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Judge orders re-hearing of EHC Plan case after First-tier Tribunal failed to consider all the evidence

The First-Tier Tribunal (FTT) should not have reached a decision on a child’s Education, Health and Care (EHC) plan without considering all the evidence, the Upper Tribunal Administrative Appeals Chamber has ruled.

In GA and JA v Wirral Metropolitan Borough Council (SEN) (Special educational needs - failure to prepare an EHC plan under Children & Families Act 2014) [2020] UKUT 24 Upper Tribunal Judge Stewart Wright said there had been an error on a material point of law and that the case must be re-heard by a differently constituted FTT.

This case concerned a girl then aged 11 whose parents appealed to the tribunal under section 51(2)(a) of the Children and Families Act 2014 against the decision of Wirral Metropolitan Borough Council not to secure an EHC needs assessment for her.

It was accepted that she had special needs; at issue was whether those could be met within a mainstream school and the tribunal decided an EHC plan was not needed.

Judge Wright said the First-Tier Tribunal had failed to properly consider potentially relevant evidence in a report from a child psychologist

He said: “The failure of the First-Tier Tribunal to have regard to potentially relevant evidence on which a party before it was seeking to rely arguably amounts to an error of law.

“I note that when refusing permission to appeal [FTT] Judge Plimmer took the view that the 14 July 2017 report of [the psychologist] would have made no material difference to the First-Tier Tribunal’s decision.”

But he said Judge Plimmer gave no reasons why she considered this report would make no material difference to whether an EHC needs assessment ought to have been secured.

Judge Wright said the FTT referred to rule 19 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 when it was in fact rule 23 which applied.

It then proceeded on a misunderstanding as to which tests to apply under rule 23.

Judge Wright said he was also satisfied that the FTT gave no proper consideration to whether it could properly absolve itself of the duty to hold an oral hearing of the appeal before it.

Mark Smulian