EHCPs - guidance from the Upper Tribunal about the EHC needs assessment and higher education

The Royal Borough of Kensington & Chelsea v GG (SEN) [2017] UKUT 141 (AAC)

The case concerns an appeal by ‘G’ against the local authority’s (LA) decision to refuse to carry out an EHC needs assessment under s36 (3) Children and Families Act 2014 (CFA). The First-tier Tribunal (FTT) disallowed the appeal because G was studying a course provided by the Open University. G appealed to the Upper Tribunal (UT) which found that the LA’s decision was flawed because it mistakenly concluded that G could not have rights under the CFA as he was pursuing courses that would lead to attaining qualifications by a higher education institution. The UT held that it was an error to assume such courses had to be a form of higher education without considering whether they fell within the definition of ‘higher education’ under the Education Reform Act 1998, Schedule 6.

The UT re-made the decision of the FTT allowing G’s appeal against the LA’s decision to refusal to assess and ordering the LA to arrange the assessment.

The case gives a helpful approach for everyone approaching the issue of whether or not a course or a placement falls under the protection of an EHCP and in what circumstances an EHC needs assessment may be required.

Background

Unlike its predecessor legislation (which could provide support up to 19 years), support under Part 3 of the CFA was extended to include young adults under 25 years. By extending provision, the CFA also included ‘further education’ and ‘post-16 institutions’ – but not higher education. The question is how does the CFA apply when a young adult is studying a course provided by a higher education establishment?

In this case G was studying various Open University modules at an independent placement. The LA decided that the Open University fell within the higher education sector and outside the scope of the CFA. The FTT allowed G’s appeal and the LA was ordered to carry out an assessment. By the time of the UT hearing both parties agreed that the FTT’s decision had to be set aside due to multiple errors of law and the UT was invited to give guidance on the application of the CFA to higher education.

The Appeal

G was 22 years old when he asked his LA to carry out an EHC needs assessment under s36 CFA. His application set out the following reasons:

• He had diagnoses of autism, OCD and selective mutism;
• He had attended an independent placement for 20 hours per week fully funded by his parents where he was taught 1:1 with a qualified teacher studying maths, computer programming and literacy skills. He was also working on his communication skills;
• He received cognitive behaviour therapy for one hour each week for his OCD;
• He needed to continue with his education in a specialist setting that could offer speech and language therapy and psychological input for his OCD, both of which he felt would not be available without an EHCP;
• He needed to be educated in a small specialist setting that could offer small class sizes with a high staff to pupil ratio and where the curriculum would support young adults with autism and social communication difficulties. He also needed to develop his independent living skills.

The special placement attended by G was not a college establishment in the usual sense i.e. it was not a registered independent school, a post-16 institution approved by the Secretary of State under s41 CFA, nor an institution within the further education sector. It was described as a 1:1 tutorial college.

G received 6 hours per week tuition in computer programming and whilst he was working a post A-Level standard, he was not pursuing an accredited course in programming. G had enrolled in Open University modules but he had to drop these when it became clear he would be unable to complete them; he registered and re-registered for more basic courses.

The LA refused an EHC needs assessment because G was studying at a level that no longer required and EHCP. G appealed to the FTT stating that:

• Despite his average cognitive levels, he had significantly underachieved in his public exams;
• An EHC needs assessment was necessary due to his very severe and complex difficulties which had a profound impact on his ability to access a curriculum and due to his limited educational progress;
• He was likely to need specialist teaching, therapeutic and behavioural input delivered on a multi-agency basis through an EHCP. Without this, G’s future employment chances were impaired.

The LAs response was that G had enrolled on an Open University course at entry level and that higher education was excluded from the provision of the CFA. It argued that it was unclear what course(s) G wanted to pursue and that, in any case, there was already a clear understanding of G’s difficulties and provision that he needed.

At this point in the case, the matter was heard by the FTT – by no less than three FTT Judges.  Several errors were made on points of law. It was agreed that the UT would give guidance on dealing withy EHC cases with a higher education dimension.

Upper Tribunal Guidance on Higher Education

Below are the key points:

1. The LA’s arguments concerns the definition of ‘special educational provision’ (SEP) in s21 CFA:
   • The definition of SEP calls for a comparison to be made between the type of educational provision suitable for a young person with that generally made for young people of the same age by English mainstream post-16 institutions;
   • The comparison is the provision made generally in England – i.e. not the provision made in a LA’s area and not in the provision currently made for the young person. LAs and the FTT must exercise professional judgment in deciding the typical nature of pro;
   • In deciding the comparison issue, LAs and the FTT must exercise professional judgment to decide the typical nature of provision for a particular age group. Normally, local provision can be taken as being typical of the provision made generally in England. The young adult or his/her representative can argue otherwise with cogent evidence.
   • Once the question of what is ‘typical provision’ has been decided, the next question is whether the provision required by the young person is additional to or different from that made generally in England for that age group.
   • The question of SEP can be satisfied even if the young person is currently enrolled on higher education course or is considering pursuing such a course. In many cases, however, this will rule out the need for an EHCP under s36 CFA but there may be instances where it will not e.g. where the young person enrols on such a course but for health or other reasons finds that they are unable to cope with higher education so that they may, in the near future, want to pursue a less demanding course of further education instead.
2. Higher education is excluded from the support offered by Part 3 CFA. This is because s83 (4) excludes references to higher education from the definition of ‘education’ for the purposes of the CFA. However, Judge Mitchell said ‘I see no reason why preparing a person for the requirements of HE should be left out of account. Such an activity should amount to a form of education that is not itself HE’.
3. A higher education institution or other institution that only provides higher education cannot be named in Section I of an EHCP as it falls outside the category of institutions permitted to be named on an EHCP. Higher education placements do not fall within the definition of post-16 institutions under s83 (2) CFA.
4. The test for deciding whether to carry out an EHC needs assessment in s36 (3) CFA is whether ‘it may be necessary for special educational provision to be made for the …young person in accordance with an EHC plan’. If the young person is seeking higher education, then the necessity element of the test will not be satisfied and the EHC needs assessment will be refused.
5. The question then is what is higher education? S83 (4) CFA provides that Part 3 of CFA does not include higher education. The exclusion does not refer to education provided by higher education institutions. In the view of Judge Mitchell, the exclusion refers to higher education as defined in schedule 6 Education Reform Act 1988. If a course falls outside the schedule 6 list, then it is not a form of higher education.
6. Schedule 6 includes first degree courses and other courses of commensurate or greater complexity. So, BTec and A’ Level courses would be further education; HNDs and above would be higher education.
7. Judge Mitchell said that it is right for a LA to consider the placement sought when deciding whether on the necessity of an EHC needs assessment. But importantly, he also said the following at paragraphs 81 and 82:

‘…it is a young person’s prerogative to be uncertain about what he wishes to do with his life. One cannot expect all young persons to present with clearly formed plans about their educational future. A vague aspiration to pursue HE or the inclusion of HE amongst the educational options that a young person is thinking of pursuing should not be seized upon as a reason to exclude a young person from the CFA 2014 system of entitlements. In this respect, local authorities should bear in mind their general obligations under section 19 and 32 CFA 2014. They may need to explain to a young person that, if he wishes to pursue HE, the CFA 2014 cannot operate to support him through a course of HE. The second point for local authorities to bear in mind is that a course is not necessarily a HE course because it is provided by, or under arrangement with, an institution with, an institution within the HE sector. What matters is whether the course falls within the list specific in Schedule 6 to ERA 1998 [sic: read 1988].’

Local authorities may want to take note of this advice when considering whether or not to carry out EHC needs assessments.

The question of whether the independent education provider (not a registered independent school, a post-16 institution approved by the Secretary of State under s41 CFA, nor an institution within the further education sector) can be named in the EHCP, should the LA decide to make an EHCP following assessment, is yet to be resolved.

You can read the whole case here.