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The Upper Tribunal has set aside a decision of the First Tier Tribunal, finding an error of law in the decision it had reached on the educational placement to be named in a child’s Education, Health and Care Plan, on the basis the FTT failed to consider how the child felt about the named placement (TS and SM v Liverpool City Council [2024] UKUT 201 (AAC).
The case concerned a child with a diagnosis of autism spectrum disorder and other difficulties. His parents sought a place at a non-maintained school where he had been attending weekly ‘enrichment’ sessions. The local authority argued this was an inefficient use of resources and that his needs could be met at a local mainstream school with special resourced provision. The Tribunal found both schools suitable and named the local authority’s preferred school.
This appeal centred on the failure to consider the child’s staunch objection to attending the named school, including threats to harm himself if forced to go there. This had been set out in a medical report after the school had been named.
The Upper Tribunal set out a useful summary of the law in relation to taking account of a child’s views and feelings (paragraphs 13-15). The Judge distinguished “views” and “feelings”, noting that often a child’s views may align with their parents, but a child will often have feelings on particular matters.
In this case the local authority had not included the child’s views in its response as required to do so under the procedural rules; there was no evidence in the bundle about how the child felt about the local authority’s proposed school; and the Tribunal did not ask the child how they felt about going there during the hearing when he briefly appeared on camera. This amounted to an error of law.
The Judge commented that the evidence of a child’s feelings should ideally be gathered at an early stage and in a sensitive way. There is no prescriptive way this should be done, but he did refer to The Senior President of Tribunals’ Practice Direction (First-tier and Upper Tribunals: Child, Vulnerable Adult and Sensitive Witnesses) which states the First Tier Tribunal must consider how to support a child or vulnerable adult to provide evidence.
This case illustrates and re-emphasises the importance of local authorities and Tribunals taking into account both a child’s views and feelings. A failure to do so can, on its own render a decision subject to an error of law.
Leon Glenister acted for the Appellant pro bono, with assistance being given by James Betts of the Liverpool Law Clinic.
