What factors must the Local Authority and First-tier Tribunal consider when exercising its SEN functions?

The Children and Families Act 2014 (CFA 2014) is fundamental in governing Special Educational Needs (SEN) law in England. Some aspects of the CFA 2014 are widely known, for example the sections relating to EHCP’s. However, a lesser known, but still important section, is Section 19.

Section 19 CFA 2014 stipulates what factors Local Authorities must consider when exercising its functions in matters relating to children and young people (YP) with SEN. 

Section 19 CFA 2014 lists four particular factors that Local Authorities must have regard to:

1.    The views, wishes and feelings of the child and their parent, or the YP;

2.    The importance of the child and parent, or the YP, participating as fully as possible in decisions;

3.    The importance of the child and parent, or the YP, being provided with information and support to participate in such decisions; and

4.    The need to support the child and parent, or the YP, to facilitate development and to achieve the best possible education and other outcomes.

Ensuring that the 4 factors listed in Section 19 of CFA 2014 are considered by Local Authorities when exercising their SEN functions facilitates the operation of the overriding objective; which is that all cases are to be dealt with justly and fairly.

The First-tier Tribunal (Special Educational Needs and Disability) (FTT) when considering Appeals must consider all relevant law.  So does the FTT also need to consider the key principles listed in Section 19 CFA 2014? Case law provides that Section 19 CFA does in fact apply to the FTT.

S v Worcestershire County Council (SEN) [2017] UKUT 0092 (AAC) involved an appeal against the FTT and was brought to the Upper Tribunal (UT) by a YP in relation to their post-16 educational placement.

The appeal by the YP to the FTT was made on the basis that the YP’s Education, Health and Care Plan did not identify a post-16 educational placement. The Local Authority had proposed a maintained college placement, which it believed to be suitable to meet the YP’s needs. However, the YP sought an order naming an independent school; which they argued would be more beneficial to meet their needs. However, the FTT refused to name an independent school and the YP’s appeal was unsuccessful. 

Subsequently, the YP appealed to the UT, on the basis of five grounds of appeal, one of which required the UT to consider if the obligations under Section 19 CFA 2014, should be applied to an appeal to the FTT. In reaching their decision the UT stated that the FTT essentially did not have to expressly act in accordance with Section 19, but by considering the views, wishes and feelings of the YP, they would be acting in the spirit of Section 19.

The Tribunal process and the laws governing it can be complex and daunting for parents and YP. We aim to utilise our specialist knowledge and experience of this area of law to make the Tribunal process as easy as possible whilst striving to achieve positive results for our clients in their time of need. If you would like to discuss your matter further with our team, please contact us on 0333 202 7175 or education@hcbgroup.com