In London Borough of Islington v A Parent [2024] UKUT 252 (AAC) Upper Tribunal Judge Stout (building on the decision in AJ v London Borough of Croydon [2020] UKUT 246 (AAC)) has clarified: (1) the obligations imposed on the First-tier Tribunal (HESC) (“FTT”) when exercising its inquisitorial jurisdiction to determine appeals concerning Education Health and Care Plans and (2) the way in which the ‘burden of proof’ principle operates in this jurisdiction.

Judge Stout held that:

• The FTT erred in law by placing a formal burden of proof on the Local Authority. The FTT’s task on appeal is to “stand in the local authority’s shoes” and apply section 39(4) of the Children and Families Act 2014 properly to the facts of the case before it, exercising its inquisitorial jurisdiction to ensure it has the necessary evidence on which to fairly determine the appeal: [54]-[60].
• The FTT did not, at the hearing, explain that it was unable to make findings as to the cost of either placement nor did it canvas with the parties what should be done about that: [53]. Fairness required the FTT to put its concerns to the Local Authority at the hearing (or, if it thought of the concerns only in the course of deliberation, to give the Local Authority a further opportunity in writing or at an adjourned hearing to address those concerns): [63].
• The school of parental preference in this case fell in another geographical area. The FTT failed to properly consider its case management powers to (1) require the parties and/or the third party Local Authority and school to provide further evidence and/or (2) order a witness from the third party Local Authority or school to attend the hearing: [63]. Such powers were available to the FTT, but not the Local Authority responsible for maintaining the EHC Plan: [61].
• On the facts of this case, it was perverse for the FTT not to adjourn the hearing for further evidence, since the prejudice to the parent and child would have been minimal compared to the potential prejudice to the Local Authority to fund the child’s placement at a school at very significant additional cost to the public purse: [70].
• The FTT’s task is to find out what the difference (or approximate difference) is between the costs of the two placements on the balance of probabilities. The fact that the FTT considers those costs to be unreasonable or inadequately explained will not normally be a basis for finding that those are not the actual costs. That is especially so where the school in question is not one the Local Authority is responsible for funding: [81].
• The FTT failed to make any determination about the suitability of the school preferred by the Local Authority. On the parent’s case, those were all matters that were in dispute. The Upper Tribunal gave guidance reminding the FTT that it should normally make findings on the evidence it hears so that, in the event of an appeal, cost and public resources do not need to be wasted in an unnecessary rehearing. Dealing with a question of costs alone is the sort of issue that could normally be remade at Upper Tribunal level. The FTT’s decision not to complete its fact-finding function in this case, however, meant that the appeal needed to be remitted: [87]-[88].

The judgment can be found here.

Benjamin Harrison, of Serjeants’ Inn Chambers, was instructed by Hannah Connors on behalf of the successful appellant.