Upper Tribunal concludes First-tier Tribunal erred in upholding refusal of placement request for additional needs education

About this case:

• Citation:
  2024UT50
• Judgment:
  External link
• Court:
  Upper Tribunal for Scotland
• Judge:
  Lord Young

Appellant JH, whose younger son J was diagnosed with autism spectrum disorder and associated ADHD, had sought to enrol her child in Scottish Borders Council’s Leader Valley Enhanced Provision scheme. She argued that, in confirming the refusal of her request, the First-tier Tribunal had been influenced by immaterial evidence.

The application was considered by Lord Young of the Upper Tribunal for Scotland. Written submissions were provided by both parties.

Relevant proxy

At the time of the application J was enrolled at School A, where he received the majority of his education with significant one-to-one support in a hub attached to the primary school. In February 2023 the appellant made a shared placing request to the respondent that he be enrolled within the respondent’s LVEP, comprising 5 specialist schools for children with complex additional needs.

While the referral form completed by the appellant did not specify which school she wanted J to attend, in a letter dated 30 May 2023 the respondent refused the request stating that for the reason that “the education normally provided at the specified school is not suited to the age, ability or aptitude of the child”. It was agreed before the First-tier Tribunal that the placing request related to one particular LVEP school, School B.

Following a hearing, the FTS upheld the respondent’s refusal of the placing request. At the hearing, evidence was given by Witness C, the Principal Teacher of Enhanced Provision at another LVEP school, School C. It was contended by the appellant that the FTS had made findings in fact in respect of School B based on Witness C’s evidence concerning the pupil profile at School C, and thus had erred in law.

The respondent’s written response to the grounds of appeal submitted that, as there was no grading where pupils with particular needs were allocated to a particular LVEP location, consideration of the pupil profiles for School C were a relevant proxy for School B. The respondent contended that the original placing request had been general in nature, however in response the appellant submitted that by the time of the hearing the position had changed.

Bare finding

In his decision, Lord Young said of Witness C’s evidence: “The FTS was well aware that witness C was describing the pupil profiles at school C rather than the individual profiles of pupils attending school B. The reason why the FTS felt able to make findings in fact on pupil profiles for school B is that the FTS also accepted witness C’s evidence that both the entry criteria and pupil profiles were common to all of the LVEP facilities.”

He continued: “The FTS’s findings in fact could undoubtedly have been framed with greater precision. It would have been more accurate if the findings in fact had simply recorded that pupils at school C had particular abilities and then, if appropriate, a further finding in fact that all five LVEP primary locations catered for children with broadly similar profiles. However, I do not consider that this appeal turns upon the wording of the findings in fact as it is reasonably clear from reading the whole of the decision why the FTS felt able to make findings in fact in relation to school B based on evidence relating to school C.”

Addressing whether the FTS had been able to make findings on School B appropriately, Lord Young said: “In its decision, the FTS have not adequately explained the basis on which witness C was qualified to opine on pupil profiles for all locations. On the face of the decision, it would appear that witness C’s evidence that a common entry criteria was applied across all five locations may be why she formed the view that the pupil profile at all five locations was broadly the same. The FTS has not interrogated that assumption by considering how the entry criteria has in practice been applied in recent years, or by way of a comparison of pupils’ additional needs across the five locations.”

He went on to say: “The FTS have erred in law by making a bare finding in fact on the failure to meet the entry criteria without identifying for the informed reader in what respect the entry criteria are not met or the evidence on which such a finding in fact has been made.”

Lord Young said in postscript: “There is a sense from the FTS’s reasoning that in this case that the identification of differences between child J’s abilities and the cohort pupils was seen as sufficient in itself for the conclusion that school B was not suitable to child J’s abilities and aptitude. As a general observation, an education authority refusing a placing request on the basis that the child’s profile differs in material respects from the general profile of pupils attending that school, needs to articulate in what respect it considers those differences would adversely affect the child’s education if placed at the school.”

The appeal was therefore allowed, and the matter remitted to a differently-constituted FTS.