
• effectiveness of leadership and management
• quality of teaching, learning and assessment
• personal development, behaviour and welfare
• outcomes for pupils.
The parents requested a review of the decision in light of the new report.
The First Tier Tribunal refused to review the decision but the parents decided to appeal again, this time to the Upper Tribunal. The Upper Tribunal found that the initial decision should be reviewed in order to enable the new OFSTED assessment to be taken into account.
This case highlights that OFSTED reports are an important factor that should be taken into account by local authorities and the Tribunal when assessing the suitability of a particular school.
*
R (EL and JB) v Frist-tier Tribunal and Surrey County Council (JR) [2020] UKUT 4 (AAC)
Can meetings between a parent and teacher be considered educational provision?
In the case of HN v South Tyneside Council, a father, made an appeal against a First-Tier Tribunal decision preventing him from taking his son’s case forward on the basis that the tribunal felt it had no reasonable prospects of success.
The appeal challenged whether the father had a reasonable prospect of showing that the two forms of provision he was requesting counted as special educational provision. The father was asking to have face to face contact with the school twice a term and to be able to contact the school on the phone whenever there was an urgent need to do so.
In considering the case, the Upper Tribunal decided that meetings between a parent and a teacher could, based on these circumstances, count as special educational provision. For example, this may be the case if the child’s special educational needs, resulting from their disabilities or learning difficulties, were such that they needed very close and regular communication between the child’s parents and class teacher. That could be having daily discussions about strategies the parents could put in place at home or on the journey to school, in order to enable the child to access their education.
However, the specific appeal was rejected in the end on the basis that in this particular case there was no evidence showing why the meetings were needed.
Meetings between parents and teachers can therefore be special educational provision that should be included in Section F of an Education, Health and Care Plan if there is evidence to show these are needed on account of the particular needs of the child.
*
HN v South Tyneside Council (SEND) [2019] UKUT 280 (AAC)
Should transport be provided to young adults with an Education, Health and Care Plan on every day they are in education?
A report* by the local government and the Social Care Ombudsman explored this idea when a father complained about the Council’s decision to provide home to college transport for his adult learner son (Mr A) for four days a week instead of five days, even when the education setting his son attends is named in Section I of his EHCP.
Mr A attends college five days a week and his college is named in Section I of his EHCP. Mr X felt that the Council considered irrelevant information when it made its decision to only provide transport for 4 out of the 5 days his son went to college.
During the 2017/18 academic year the Council had agreed to provide home to college transport 4 days a week and Mr A’s parents provided transport on the fifth day. This was all agreed on the basis that the parents could take their son to school one day a week because of their working arrangements. At the start of the next academic year, Mr and Mrs X applied for home to college transport for five days a week as Mrs X’s work commitments had changed meaning she couldn’t provide transport on the fifth day.
The Council considered the request but declined it, saying the decision was made in line with the criteria in their post-19 transport policy 2017, which states that the expectation is for families to take responsibility for transport to college and that transport would only be provided in the most ‘exceptional’ cases.
The Appeal Panel decided it wasn’t necessary to provide the additional day of free transport and noted that both parents had flexible working arrangements which mean they could provide the transport for the additional one day a week.
Mr and Mrs X appealed to the Local Government and Social Care Ombudsman on the following grounds:
• Mr A was not yet an independent traveller;
• Mrs X wasn’t able to provide transport one day a week; and
• There was no duty on the parents to provide transport assistance.
When considering the case the Ombudsman found that the council’s policy set the bar higher than the actual legal test. Each council has a statutory duty to provide transport to post-19 learners if it is considered ‘necessary’, not exceptional which was the criteria set out in the council’s own policy.
This is based on Section 508F of the Education Act 1996 which requires local authorities to make transport arrangements they consider “necessary” to enable “relevant” young adults to get to the education setting (in this case the college) that the local authority secured them a place in. A Relevant young adult is an adult who is under 25 years old who has an EHC plan. The council’s policy was therefore unlawful as it had additional criteria in place for a family to access transport provision, in addition to what the law required.
The Ombudsman made a number of recommendations including that they apologise to the family, and review their post 16 (to 25) transport policy. The new policy should be clear that the Council has a statutory duty to provide transport to post-19 learners if it is considered ‘necessary’, not exceptional.
*Report by the Local Government and Social Care Ombudsman – Investigation into a complaint against East Sussex County Council (ref number: 18 012 500)
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