The Upper Tribunal has handed down judgment in DM v Cornwall County Council [2022] UKUT 230, the first appeal to consider specificity required in an Education, Health and Care plan (“EHC Plan”) where a child receives ‘education otherwise than at school’ (“EOTAS”).
The child in the case was disabled and had multiple diagnoses including foetal alcohol spectrum disorder and autistic spectrum disorder. He had an EHC Plan, in which it was agreed by both parties that he should have a package of EOTAS, pursuant to section 61 of the Children and Families Act 2014.
An overarching point of the appeal was the submission that, in the context of EOTAS, an EHC Plan would generally need greater specificity as there was not the day to day oversight of a school. On this point the Upper Tribunal considered specificity will be determined primarily by the facts but noted:
“…in some very general sense that educational provision which is bounded by a school building and the provision and rules that may apply to all pupils in that school may to an extent be assumed and not need to be stated whereas that provision may need to appear more explicitly in a case where the EHCP concerns a child being educated at home and otherwise than in school. However, the degree of specificity that is required for an individual child in their EHCP will always have to depend on the facts of that child’s case.”
The Upper Tribunal went on to consider aspects of specificity (and other unlawfulness) in the provision that the First Tier Tribunal had ordered. Some will have wider significance to other cases:
- An “All You Need to Know” document; delegation of First Tier Tribunal’s function to determine the dispute. In the present case, the Court considered provision of an ‘All You Need to Know” document to be drawn up about the child, co-ordinated by a named individual employed by the CCG. This was to “provide guidance about how interactions should best take place with [the child]” and “include guidance…regarding the implication of [the child’s] neurological presentation on how best to interact with him”. This was unlawful because it was for the tribunal to “determine” educational provision and it effectively passed the responsibility to someone not even an employee of the authority. The document also lacked specificity because it was for the Tribunal, the arbiter of the dispute, to say more about how it intended the document was to be compiled and what it should contain.
- Lawfulness of termly reviews of provision. The First Tier Tribunal also provided that the child’s education was “subject to termly review, and until such time as it is no longer necessary for him to be educated in this way due to it being inappropriate for provision to be made at a school”. This was held to be lawful, as it had been set out elsewhere that “key adults” would attend which was sufficiently specific. It also rejected the argument that the reviews were unlawful, providing an extra-statutory mechanism for changing special educational provision. Rather the “plain focus of what the tribunal ordered [was] in respect of the reviews leading to “adjustments” according to progress (or lack of progress) the child may have made”.
- Occupational therapy provision at “an appropriate stage of the implementation of this plan”. The Appellant argued this was insufficiently specific because it was so vague as to be unenforceable. In the context of the case, the Upper Tribunal considered this to be lawful in light of the FTT’s reasoning as to why setting down rigid structures for occupational therapy was not appropriate at this stage.
- A speech and language document to be provided with no timescale. The Upper Tribunal held that, whilst provision of a speech and language therapist to “provide a concise document setting out guidance for what to do in instances when [the child] is not speaking during interactions” was not itself unlawful, the failure to provide a timescale for this was unlawful. It rejected the Council’s argument that it must be a “reasonable time”.
A case note is also available on
Local Government Lawyer.
Leon Glenister represented the Appellant, instructed by James Betts and Jennifer Wright at Rook Irwin Sweeney.
