Amendments to Section E of an Education, Health & Care Plan (EHCP) - P v Worcestershire County Council (SEN) [2017] UKUT 92 (AAC)

The Upper Tribunal (UT) found that the First-tier Tribunal (FTT) had made an error in dismissing a young person’s appeal against the content of an EHCP without ordering amendments to make the Plan workable.

The appeal concerned a young person, ‘R’, who was aged 17 when the EHCP was issued. R had ADHD and difficulties with communication skills, behaviour, emotional health and self-esteem. His cognitive skills fell ‘within the borderline range’.

The Upper Tribunal (UT) was asked to consider several points of law. The main findings are listed below:

Amendments to Section E of an EHCP

The UT found that the FTT can order amendments to Section E when it is considering an appeal against Sections B and F of an EHCP.

R was due to sit his GCSEs three months after his EHCP was finalised. This placed uncertainly on his future education as his options would be influenced by his results. R achieved an E grade in his GCSE English. He wanted to study a Level 3 course and wanted to attend B School, a specialist independent dyslexia school. B school did not think R would be able to cope with a Level 3 course and he was not offered a place. B school normally required at least a C Grade in GCSE English for admission to its Level 3 course but, in R’s case, was willing to waive that requirement one of its sports teachers felt his written work was of a sufficient standard and displayed greater ability than was suggested by his predicted GCSE grade.

The local authority (LA) opposed the specialist dyslexia school, stating that a mainstream college could meet R’s needs and R appealed to the FTT.

The FTT dismissed the appeal on the grounds that the Level 3 Sports Course, one of the courses R had chosen to study at B school, was unsuitable for R and concluded that R should attend a 6th Form College to study a Level 2 Sports Course and re-take his Level 2 (GCSE) English. It did not order any amendments to R’s EHCP.

R’s parents applied for permission to appeal. Permission was granted by the UT on the following grounds:

• The FTT may have erred by failing to have regard to R’s views, wishes and feelings (s 19 of the Children and Families Act 2014 (CFA) );
• The FTT may have erred in law in finding that B school was inappropriate;
• The FTT decision did not identify the outcomes within R’s EHC plan when analysing the contender placements;
• The FTT failed to order amendments to R’s EHCP.

The appeal was upheld. The key findings in this appeal were:

• Section 19 of the Children and Families Act 2014 (CFA) obligations apply to the FTT. They are obligations which apply to and are designed for the benefit of CYP. The FTT does not need to expressly state it has acted in accordance with s19 but it will “act in accordance with the overriding objective and, if it does, will be acting in the spirit of section 19.”
• The UT confirmed that the Outcomes in Section E could not be appealed but the FTT is not “placed in the jurisdictional strait-jacket” by this. Regulation 43(2) (f) of the SEND Regulations 2014 allows the FTT to order any ‘consequential amendments’ to the EHCP. The UT held that “It would be absurd if a Tribunal, having allowed an appeal and re-cast the specified special educational provision in an EHC plan, or the specified special educational needs, was unable to alter outcomes that no longer related to the provision or needs determined by the Tribunal. That is surely why regulation 43(2) (f) confers power on the Tribunal to make “any other consequential amendments” to the EHC plan as it thinks fit. This power allows the Tribunal to modify the outcomes section of an EHC plan to fit with any amendments it has ordered to an EHC plan. The EHC plan should not be left with outcomes that are pointless and confusing artefacts.”
  [Our emphasis]

• The UT found that the FTT had erred in law by failing to consider whether its decision called for it to order amendments to R’s EHC plan to make it workable and up-to-date.

The case was set aside and remitted to the FTT for a re-hearing under a different panel.

The significance of the case is that the Tribunal can order amendments to Section E when it is considering an appeal against Sections B and F (i.e. the educational aspects of an EHCP). The decision also confirms that the Tribunal’s analysis of the suitability of placements “may highlight a need to alter the special educational provision specified in the plan.“