Appealing a decision by the First-tier Tribunal (FTT) - how far does the Tribunal have to explain the reasons for its decision? Clarity provided in ME v London Borough of Southwark [2017] UKUT 73 (AAC)

The Upper Tribunal (UT) in this case allowed an appeal against a decision of the FTT, finding that it had not fully explored the relationship between ss 33 and 39 of the Children and Families Act 2014 (CFA) and had not adequately explained how and why the Tribunal made its decision.

Sections 33 and 39 relate to the naming of the placement in the Education, Health and Care Plan (EHCP).

Background of the case

The case concerned the EHCP for ‘O’ who had autism, severe language delay and global developmental disorder. He was functioning at P levels and had 1:1 support with limited inclusion in class teaching. For the most part he was unable to function independently.

The case arose from the naming of secondary provision on O’s EHCP ahead of secondary transfer. The local authority (LA) named a special school in his Plan. O’s parents requested a mainstream school. The FTT dismissed the appeal but gave permission to appeal. The case was heard by the UT which set aside the FTT’s decision requiring the FTT to re-hear the appeal by a different panel.

In considering the findings of the FTT, the UT looked at ss 33 and 39 CFA. It summarised both sections as follows:

Section 39 CFA

If parents want their child to attend a specific school, whether mainstream or not, s39 applies. The LA must agree to their request unless one or both of two conditions are satisfied (s39 (3)):

  1. That the school is unsuitable (s39(4)(a)) and/or
  2. That it would be incompatible with the efficient education of others or with the efficient use of resources (s39 (4) (b)

If the LA does not agree to the parents’ requested school based on (1) and/or (2) above, then it must identify a school or type of school that is appropriate for the child (s39(5)). The issue then has to be considered further under s33 CFA.

Section 33 CFA

The section applies in two circumstances. It applies if the parents have not asked for their child to attend a specific school. It also applies if they asked, but the LA has decided not to agree to the request under s39. In either case, the LA must secure that the child be educated in a mainstream school unless one or both of two conditions are satisfied (s33 (2)):

  1. It is not what parents want (s33(2)(a)) and/or
  2. It would be incompatible with the efficient education of others (s33 (2) (b)). But a LA is only allowed to decide that this second condition is satisfied, in respect of either a particular mainstream school or mainstream schools in its area as a whole, if there are no reasonable steps that could be taken to prevent the compatibility.

How the question of placement should be considered

Judge Jacobs found that s39 should be considered first and s33 only applies if the LA does not agree to the parents’ request under s39.

Judge Jacobs went on to consider the meaning of ‘appropriateness’, ‘suitability’ and ‘incompatibility’ in relation to school placement. When considering the test of incompatibility, Judge Jacobs advised the test to be applied is whether the impact of attendance would be ‘so great as to be incompatible with the provision of efficient education’ (Hampshire County Council v R and SENDIST [2009] ELR 371 at [47]). It is not enough to show that attendance would have an impact. It is necessary to go a step further and show what that impact would be and then consider whether that would be incompatible.

Judge Jacobs said that ‘efficient education’ ‘indicates a standard, not the very highest desirable standard or the very basic minimum but something in between… Although ‘incompatible’ is indeed a very strong word, indicating that there is no way of avoiding the admission of the single child involved reducing the quality of education provided to some other children with whom he would be educated to below that standard, its force must be applied in the context of that standard’

When considering ‘efficient education of other children’, the circumstances of only the child in question and other children who are already known or predicted to be in the category of those who would be educated with the child, will be relevant. The overall context of the school will also be relevant but the circumstances of other children who may or may not be admitted (e.g. because of outstanding appeals to the Tribunal) cannot be taken into account. It will often be necessary for the Tribunal to identify exactly what difference it finds that the admission of the single child would make before it can go on to make a judgment about the degree of that impact.


Judge Jacobs found the FTTs reasons for dismissing O’s appeal inadequate. He gave three reasons:

  1. The FTT had failed to explain how and why it had made its decision. At paragraph 30 of his judgment, he states that ‘One of the functions of reasons is to explain to the parties how and why the tribunal made its decision. Another is to demonstrate that the tribunal had acted lawfully under the legislation.’
  2. The FTT had not shown how it dealt with the necessary steps in the analysis. The FTT’s reasons gave conclusions rather than a structured analysis.
  3. The FTT failed to take account of the duty to specify and make provision for meeting O’s SEN. It had appeared to limit itself to just the issue of placement, which was wrong. It was not possible to separate the issue of provision from the application of s33 and consideration of ‘reasonable steps’ in relation to placement.

The FTT’s decision was set aside and the FTT was required to re-hear the appeal by a different panel.

What we can learn from this is to make sure the FTT has both explained its application of the law and applied it correctly in its decision particularly in appeals against the placement named on an EHCP.

The full decision can be read here.

I am so happy at the outcome, I don't think we would have had such a comprehensive service from any other law firm, and you took the worry away...I do not regret a single second of the whole process, apart from the bit before you got involved. 

James' mother, Boyes Turner client

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