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The Upper Tribunal has refused permission for a boy’s parents to appeal that the First-tier Tribunal had failed sufficiently to safeguard their son’s rights to prevent him being ‘off-rolled’ from his current school without their consent.

Upper Tribunal Judge Stout concluded that the removal of the child from the school’s roll was not caused or required by the Tribunal’s decision, and the local authority who removed him still had a duty to consult parents before changing schools or arranging alternative provision.

The background to the case was that the appellants’ child (D) attended X School, a special school. However, following a breakdown in relations between the appellants and X School, the appellants appealed to the First-tier Tribunal seeking to have Y School named.

D continued attending X School in the meantime. Later, the First-tier Tribunal found Y School to be unsuitable.

Neither party invited the Tribunal at the hearing to consider another school, although they were in the process of identifying alternatives. The Tribunal accordingly named ‘special school’ as a type in Section I.

The local authority subsequently consented to D being removed from the roll of X School, without consulting with the appellants. The local authority acted on the understanding that removing D from the roll of X School was a consequence of the First Tier-tribunal’s decision.

The local authority subsequently notified the parents that a final EHC Plan would name “Z School” and this was then issued.

The appellants said they did not want D to attend Z School as the journey was too difficult/long.

The appellants sought permission to appeal on the basis that the Tribunal had failed sufficiently to safeguard D’s rights to prevent him being ‘off-rolled’ without the appellants’ consent. They also invited the judge to suspend the decision of the First-tier Tribunal pending the appeal.

The Upper Tribunal judge noted: “As it emerged at the hearing before me, the appellants’ preference is now for D to return to X School.”

The appellants submitted the following grounds:

  1. The First-tier Tribunal erred in failing to ensure compliance with section 42 of the Children and Families Act 2014 and/or that the First-tier Tribunal failed to ensure that the local authority safeguarded D’s rights during transitions.
  2. The First-tier Tribunal erred in law by failing to ensure that D was not ‘off-rolled’ contrary to regulation 8(2) of The Education (Pupil Registration) (England) Regulations 2006 (which requires a special school not to remove a pupil from roll without the consent of the local authority) and/or that the Tribunal’s decision wrongly enabled D to be removed from the school roll without parents’ consent.

Considering the case, Upper Tribunal judge Stout said: “The appellants’ case on this appeal is in substance that the Tribunal should have left X School named in Section I. However, at the time of the hearing, neither party was asking the Tribunal to leave X School named in Section I, otherwise than on the ‘conditional basis’ that the appellants had been arguing for at the start of the hearing, but had then abandoned.

“The reason why neither party was contending that X School should remain named in Section I was not because either party considered it to be per se unsuitable, but on the basis that it was no longer the school of (unconditional) parental preference and because of the difficult relations between the appellants and the school. The local authority has suggested that relationships between the appellants and X School meant that X School had become unsuitable, but that was not the case they invited the Tribunal to determine at the hearing.”

She continued: “Further, although there are cases where a breakdown between parents and school might lead to a conclusion that a school is ‘unsuitable’, the Upper Tribunal (Judge Ward) in Richmond upon Thames LBC v AC [2017] observed that great caution should be used before that conclusion was reached. In this case, neither party argued before the Tribunal that X School was unsuitable and the Tribunal made no determination to that effect. D remained ‘on roll’ at the school and attending daily at the time of the Tribunal hearing.”

The Upper Tribunal judge noted that the fact that both parties were seeking alternative schools, was an “important reason” why it was necessary for the Tribunal to leave Section I as naming a ‘type’ of school.

She said: “The only possible alternative to naming a type of school, it seems to me, would have been for the First-tier Tribunal to issue a ‘provisional decision’ on the suitability of Y School and then give directions for an adjournment and further hearing to determine Section I at a later date. Neither party contended for that outcome before the First-tier Tribunal and neither has suggested before me that the Tribunal should have adopted that course of its own motion.

“For the avoidance of doubt, I do not consider that the First-tier Tribunal arguably erred in law in not expressly considering that option of its own motion given the circumstances. It is not the role of the Tribunal to ‘supervise’ the parties in their search for an appropriate school. The Tribunal’s role is to determine the appeal before it. The Tribunal in this case did that and did not arguably err in law in doing so.”

The Upper Tribunal clarified that by section 61 of the CFA 2014, a local authority is only permitted to arrange special educational provision otherwise than in a school if it is satisfied that it would be inappropriate for provision to be made in a school, and before doing so the authority must consult the child’s parent.

Criticising the local authority in the case, the Upper Tribunal judge said: “If the local authority considered that, as a result of the breakdown in relations between the appellants and X School, it was ‘appropriate’ for provision to be made for D otherwise than in a school for a period, it was therefore obliged to consult the appellants before taking action to provide education in that way.”

The local authority’s position in the case was that D was not excluded, but that he was removed from roll as a consequence of the First-tier Tribunal’s decision.

However, the judge rejected this argument, noting that the Tribunal was “not responsible for the subsequent actions of the local authority, which were not directed, caused or permitted by anything the Tribunal had done or not done”.

She said: “The Tribunal at the end of its decision added a plea to the local authority to comply with its legal obligations. The Tribunal’s (wholly reasonable) expectation was that the local authority would adhere to the statutory framework set out above and the Tribunal did not arguably err in law in proceeding on that basis.”

Upper Tribunal Judge Stout found no arguable error of law in the decision of the First-tier Tribunal and refused permission to appeal.

She concluded: “It follows that the application to suspend the effect of the First-tier Tribunal’s decision must also be refused because under rule 5(3)(m) of the Upper Tribunal rules, I cannot suspend the decision if I am refusing permission to appeal.”

Lottie Winson

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