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Council fails in Court of Appeal challenge over special educational needs provision

The Court of Appeal has for the first time considered the meaning of ‘necessary’ in section 37 of the Children and Families Act 2014.

The case of Nottinghamshire County Council v SF And GD (Rev 1) [2020] EWCA Civ 226 involved an appeal by Nottinghamshire County Council against an order made by Upper Tribunal Judge Wright in August 2019 which upheld a decision of the deputy president of the First-Tier Tribunal (FTT) in December 2018 concerning the special educational needs of a child.

Giving the judgment of the court, the Senior President of Tribunals, Sir Ernest Ryder, said: “Although the appeal is pursued as a question of law, the answer in this particular case is a question of fact.”

He explained: “The error of law that is said to have been made concerned the FTT's decision that it was necessary for special educational provision to be made for a child known in the proceedings as HD.”

The council argued that the mainstream school HD attended had successfully identified his needs and was meeting them.

HD, a boy now aged seven has autism spectrum disorder, dyspraxia and hypermobility and has difficulties with sleeping, asthma, eczema and is being investigated for attention deficit hyperactivity disorder.

His parents had appealed to the FTT against Nottinghamshire’s decision. The council submitted that it cannot be ‘necessary' for to have an EHC plan for a child who is making progress at a school which has successfully identified their needs and is providing appropriate special educational provision.

To say otherwise would, the council argued, go against the fact that most children being given special educational provision do not have an EHC plan.

There were three grounds of appeal: the tribunals were wrong in their in their construction of what is ‘necessary’; that they wrongly applied the test in section 37(1) CFA 2014 to the facts of the case; and wrongly applied the Code of Practice.

Nottinghamshire argued that the FTT’s value judgment that HD's needs may change in the future “is no more than a statement of the obvious that will apply in every case”.

Sir Ernest said: “As the submissions to this court developed, it became clear that the question in this appeal is not the construction of the word 'necessary' in section 37(1) CFA 2014.”

He added: “‘Necessary’ is a word in common use and its plain meaning has caused no difficulty in the tribunal. The function of the FTT in these cases is to find facts and to exercise an evaluative judgment by using its specialist expertise about whether an EHC plan is necessary. That is a deduction from the facts and it will depend on the nature and extent of the provision required for the child concerned. It is a fact specific conclusion.”

The question was whether a reasonable tribunal could conclude that an EHC plan was necessary for HD on the facts of this case.

He cited the Supreme Court ruling in Re B (a child) (care order: proportionality: criterion for review) [2013] UKSC 33, [2013] 2 FLR 1075 that where a trial judge has reached a conclusion on the primary facts, an appellate tribunal will interfere with it only where there was no evidence to support this or the evidence was misunderstood or the conclusion was one no reasonable judge could have reached.

Sir Ernest rejected Nottinghamshire’s appeal, since “the elements identified [by the FTT] may well have been marginal and another court or tribunal may have come to a different judgment on the facts but that is not a sufficient reason for this court to interfere on a second appeal”.

Mark Smulian