Successful Upper Tribunal appeal makes important ruling about EOTAS: DM v Cornwall CC (SEN) [2022] UKUT 230 (AAC)

Rook Irwin Sweeney recently acted for an appellant who brought a successful case before the Upper Tribunal, on appeal from the first-tier Special Educational Needs and Disability Tribunal.

Solicitors James Betts and Jennifer Wright acted for the family member of a ten year old child with diagnoses that included foetal alcohol spectrum disorder and autistic spectrum disorder.

The case raised an important issue that the Upper Tribunal has not considered before. It considered the flexibility and specificity that should be set out in an  Education, Health and Care Plan (‘EHC Plan’) when a child is educated otherwise that at school, often referred to as an EOTAS package.

The parties in this case were in agreement that an EOTAS package was needed.  What was in dispute at the appeal was the specificity in the child’s EHC Plan.

Our client was concerned that her family member’s EHC Plan  failed to specify what should be provided. In particular she was concerned that:

• It was not clear what therapy provision was to be provided; and
• The Tribunal had included wording that a separate document called ‘ All about [the child]’ be prepared (in addition to the EHC Plan) to provide guidance to staff about how interactions should best take place. Our client felt this was provision that should be set out in the EHC Plan as opposed to a separate document. She was also concerned that a specific individual was named as being responsible for preparation of this new document. This person was not employed by the local authority, had since retired and was not therefore able to prepare the document as had been envisaged. Finally, our client was concerned  the EHC Plan lacked information about who else should be involved in preparing the document and whether it should be created in consultation with our client.

The classic test on specificity is whether the EHC Plan “is so specific and so clear as to leave no room for doubt as to what has been decided and what is needed in the individual case”: L v Clarke and Somerset [1998] ELR 129.

It is acknowledged that in some instances there can be a measure of flexibility in an EHC Plan.

But where there is an EOTAS package in place, the appellant sought to argue that the opposite was true. With an EOTAS package in place, the LA has less day to day oversight of the delivery of provision, and therefore, the appellant argued, there was a greater need for specificity.

The Upper Tribunal Judge found that the decision of the First-tier Tribunal contained errors of law, and remitted the case back to the first-tier Tribunal to reconsider.

Crucially, however, the Upper Tribunal Judge also considered the wider overarching argument about the need for specificity in EHC Plans in EOTAS cases, noting that:

“I can see that in some very general sense that educational provision which is bounded by a school building and the provision and rules that may apply to all pupils in that school may to an extent be assumed and not need to be stated whereas that provision may need to appear more explicitly in a case where the EHCP concerns a child being educated at home and otherwise than in school. However, the degree of specificity that is required for an individual child in their EHCP will always have to depend on the facts of that child’s case. ”

The judgement therefore confirms that there may be a need in cases involving EOTAS provision to set things out in more detail than would be the case if a child was attending a school or college. However, the judge also emphasised that the level of detail required will always depend on the facts of the individual case.

This is a helpful finding by an Upper Tribunal judge that we hope will support other parents seeking more clarity about the level of specificity that should appear in the EHC Plan of their child with an EOTAS package.

The judgement in this case can be found here.

Counsel in the case was Leon Glenister of Landmark Chambers.

If  you require assistance with an education law issue do feel free to get in touch with James Betts or the RIS education team –  Contact us | Rook Irwin Sweeney – Public Law. Human Rights.