The recent Upper Tribunal decision in London Borough of Islington v A Parent has clarified the responsibilities of the First-tier Tribunal’s (‘FTT’) role in appeals related to Education, Health, and Care Plans ‘(EHCPs’), particularly concerning the application of section 39(4) of the Children and Families Act 2014.

The judgement by Upper Tribunal Judge Stout builds on earlier jurisprudence, such as AJ v London Borough of Croydon [2020] UKUT 246, and highlights procedural fairness and the inquisitorial role of the FTT.

Judicial Summary and Key Legal Principles

Under Section 39(4) of the Children and Families Act 2014, a local authority should comply with the ‘parental preference’ for a particular school to be named in Section I in an EHC plan, unless:

A)    The school is unsuitable for the child, or

B)     Attendance at the school would be incompatible with –

         i) the efficient education of others, or

        ii) the efficient use of resources.

This case focused on section 39(4)(b)(ii); the ‘efficient use of resources’ exception.

The First-tier Tribunal appeal

The FTT dispute arose between Islington and a parent regarding the appropriate educational placement for a child with special educational needs, referred to as “C,”. Islington sought to name a local special academy with a vacancy for C. However, the parental preference was a community special school in a neighbouring local authority, which was reportedly oversubscribed.

The neighbouring authority and the parents’ preferred school declined to provide a witness for the hearing, however, the local authority submitted written evidence about the costs involved in a placement at that setting. The local authority also submitted written evidence as to the costs of its preferred placement and brought its Headteacher as a witness to the hearing.

The FTT ultimately concluded that the local authority’s costs evidence was unreliable and ruled in favour of the parental preference.

In making its decision, the FTT determined that the burden of proof was on the local authority to prove the accurate costs of the two placements, however, it deemed the local authority’s evidence in this regard to be “unreliable” and rejected it. The FTT consequently ordered that the school of parental preference should be named in Section I of C’s EHC plan.

Upper Tribunal Findings

On appeal, the Upper Tribunal found several procedural and substantive errors in the decision made by the FTT:

1. Misapplication of Burden of Proof: The Upper Tribunal held that the FTT erred in law by incorrectly placing a burden of proof on the local authority to demonstrate accurate costings of both placements. In order to apply section 39(4) appropriately, Judge Stout held that the FTT is required to “stand in the local authority’s shoes” by proactively seeking the evidence required to determine the appeal before the hearing in order to exercise its inquisitorial jurisdiction to resolve disputes fairly. She considered that the FTT’s rejection of the local authority’s evidence was “perverse”.
2. Failure to Address Concerns: The FFT, despite any concerns it may have had about the reliability of the local authority’s evidence, failed to raise these concerns during the hearing. Furthermore, the FTT failed to utilise its case management powers to address the issue. Specifically, it failed to:

• • • Request further evidence from the neighbouring local authority and/or parents preferred school; and
    • Summon a witness from the neighbouring local authority and/or parents preferred school to clarify the unresolved cost discrepancies.

  3.Failure to Adjourn: The Upper Tribunal held that the FTT’s failure to adjourn the proceedings in order to gather further evidence was unreasonable. It was noted that the any delay in resolving the case would have been minimal prejudice to the parent and child. In contrast, the possible prejudice to the local authority was that it was required to fund the parents’ preferred placement for C at a significant cost to the public purse.

As a result of these findings, the Upper Tribunal remitted the case to a fresh FTT panel for re-determination.

Broader Implications

This case of London Borough of Islington v A Parent could potentially have significant, wide-reaching implications for how the FTT approach disputes relating to EHCPs:

1. The FTT must take an active role in managing hearings to ensure that the evidence submitted by parties is adequate and fair, particularly where third parties are central to the dispute but are unable to, or fail to, fully participate.
2. The judgment emphasises the need to balance parental preferences with the efficient use of public resources.
3. The ruling reiterates the inquisitorial role of the FTT and its responsibility to act as an impartial factfinder, rather than defaulting to an adversarial approach.

Long-Term Impact on SEND Appeals:

The ruling in London Borough of Islington v A Parent represents a significant moment in SEND (Special Educational Needs and Disabilities) law. By clarifying the application of section 39(4) of the Children’s and Families Act 2014 and affirming the importance of procedural fairness. By doing so, it sets a precedent for balancing parental rights with public resources in the EHCP appeals process.

The ruling also significantly impacts the SEND appeals process, particularly regarding how evidence is handled and the role of the FTT. This case introduces important dynamics, by shifting the responsibility onto the FTT. The increased responsibility placed on the FTT to seek and assess evidence before the final hearing could place additional burdens on the tribunal system, which is currently under considerable strain due to the high volumes of appeals submitted. With the added task of identifying missing evidence and seeking to rectify any gaps in evidence, the resolution of cases may take more time, and it may result in many hearings being adjourned for the missing evidence to be obtained. This could also have a knock-on effect on the FTT’s ability to manage the large volume of SEND appeals, potentially slowing down the overall process.

The ruling could also set a precedent where local authorities may feel less compelled and incentivised to thoroughly prepare its case and provide comprehensive evidence in the given timetable of appeal, in the knowledge that the FTT have the ultimate responsibility to step in to order that further evidence is obtained and will likely extend the appeal timetable to do so.

Whilst the Upper Tribunal acknowledged that an adjournment would cause “minimal” prejudice to the parent and child, it raises concerns over the impact of similar delays caused by adjournment, where a child who is not receiving the necessary support to progress and address their needs effectively, is the subject of the appeal.

Conclusion

In conclusion, the decision in London Borough of Islington v A Parent serves as pivotal clarification of the FTT’s role in resolving disputes concerning EHCPs The. judgment emphasises the importance of procedural fairness and the FTT’s inquisitorial role, highlighting its duty to ensure that all relevant evidence is considered before making decisions. By addressing the misapplication of the burden of proof and procedural oversights, the Upper Tribunal has reinforced the necessity of thorough case management and proactive evidence-gathering by the FTT.

The ruling also raises important questions about the balance between parental preferences, efficient use of public resources, and the potential strain on the tribunal system. The increased responsibility placed on the FTT to fill evidentiary gaps could lead to delays, adjournments, and additional administrative burdens, potentially slowing down the resolution of SEND appeals at a time when the system is already under significant pressure. While the judgment emphasises the need for fairness and careful deliberation, it also highlights the challenge of ensuring that children with special educational needs receive timely and appropriate support.

Ultimately, London Borough of Islington v A Parent highlights the complexity of balancing procedural rigor with the practical realities of SEND appeals, setting an important precedent for future cases while also sparking debate about its long-term implications for the SEND system.

If you have any questions in relation to this article, please contact the Geldards Education Team.