Nottinghamshire County Council v SF And GD

Factual and Procedural Background

The appeal arises from a dispute concerning special educational needs and disability provision under the Children and Families Act 2014 (CFA 2014). The appellant, a local authority, challenges a decision of the First-tier Tribunal (FtT), upheld by the Upper Tribunal (UT), that it was necessary for special educational provision to be made for a child ("HD") via an Education Health and Care Plan (EHC plan). The child, now seven years old, has autism spectrum disorder, dyspraxia, hypermobility, and other health issues, and attends a maintained mainstream primary school where his needs are currently met.

A statutory needs assessment was conducted in late 2017. The local authority panel concluded in August 2018 that HD's needs were identified and met by the school, and decided not to issue an EHC plan. HD's parents appealed to the FtT, which allowed the appeal and ordered an EHC plan. The local authority unsuccessfully appealed to the UT and then to this court, with permission.

An anonymity order protects the child’s identity, his parents, and the school’s details. This is the first Court of Appeal consideration of the meaning of "necessary" in section 37(1) CFA 2014.

Legal Issues Presented

1. Whether the tribunals erred in law by misconstruing the meaning of "necessary" in section 37(1) CFA 2014 regarding the requirement for an EHC plan.
2. Whether the tribunals wrongly applied the legal test in section 37(1) CFA 2014 to the facts of the case.
3. Whether the tribunals wrongly applied the Code of Practice in their decision regarding the necessity of an EHC plan.

Arguments of the Parties

Appellant's Arguments

• The local authority contends it cannot be "necessary" to prepare and maintain an EHC plan for a child making progress at a school that has successfully identified and met the child's needs.
• They argue that most children with special educational needs do not have an EHC plan, reflecting that the statutory duty on schools to use "best endeavours" suffices.
• The local authority relies on the Code of Practice, particularly paragraph 9.55, which links the necessity for an EHC plan with a lack of sufficient progress despite appropriate provision.
• They submit that the FtT’s evaluative judgment about potential future changes in the child's needs is a general statement applicable to all cases and not sufficient to establish necessity.
• They assert there is no concept within the statutory scheme that monitoring and adaptation of provision constitute special educational provision necessitating an EHC plan.

Appellee's (Parents') Arguments

• The parents argue that "necessary" is not defined in relation to the adequacy of provision or progress, but rather by reference to special educational provision nationally available in mainstream schools for children of the same age.
• They assert that the tribunal is entitled to find necessity if the provision made by the school is not generally available nationally.
• The Code of Practice is not binding on the tribunal or the court.
• The parents emphasize that the child’s needs are complex and evolving, including new anxiety and investigations for additional diagnoses, requiring constant monitoring and adaptation not resourced by the school.
• They submit that the statutory framework’s flexibility allows for consideration of prospective risks and changes, which supports the necessity of an EHC plan in this case.
• The parents note that the statutory review and reassessment processes do not adequately address the practical impact and delays experienced by parents and children.

Table of Precedents Cited

Court's Reasoning and Analysis

The court began by affirming that the word "necessary" in section 37(1) CFA 2014 is a common English word requiring an evaluative judgment by the tribunal based on the facts. The tribunal must compare the special educational provision required with that generally available nationally in mainstream schools, as established by section 21(1) CFA 2014. The court acknowledged that this is a fact-specific, specialist judgment that may vary case by case.

The court noted that the Code of Practice provides guidance but is not legally binding and must not override statutory provisions or case law. Although the local authority relied on the Code’s indication that an EHC plan is generally only necessary where a child is not making sufficient progress, the court found that the statutory scheme encompasses a broader range of circumstances, including prospective considerations.

The tribunal’s factual findings were unchallenged and included that the school had identified and met HD’s needs, but that HD was demonstrating new anxiety requiring ongoing monitoring and adaptation not currently resourced. The tribunal concluded that the level and quality of provision made by the school was unlikely to be replicated nationally and that an EHC plan was necessary to ensure delivery and monitoring.

Applying the standard from Re B, the court held that no error of law or perversity was shown in the tribunal’s evaluative judgment. The tribunal’s reasoning was clear and within the range of reasonable conclusions. The court emphasized that the statutory framework anticipates such prospective judgments about the child’s evolving needs and the adequacy of provision.

Holding and Implications

DISMISSED

The court dismissed the appeal, upholding the decisions of the First-tier Tribunal and the Upper Tribunal that an EHC plan was necessary for the child. The direct effect is that the local authority must secure and maintain the EHC plan in accordance with section 37(1) CFA 2014. No new legal precedent was established beyond affirming existing Upper Tribunal case law and the proper application of statutory provisions. The decision confirms the specialist tribunal’s evaluative judgment role in determining necessity, including consideration of prospective needs and national comparators, and clarifies the non-binding status of the Code of Practice in these determinations.