Does the SEND Tribunal have to pay attention to the views, wishes and feelings of the child?

with James Betts, Solicitor and Lecturer, Law Clinic, The School of Law & Social Justice, The University of Liverpool

Contents

One of the tenets of the 2014 Children and Families Act was that the disabled child and their family should be at the centre, with their wishes central to the provision of support. This will almost certainly give rise to many a wry smile or eye rolls from parents who have experienced anything but in their quest to secure the special educational help their child needs.

However, does this tenet hold true for the First Tier SEND Tribunal when it makes its decisions on appeals?

Solicitor and lecturer, James Betts, at the Law Clinic of Liverpool University’s School of Law & Social Justice, has written for us about a recent Upper Tribunal appeal his clinic has been involved with, that answers this very question.

Does the SEND Tribunal have to listen to the views of the child at the centre of an appeal? By James Betts, Liverpool Law Clinic

Does the Special Educational Needs and Disability Tribunal have to pay attention to the views, wishes and feelings of a child? A recent judgement has emphasised the answer is a clear yes.

In TM and SM v Liverpool City Council [2024] UKUT 201 (AAC) the Upper Tribunal found a failure to carefully consider how a child felt about a particular school amounted to an error of law.

This does not mean that a child’s preference must be followed in every single case. However, how a child or young person feels about a placement is a factor that must be considered when deciding whether a particular school or college is suitable.

The judgement also provides useful guidance on what views, wishes and feelings mean, how these can differ and what steps should be taken to ensure the Tribunal has sufficient evidence before it to make a decision.

Background to the Case

The appeal was brought by the parents of a seven-year-old boy. The judgement is anonymised and refers to the boy as S.

S had a diagnosis of autism spectrum disorder (ASD) with associated sensory processing difficulties, development coordination disorder (DCD) and symptoms of cerebral visual impairment (CVI).

The First Tier Tribunal decision

His parents appealed to the First Tier Tribunal seeking changes to his Education, Health and Care Plan (EHC plan). A hearing was held in January 2024. The child was out of school at the time of the hearing.

The child’s parents were seeking a place at a non-maintained special school. S had been attending weekly ‘enrichment’ sessions there and his parents wanted him to be able to attend on a full-time basis.

The local authority argued that the school would be an inefficient use of resources. They felt his needs could be met at a local mainstream school with a special resourced provision. The Tribunal found both schools to be suitable and accepted the council’s argument that the school favoured by the boy’s parents would be an inefficient use of resources.

Why the parents appealed to the Upper Tribunal

The boy’s parents appealed to the Upper Tribunal. Their appeal centred on the following points:

Their son had strong views about the council’s proposed school and was opposed to attending there;
The Tribunal did not take this into account;
Their son did not want to go to the council’s local authority’s school, it was causing him to be anxious; he was refusing to leave the house and do the things he used to enjoy and threatening to self-harm himself if forced to go there;
The summary of the boy’s views provided to the Tribunal was completed before the local authority had identified what school they proposed. No written evidence had been provided to the Tribunal setting out what he thought about the council’s proposed school;
Although S attended the hearing, he was not asked how he felt about going there; and
His views on this were important as it was not clear what was going to be done to overcome his opposition to the placement.

At the time of the Upper Tribunal decision, S was still out of school. His parents provided medical evidence confirming he was extremely anxious and stressed about attending a mainstream school.

What the Upper Tribunal said

In considering the parents appeal the Upper Tribunal considered:

The Tribunal’s ‘Overriding Objective’ to deal with cases fairly and justly;
Rule 21(2)(e) of the Tribunal’s procedural rules that requires a local authority appeal response to include “the views of the child about the issues raised by the proceedings”;
Section 19 of the Children and Families Act 2014 that states that when making decisions regarding EHC plans local authorities must have regard to the views, wishes and feelings of the child; and
Section 39 of the Children and Families Act 2014 which requires local authorities to name the school of parental preference, save for certain exceptions (including, as was relevant in this case, if the placement amounts to an “inefficient use of resources”). If the local authority refuses to name the school of parental preference, they must name a school they consider is ‘appropriate’.

The Upper Tribunal confirmed that the Overriding Objective and Section 19 of the Children and Families Act 2014 requires the First Tier Tribunal to consider the child’s views, wishes and feelings when deciding an appeal. The Upper Tribunal then went on to consider what is meant by the word ‘feelings.’ They observed that in many cases, a seven-year-old may not have expressed views or wishes different to those of their parents. However, feelings are something typical seven-year-olds do have and they should be identified and considered. If the Tribunal is being asked to decide between two schools, then the child’s feelings must be obtained and considered about each prospective placement.

Applying all of this to the facts of this appeal, the Upper Tribunal found a crucial mistake had been made by the First Tier Tribunal:

There was no evidence in the Bundle of evidence documents about how the child felt about the school proposed by the local authority; and
The Tribunal did not ask S how he felt about going there during the hearing.

This amounted to a material error of law which (given the strength of feeling S had) may have impacted on the decision as to whether the local authority school was appropriate.

Gathering the views of children with SEND

The decision then goes on to consider how a child’s feelings should be identified in future cases. The Upper Tribunal expressed a preference for these to be gathered early in the appeal process. This should be done in a sensitive way which keeps the welfare of the child paramount.

How wishes and feelings should be collected will depend on the facts of each case, but the Tribunal suggest that in some cases it might be appropriate for this to be done by an educational psychologist. The Upper Tribunal also makes reference 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. In some cases, it may be appropriate to direct that a person be appointed for the purpose of the hearing, who has the appropriate skills or experience to support the child to evidence their views,

What re the implications of the judgement?

While this decision does not change the law, it does illustrate how important it is for the Tribunal to have information about how a child feels about the matters being decided. This should include how a child feels about any placements being considered. This is crucial information that can impact whether or not a particular school will be appropriate. This case illustrates that if the Tribunal does not have that information, that alone can render the Tribunal’s decision unlawful.

This is not simply a case of providing a child with a form to complete setting out their views. All children communicate differently, some might be able to articulate their views clearly whereas other children (for example younger children or those with more complex needs) may communicate their thoughts and feelings in a different way. How feelings are to be obtained will differ depending on the individual needs of each child.

In the first instance, it is incumbent on the local authority to provide this evidence to the Tribunal. Local authorities will need to think carefully about how best to do this and take a tailored approach in each case. If this is not done, the Tribunal can use its case management powers to ensure it has the evidence it needs.

Parents bringing appeals may also want to think about submitting evidence on this to the Tribunal. This could be through a video, voice note, drawing or letter from the child. Parents may also wish to set out their own observations, for example, what their child has said, and how they have acted during and after visiting a particular school. If there is a particular professional involved that has a good relationship with the child (in or out of school) then they could be asked to help and write a report summarising the child’s feelings.

Promoted

Concluding thoughts

The Upper Tribunal referred to the child in this appeal as being out of school at the time of the decision. The case has now been sent back to the First Tier Tribunal to be reconsidered. It is very much hoped that due consideration of the child’s feelings leads to a resolution that enables S to get back into full-time education as soon as possible.

The parents who brought the appeal have said:

“We, as parents feel the Upper Tribunal has acknowledged the importance of a young boy’s feelings. Our son simply wants to go to a placement that is able to meet his needs. We hope that the local authority is now able to reconsider and make a new decision in our son’s best interests. All we want is for our son to be able to attend a school where he will thrive & succeed”.

About Liverpool Law Clinic

Liverpool Law Clinic provides free legal advice for family, special educational needs and certain types of immigration cases to people who are unable to otherwise afford it. Advice is provided by its solicitors, assisted by law students from the University of Liverpool Law Clinic. (As of August 2024, the SEND section of its website says it is currently closed for new enquiries and will re-open enquiries when the staff have capacity to do so.)

Also read:

Browse the SNJ website

Don’t miss a thing!

Don’t miss any posts from SNJ – simply add your email address below. You must click the link in the confirmation email you’ll receive to activate your free subscription.

You can also keep up with us by following our

WhatsApp Channel!

Want more? Be an SNJ regular donor!

SNJ is a non-profit and everyone who writes here does so voluntarily. We need your support to help us with costs by donating once or as a regular patron. Find out more here

About
Latest Posts

Follow SNJ

Special Needs Jungle

Special Needs Jungle at Special Needs Jungle

Special Needs Jungle was founded in 2008 as a personal SEN blog by Tania Tirraoro. It is now a multi-author, award-winning site covering special needs, disability, mental health and rare conditions in children & young people birth-25 years.

Follow SNJ

Latest posts by Special Needs Jungle (see all)