VS and RS v Hampshire County Council: [2021] UKUT 187 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Ward on 4 August 2021.
Read the full decision in .
Judicial Summary
There is a qualitative difference between what the First-tier Tribunal is empowered to do in relation to educational provision, where its decisions may create an enforceable right, and its power to make recommendations under the Special Educational Needs and Disability (First-tier Tribunal Recommendations Power) Regulations 2017/1306, whose consequences are limited to requiring the steps set out in those Regulations. The authorities on what is involved in “specifying” provision, helpfully summarised in Worcestershire CC v SE [2020] UKUT 217 (AAC), demonstrate that the requirement to “specify” is to be operated flexibly. Determining what has to be specified in a recommendations case needs to reflect that the First-tier Tribunal is dealing with a matter which is not directly enforceable, where a change in provision would be unappealable and in respect of which the body to whom implementation would fall (in health cases) is not a party before it. Authorities such as E v Rotherham MBC [2001] EWHC Admin 432 cannot simply be read across to apply to the exercise of the recommendations power. While the 2017 Regulations cannot be a panacea for all difficulties which may affect the health and social care needs of, or provision for, a child or young person with Special Educational Needs, recommendations by the specialist panel may nonetheless be helpful, but the opportunity to make them may be undermined if too exacting a legal standard is imposed as to the degree of specificity or evidential foundation required.