Another appeal exploring EHCPs and young adults - Gloucester County Council v EH (SEN) [2017] UKUT 85 (AAC)

This case concerns the obligation of local authorities (LA) in England under the Children and Families Act 2014 (CFA) in relation to young people (aged under 25 years and over compulsory school age and with special educational needs (SEN).

The appeal In this case concerned ‘H’ an 18 year old who suffered from significant levels of anxiety and selective mutism. At the time of her appeal she was being educated at home. There was an indication at the time the appeal was lodged that H was considering pursuing an Open University course which may have been considered a higher education course. Part 3 CFA does not include provision for young people in higher education. However, this matter was not discussed in the Upper Tribunal’s (UT) decision because by the time the case was heard by the First-tier Tribunal (FTT), H was no longer considering a course of higher education. The UT ruled that the FTT was correct in considering the current circumstances in front of it.

Background

H was issued with a Statement of Special Educational Needs (SSEN) in July 2014, whilst she was still attending compulsory education. The reason for the issue of the SSEN was “because of high anxiety levels”.

In or around March 2015, the LA started a transfer review to consider whether or not H should make the move from SSEN to EHCP. During the transfer review process, the LA secured advice that largely indicated that EH had significant difficulties relating to anxiety, specifically education related anxiety. There was one piece of advice that said that H had considered applying for an Open University course although communicating with course providers by email would be difficult for her. Most of the evidence, however, indicated that H had little idea of what education she wanted to pursue after 18. An independent psychologist’s report stated that she wanted to continue with her A level studies.

The LA concluded that H should not be issued with an EHC primarily because H wanted to engage in higher education.

H appealed to the FTT which ordered that the LA should issue an EHCP.

The LA appealed the decision of the FTT relying on the following  grounds:

• The FTT erred in law by determining that an EHCP was necessary when it had received limited details about the education H wished to pursue;
• The FTT erred in law by failing to identify the special educational provision that was required by H and which ‘could not be provided from within the resources available to an education setting’;
• It was irrational for the FTT to suggest that the LA failed to outline how H’s needs would be met on a further education course when the information had not been provided by H;
• The FTT erred in reaching a conclusion that an EHCP was necessary given H was a pupil over compulsory school age and there is no continuing duty on the LA to provide H with education.

The UT dismissed the LA’s appeal. Its key findings were:

• The only fair finding the FTT could have made was that H did not have a realistic expectation of pursuing a higher education course in the near future;
•  The FTT had to look at the reality of the situation rather than, as the LA pushed for, consider a hypothetical situation i.e. the requirement to consider the young person’s current circumstances at the date of the hearing;
• There is, in fact, a clear statutory duty to provide education for young people over compulsory school age. The UT stated “that the argument that Councils have no duty… is to misunderstand the purpose of the Children and Families Act“.
• It is not for the Appellant in an appeal to the FTT to establish exactly what educational package they are seeking. Rather, it is for the LA to establish that any educational provision that they may require can be delivered without an EHCP.

The significance of this case is that a person appealing to the FTT does not have to specify exactly the provision they need that requires an EHCP.

The case also confirms that the FTT must look at the position at the date of the hearing and look forward i.e. not at the situation at the time that the decision was appealed.

The case did not explore the meaning of higher education for the purposes of the CFA and EHCP. This was discussed in the later case of The Royal Borough of Kensington & Chelsea v GG (SEN) [2017] UKUT 141 (AAC).