At Baker Small we undertake complex litigation, particularly in the area of special educational needs. We have been involved in some of the leading cases which have helped to establish new case law and precedents to guide decision makers.
Our reported cases include:
JS v Worcestershire County Council  UKUT 451 (AAC) (20 November 2012): considers the weight the Tribunal can place on evidence given by representatives in the absence of written evidence.
CW v Hertfordshire County Council  UKUT 90 (AAC) (07 February 2013): considers the considerations that the Tribunal must consider when approaching whether a Statement of Special Educational Needs should be ceased.
Davies & Bowie v Gloucestershire County Council  UKUT 0112 (AAC): the Tribunal was correct in finding that a child's refusal to attend school did not call for special educational provision to be made for them. Therefore, the Tribunal was entitled to find that the child's school phobia was not to be treated as a special educational need for the purposes of the Education Act.
CS v WCC  HS/0896/2013: Spending money from the schools delegated budget on extra staff would be an additional cost even though it was from delegated budget (because the delegation itself is only a bookkeeping exercise). However, if the child's needs can be met through the existing staffing and resources of the school no additional costs arise for the purposes of calculating public expenditure.
Buckinghamshire County Council v ST  UKUT 468 (AAC): The Council had not acted unreasonably by proposing a school that had failed an aspect of its Ofsted inspection report when full argument about the suitability of the school had not been canvassed before the Tribunal Panel, the matter having been resolved by a compromise agreement between the parties.
Buckinghamshire County Council v HW  UKUT 0470 (AAC): clarifies the approach to be followed by the Tribunal in considering whether a child requires a statutory assessment and the circumstances when it is necessary to carry one out.
Worcestershire County Council v JJ (SEN)  UKUT 0406 (AAC): outlines the powers that are available to a Tribunal when it reviews or sets aside decisions under the Tribunal rules. In this case, the Tribunal had erred in setting aside a decision without having the power to do so in the circumstances.
LW v Norfolk County Council  (SEN) UKUT 0065 (AAC): the Upper Tier considered the Tribunals powers to review decision when considering an application for permission to appeal. In this instance, the Upper Tier found that there had been a misuse of the power of review by the Tribunal which required the decision of the Tribunal to be set aside and quashed.
KC v LB Hammersmith and Fulham (SEN)  UKUT 0177 AAC: the Parents expressed preferences for an independent special school and in the event that this was not named, asserted a right to a mainstream school. The Local Authority proposed a special school and agreed that in the event the Parents case failed, a mainstream school would be named. The Tribunal determined that the LA's special school was suitable but declined to name the mainstream school, despite the parties agreeing that this was the appropriate action. This was challenged by both parties. The Parents separately challenged the decision arguing that the costs of their proposed special independent school should be compared to the mainstream school costs.
The Upper Tier agreed that the mainstream school should have been named but held that the costs comparison exercise under 9 did not extend to the special independent school in circumstances where that preference had already been defeated and the only schools under consideration were mainstream schools and the Parent had elected their right to mainstream education.
MA v Borough of Kensington and Chelsea (SEN)  UKUT 0186 (AAC), the Upper Tier held that the FTT was correct in finding that a specialist unit for children with ASD was part of a mainstream school and was not a separate special school such that it would infringe s 316 Education Act 1996.
Cambridgeshire County Council v SF (SEN)  UKUT 0231 (AAC), the Upper Tier held that the FTT had failed to provide sufficient reasons in finding a specialist ASC mainstream school to be unsuitable for a child. The FTT had also failed to correctly apply section 9 Education Act in considering the parental preference for an independent school. The decision was overturned and remitted back to the Tribunal for reconsideration. Unusually, the Local Authority had also been able to secure a stay of the decision pending the appeal hearing. Both parties were commended by the Upper Tier for the speed at which the appeal was dealt with:
"I am grateful to both representatives who have acted professionally and with commendable speed to enable this case to be dealt with on a timescale which allows the legitimate interests of the authority to be considered, while minimising the extent of unavoidable further disruption to C's education..."
Royal Borough of Kensington and Chelsea v CD  UKUT 396 (AAC), the appeal was successful and outlined that in dealing with expert evidence the Tribunal must have a clear procedure for dealing with evidence which is in dispute, in this case, the findings of two acousticians.
Hammersmith & Fulham LBC v L, Hammersmith & Fulham LBC v F, O v Lancashire CC, H v Lancashire CC  UKUT 0523 (AAC). We acted in two of the four matters subject to the appeal before the Upper Tier Tribunal. The cases are of vital public importance as they concern how the Tribunal should calculate the costs of placements under consideration. The case settles the law on this issue and reinforces the previously established position that it is only the additional costs that are taken into account when comparing the costs of school places. Thus, if places are pre-funded there is "no additional cost" to the Local Authority in a cost comparative analysis.
P v Worcestershire County Council (SEN)  UKUT 0120 (AAC) the Upper Tier gave further guidance on how the FTT should approach the calculation of costs when considering the comparative costs of a mainstream school and an independent school.
R (Y) v London Borough of Croydon  138 QBD the case involved a child who was refusing to attend the special school named in his Statement, despite two tribunal decisions determining that the school was suitable. The child had a history of non-attendance. The parents had been seeking independent special school provision.
It was alleged that due to his anxiety and behaviours reported at home that his parents were not able to get him to school resulting in signifcant periods of non-attendance. The Local Authority could not provide a solution, although it did not accept there was any permitted reason for his non-attendance. However, neither did it seek to prosecute the child's family. As a result a stalemate followed and the child did not receive any education. The child's family brought judicial review proceedings against the Local Authority.
The High Court granted permission to apply for judicial review and considered that the Local Authority had not properly considered its s 19 duties given the circumstances. A substantive decision was never made by the Court as the matter was settled. However, the case illustrates the importance of Local Authorities taking decisive action where a child is out of education and it must ensure that its s 19 duties continue to be fulfilled.
Cambridgeshire County Council v FL-J  UKUT 225 (AAC), the Local Authority challenged a Tribunal's decision to initiate an EHC Needs Assessment for a young person attending a sixth form college. The young person was predicted to attain A grades at A Level. However, his parents had funded full time support for him. An "Assess, Plan, Do, Review" approach had not been initiated by the sixth form college. As a result of the proceedings, an educational psychologist assessed the young person and determined that he did not require the level of support being provided. The First-Tier Tribunal ordered an assessment. The Local Authority appealed against the decision and obtained permission to appeal. However, the Upper Tier dismissed the appeal and gave useful guidance on the threshold for an assessment and what should be considered.
London Borough of Croydon v LE (SEN)  HS/2365/2015 the First Tier Tribunal had erred in law by failing to provide sufficient reasons why a special school was not able to provide "embedded" speech and language therapy provision. The case reaffirms the long established duty on a First Tier Tribunal to give sufficient reasons for its decision.
SC and MS v Worcestershire County Council  UKUT 267 (AAC), the Upper Tier gave guidance on when a Statement of Special Educational Needs will be "necessary" and how the decision in NC & DH v Leicestershire CC  UKUT 85 should be interpreted where a child is attending an independent school.
London Borough of Hillingdon v WW  UKUT 0253 (AAC), which is the leading case on how the Tribunal must approach issues of mental capacity under the Children and Families Act 2014.
Buckinghamshire County Council v SJ  UKUT 0254 (AAC), is a case of critical importance in deciding when education should cease for young people with signficiant learning needs who are not likely to attain further qualifications or training. The Upper Tier held: "I reject any suggestion that the attainment of qualifications is an essential element of education. For many of those to whom the 2014 Act and Regulations apply, attaining any qualifications at all is not an option. That does not mean that they do require, or would not benefit from, special educational provision". "Necessity has to be judged practically and in light of the reality, not by reference to attainments that are more theoretical than real"
S v Worcestershire County Council  UKUT 0092 this is the first case considering the weight which should be given to s 19 Children and Families Act 2014 and separately the extent to which the First Tier Tribunal is able to amend the "outcomes" specified in Section E during the appeal process. It also clarifies the approach which should be taken where Section F of the EHC Plan is not subject to the appeal and what the FTT should do to address outdated provision.
Gloucestershire County Council v E (SEN)  UKUT 0085 considered whether the Local Authority was required to issue an EHC Plan in circumstances where the Young Person had given no details about the programme of study they wished to pursue.
Thank you for your hard work in contributing to our success. I know your confidence in the weakness of the case gave us great heart in continuing to fight on
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