M and M v West Sussex County Council (SEN) (Special educational needs - special educational provision - naming school or other institution in EHC plan)

Factual and Procedural Background

The case concerns an appeal by the parents of a child ("Plaintiff") against the contents of an Education, Health and Care (EHC) Plan prepared by a local authority ("Defendant"). The child has a complex cognitive profile with multiple identified difficulties, including sensory processing disorder and social communication challenges, alongside a recent history of sexual exploitation and vulnerability. The child was initially educated in mainstream schools but was withdrawn by the parents to be home-schooled due to concerns about safety and suitability of school placements.

The Defendant issued an EHC Plan specifying a mainstream secondary school placement, which the parents appealed. The First-tier Tribunal dismissed the appeal, finding the child could be educated in a mainstream school and rejecting the parents' contention that the plan inadequately addressed the child's special educational needs and vulnerabilities. The parents sought permission to appeal to the Upper Tribunal, which was initially refused but later granted following a hearing.

The Upper Tribunal reviewed the case, identifying errors of law in the First-tier Tribunal's decision, particularly concerning the treatment of the child's views, the legal interpretation of home-schooling within the EHC Plan framework, and the handling of evidence related to the child's sexual and social vulnerability. The Upper Tribunal set aside the First-tier Tribunal's decision and remitted the appeal for re-determination.

Legal Issues Presented

1. Whether the First-tier Tribunal erred in law by failing to take into account the child's views, wishes, and feelings in its decision.
2. Whether the First-tier Tribunal misdirected itself in law regarding the applicability of section 61 of the Children and Families Act 2014, particularly concerning the possibility of specifying education otherwise than in a school within an EHC Plan.
3. Whether the First-tier Tribunal erred in its treatment of evidence relating to the child's history of sexual and social vulnerability and its implications for educational provision.

Arguments of the Parties

Appellant's Arguments

• The First-tier Tribunal failed to properly consider the child's views, wishes, and feelings, including her preference for home-schooling due to safety concerns and anxiety about bullying and exploitation at school.
• The tribunal incorrectly interpreted section 61 of the Children and Families Act 2014, wrongly concluding that the parents had conceded the child could be educated in a school and thereby excluding the possibility of specifying home education in the EHC Plan.
• The tribunal ignored or inadequately addressed relevant evidence about the child's sexual exploitation and vulnerability, including a social care report recommending continued home education and careful reintegration into school.

Respondent's Arguments

• The tribunal did take the child's views into account, including evidence from a child sexual exploitation service worker, and addressed transition and support arrangements for returning to school.
• The tribunal correctly held that an EHC Plan could specify 'education otherwise than in a school' only if it was inappropriate for the child to be educated in a school, a condition not met in this case.
• The tribunal's decision was evidence-based, considering all relevant documentation and witness testimony, including that the child's needs could be met in a mainstream school setting with appropriate support.

Table of Precedents Cited

Court's Reasoning and Analysis

The Upper Tribunal undertook a detailed statutory interpretation and evidential review. It emphasized that, although no express statutory provision requires the First-tier Tribunal to consider a child's views at appeal, the wider legislative context, including section 19 of the Children and Families Act 2014 and related regulations, implies such a duty. The tribunal found that the First-tier Tribunal erred by failing to expressly acknowledge and reason on the child's views, wishes, and feelings, particularly regarding her preference for home education due to safety concerns.

Regarding the legal issue of specifying home education in the EHC Plan, the court accepted the precedent that Part I of the Plan must specify a school or type of school and cannot formally name home education as a placement. However, it held that special educational provision under section 61 of the 2014 Act could be made for education otherwise than in a school within Part F of the Plan if the condition that provision in a school is inappropriate is met. The tribunal found that the First-tier Tribunal failed to adequately explore or explain the parents' position on whether the child could be educated safely in a school, leading to inadequate reasoning on this point.

On the issue of the child's history of sexual exploitation and vulnerability, the Upper Tribunal noted that the First-tier Tribunal did not sufficiently address relevant evidence, including social care reports recommending continued home education and cautious reintegration. However, since the case was remitted, the Upper Tribunal did not decide this ground but left it to the First-tier Tribunal to consider on re-determination.

Holding and Implications

The Upper Tribunal SET ASIDE the First-tier Tribunal's decision and REMITTED the appeal for re-determination by the First-tier Tribunal. The decision identifies legal errors concerning the failure to take proper account of the child's views and the misapplication of section 61 of the Children and Families Act 2014 regarding home education within an EHC Plan.

The direct effect is that the First-tier Tribunal must reconsider the appeal, explicitly addressing the child's views and properly applying the law on educational placement and provision. No new precedent was established beyond the clarification and application of existing legal principles. The matter remains subject to specialist tribunal expertise on re-determination.