Parents win Upper Tribunal appeal over EHCP

This case in Mrs & Mr D v Cheshire East Council [2025] UKUT 187 (AAC) concerned the EHCP for G, who is seven years old. G has a diagnosis of autism (ASD).

In an appeal to the First-tier Tribunal (the Tribunal) made in October 2023, the Appellants sought amendments to Sections B, F and I of the EHCP issued by the Respondent local authority on 10 October.

Upper Tribunal Judge S Davies noted that the local authority in the case had been barred from participating in the initial Tribunal hearing in September 2024 for “non-compliance with the Tribunal’s orders”.

Shortly prior to the hearing date, the local authority produced an amended working document and agreed to name the school of parental preference in Section I. Therefore, the appeal before the Tribunal focussed on sections B and F.

The Tribunal issued their decision on 2 October 2024. On 28 October 2024, the parents applied to the First-tier Tribunal for permission to appeal against that decision in respect of section F of the EHCP.

The application was refused by Judge McCarthy in a decision dated 19 December 2024.

Following this, the parents applied for permission to appeal to the Upper Tribunal on the following two grounds:

• Ground 1: The Tribunal’s decision as to the wording that should be ordered into section F of G’s EHCP in relation to 1:1 support was irrational (the 1:1 ground)
• Ground 2: The Tribunal unlawfully failed to deal with a key issue in dispute between the parties in relation to Speech and Language Therapy (the SLT ground).

At the Upper Tribunal hearing, the appellants raised the possibility of the local authority being disbarred from further participation were the case to be remitted. However, it was agreed that participation in future proceedings was “properly a matter for the First-tier Tribunal” and no application was made to the Upper Tribunal judge.

The Upper Tribunal allowed the parents’ appeal concerning their child’s Education, Health and Care Plan.

Upper Tribunal Judge S Davies found that the First-tier Tribunal had “erred in law” by failing to adequately specify the level of 1:1 support required and by not addressing disputed Speech and Language Therapy (SLT) provision in Section F of the EHCP.

Further, the Upper Tribunal judge found the First-tier Tribunal’s reasoning was “lacking” as it failed to adequately evaluate “all the available evidence”.

Concluding the case, Judge S Davies said: “Whilst I have sympathy with the Appellants’ position, that they should not be put to further delay or costs, I do not consider it appropriate for me to remake this decision. Particularly in circumstances where the level of 1:1 support required is contested and the Tribunal took a different approach to that advanced by both parties.”

He added: “In light of the errors identified in the decision and the possible delay in reconvening the panel, the remitted hearing will be before a newly constituted panel.”

Lottie Winson