Introduction

The case of M and M v West Sussex County Council (SEN) ([2018] WLR(D) 750) addresses critical issues surrounding Special Educational Needs (SEN) provision, particularly the incorporation of a child's views within Education, Health, and Care (EHC) plans. This judgment examines whether tribunals must adequately consider a child's preferences and feelings when determining the appropriateness of educational placements, including the option of home-schooling.

Summary of the Judgment

In this case, the parents of L appealed against the contents of her EHC Plan formulated by West Sussex County Council. The First-tier Tribunal dismissed their appeal, asserting that L could be educated in a mainstream school. However, the Upper Tribunal identified significant legal errors, notably the tribunal's failure to properly consider L's own views, wishes, and feelings regarding her education. Additionally, questions were raised about the tribunal's interpretation of statutory provisions related to home-schooling under section 61 of the Children and Families Act 2014. Consequently, the Upper Tribunal set aside the First-tier Tribunal's decision and remitted the case for re-determination.

Analysis

Precedents Cited

The judgment references key precedents that influence its decision:

• S v Worcestershire County Council (SEN) [2017] UKUT 92 (AAC): This case established that section 19 of the Children and Families Act 2014, which mandates consideration of a child's views, applies during appeal stages of EHC plan determinations.
• East Sussex CC v TW [2016] UKUT 528 (AAC): This precedent clarified that EHC Plans cannot specify "education otherwise than in a school" within section I, emphasizing that such provisions must be framed within the existing statutory framework.

Legal Reasoning

The Upper Tribunal focused on two main legal issues:

1. Consideration of Child's Views: The tribunal underscored the statutory obligation under section 19 of the Children and Families Act 2014 to consider the child's views, wishes, and feelings. It was determined that the First-tier Tribunal failed to adequately incorporate L's preferences for home-schooling and her concerns about mainstream schooling.
2. Specification of Educational Placement: The judgment analyzed whether the First-tier Tribunal correctly applied section 61 of the Children and Families Act 2014 regarding the provision of education otherwise than in a school. It concluded that while the Act does not explicitly allow specifying home-schooling in section I of the EHC Plan, there remains a need for clarity on how such provisions can coexist within the statutory requirements.

The Upper Tribunal recognized that the requirement to name a school or type of institution in section I conflicts with the possibility of arranging for home-schooling under section 61. It suggested that local authorities or tribunals could frame section 61 provisions within section F of the EHC Plan to accommodate educational provisions outside traditional school settings.

Impact

This judgment has significant implications for future EHC Plan determinations:

• Enhanced Consideration of Child's Views: Tribunals are now unequivocally required to thoroughly consider and explicitly address a child's own views, wishes, and feelings during appeal proceedings.
• Clarification on Educational Placements: The case paves the way for greater flexibility in specifying educational provisions, including the possibility of home-schooling, within the EHC Plan framework, provided it aligns with statutory requirements.
• Procedural Adjustments: First-tier Tribunals may need to revise their procedures to ensure that a child's perspectives are adequately documented and considered in their reasoning and decisions.

Complex Concepts Simplified

Education, Health, and Care (EHC) Plans

EHC Plans are legal documents in the UK that outline the educational, health, and social needs of children with SEN and the support required to meet those needs. They replace Individual Education Plans (IEPs) and are designed to ensure comprehensive support across various aspects of a child's development.

Section 61 of the Children and Families Act 2014

This section grants local authorities the power to arrange for any special educational provisions to be made outside of a school setting (i.e., home-schooling), but only if it is deemed inappropriate for the provision to be made within a school.

Section 19 of the Children and Families Act 2014

This section imposes a duty on local authorities to consider the views, wishes, and feelings of the child when making decisions related to their EHC Plan. It emphasizes the importance of the child's participation in decisions affecting their education and well-being.

Upper Tribunal (Administrative Appeals Chamber)

A judicial body in the UK that hears appeals against decisions made by lower tribunals, such as the First-tier Tribunal, particularly in administrative and social welfare cases.

Conclusion

The Upper Tribunal's decision in M and M v West Sussex County Council marks a pivotal development in SEN law, reinforcing the necessity for tribunals to genuinely incorporate a child's views into EHC Plan appeals. Additionally, it highlights the ongoing need to reconcile statutory requirements with the flexibility to accommodate alternative educational provisions like home-schooling. This judgment ensures that the voices of vulnerable children are not only heard but also given due consideration in legal determinations affecting their education and well-being.