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Upper Tribunal examines operation in SEN case of "Recommendations Regulations"

A First Tier Tribunal (FTT) decision in a special educational needs case must stand even though an error in law was made, the Upper Tribunal Administrative Appeals Chamber has ruled.

Judge CG Ward noted the case brought by VS and RS - parents of ‘Kieran’ - against Hampshire County Council was “one of the few at Upper Tribunal level that have so far had occasion to look in any detail at the operation of the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017/1306.

"Whether it is appropriate to regard it as a test case may be disputed, however. The wider context is that the regulations are in force as part of a national trial, which is due to conclude on 31 August 2021. It is understood that consideration will be given to whether to continue the power thereafter and if so on what basis.”

The case concerned 12-year-old Kieran who has autism and attention deficit hyperactivity disorder and challenging behaviours, while his sibling and parents had needs themselves that “contribute to the importance of social care provision to the family’s functioning in dealing with the issues which Kieran faces”.

Kieran’s parents said he needed a waking day curriculum and should attend school S, a non-maintained special school for pupils with an autistic spectrum disorder, on a residential basis.

Hampshire named school G as a day placement, but shortly before the FTT hearing agreed a residential placement at school S because the travelling distance was too great for a day placement, not because it accepted a waking day placement was needed.

The FTT found Kieran did need a waking day curriculum, but the parents applied unsuccessfully for permission to appeal on the basis that the FTT made no proposals or recommendations for his social care provision beyond the October half-term break.

Judge Ward said a public interest arose in this “because the issues were likely to recur in other cases being handled by local authorities or before the FTT” and insights into the legal framework might assist in any review of the trial scheme.

The parents argued there were two possible readings of the FTT’s decision, both of which were unlawful.

On the first reading the FtT recommended social care support until the October 2020 half term, with all social care support ceasing thereafter.

The second reading was that the FtT recommended provision until October 2020 but then deferred to the local authority to decide following a review, which was unlawful for being insufficiently specific.

In VS and RS v Hampshire County Council (Special educational needs) [2021] UKUT 187 (AAC) Judge Ward said: “The second reading of the FTT’s decision would (if clearly stated) have been an entirely permissible position for it to take.

“It was common ground between the parties that some need for social care provision would persist after half-term, but no evidence (no matter how generously the concept of evidence was understood) which would enable its level to be determined.”

The judge said this left the FTT with little option but to recommend in the terms it did and to leave the position after half-term to be decided after a review.

Judge Ward went on: “Considerable difficulty between the parties might have been avoided if the FtT had expressly added to its recommendation that there should be a review at half-term and whatever it felt able to recommend about how that should be carried out.

“The fact that the requirement for specificity, as I have held, plays out differently and less onerously in the context of the Recommendations Regulations does not mean that the content of what the FtT is recommending should not be clearly stated. On the assumption that a review was its intended recommendation, but not stated, the FtT was to that limited extent in error of law.”

If the first reading of the decision was instead the correct one it would have been perverse to conclude there was no need for social care provision after half-term.

“Either way, then, the FTT’s decision was – or would have been – in error of law,” the judge said.

“In either case, I would exercise my discretion not to set the decision aside. Matters have moved on in relation to social care provision and by now an annual review of Kieran’s EHC plan must be due or may have taken place.”

The judge directed that a copy of his decision should be sent to the Department for Education so that the Department is aware of it when there is an evaluation of the Recommendations National Trial.

Mark Smulian