Key case law on SEN

Special educational needs law is a relatively recent creation of statute, largely contained today in the Children and Families Act 2014. Case law on the provisions of that statute and its predecessor, illustrates how the statutory scheme is meant to work in practice and provides a further source of law, knowledge of which is essential in order to provide properly informed advice.

The government website which lists and publishes decisions of the Upper Tribunal relevant to SEN can be found here: https://www.gov.uk/administrative-appeals-tribunal-decisions. This is a useful resource for keeping abreast of recent caselaw, though it should be noted that the decisions include not only SEN cases but cases drawn from the other jurisdictions of the AAC.

The cases below, all of which date from 1st January 2016 onwards, whilst not a comprehensive list, form a starting point for consideration of key provisions of special educational needs or disability discrimination law, with some other related areas added for the sake of points of particular significance or general interest.

EHC assessments

RB v Calderdale MBC (SEN) [2018] UKUT 390 (AAC)

Proper test to be applied when considering whether an EHC needs assessment is required; Children and Families Act 2014 sections 20, 21 and 36; Cambs CC v FL-J [2016] UKUT 225 (AAC) considered and applied.

Necessity for a plan

CB v Birmingham City Council [2018] UKUT 13 (AAC)

LA refused to issue an EHC plan following assessment. Main issue was whether the child’s SEN could reasonably be provided for within the resources normally available to mainstream …schools…What resources were ‘normally available’? Relevance of local offer in assessing what was normally available. No requirement for LA to show that a particular form of provision was available in each and every mainstream school in its area.

EHC plans

M & M v West Sussex County Council (SEN) [2018] UKUT 347 (AAC)

This decision holds that the First-tier Tribunal is required to take into account a child’s views, wishes and feelings in determining an EHC Plan appeal, despite the absence of an express statutory requirement to do so. The decision also deals with the extent to which ‘education otherwise than in a school’, under section 61 of the Children & Families Act 2014, may be provided for in an EHC Plan.

East Sussex CC v KS [2018] AACR 3

Special Educational Needs – Education Health and Care Plan (EHC Plan) – a local authority has no power to pay for a child’s health provision where the NHS has refused to do so.

St Helens BC v TE and another [2018] UKUT 278 (AAC)

When considering the “appropriateness” of provision, an FtT making adequate findings, grounded in the evidence, as to a child’s opposition to attending a school, when that opposition arises as an aspect of his special educational needs, did not err in law by holding that by reason of that unmanageable opposition alone, otherwise appropriate educational provision was inappropriate.

Comparative costs

Waking Day curriculum

Procedure

Disability discrimination

School transport

Birmingham City Council v KF [2018] UKUT 261 (AAC)

School transport as special educational provision and education/training.

Judicial review and OFSTED 

Governing Body of Lark Hall Primary School v Secretary of State for Education [2018] UKUT 294 (AAC)

Application for permission to apply for judicial review by Governing Body of Primary School – Challenge to Department for Education (DfE)’s technical guidance and methodology for preparing ‘performance tables’ for primary schools – challenge to DfE refusal to disaggregate attainment and progress results for pupils attending a special unit for children with autism – R v Secretary of State for Education and Employment, ex parte The Governing Body of West Horndon, County Primary School [1997] ELR 350 considered