Special Educational Needs – Education Health and Care Plan (EHC Plan) – a local authority has no power to pay for a child’s health provision where the NHS has refused to do so
The respondents’ daughter had considerable needs. Chailey Heritage School (CHS) offered her a place, conditional upon the local authority paying the education fees and the NHS commissioning body paying the clinical fees. The NHS commissioning body refused to do so, considering the provision to be unnecessary. Eventually, the respondents successfully appealed to the First tier Tribunal (F-tT) against the local authority’s refusal to name CHS. The F-tT accepted that it had no jurisdiction over the specification of health care needs or provision but decided that the local authority would effectively be paying for educational provision. The local authority appealed against that decision to the Upper Tribunal and the issue before it was the division of responsibility between various parts of the public sector for meeting a child’s needs.
Held, allowing the appeal, that:
the clear intention of regulation 12(2) of the Special Educational Needs and Disability Regulations 2014 was that the responsible health commissioning body had the function of determining the health provision to be included in the Education Health and Care plan and that under section 42(3) of the Children and Families Act 2014 it also had the duty to arrange it. Subject to section 21(5) of the 2014 Act health care provision was not the local authority’s responsibility and a local authority had no statutory power to pay for it: East Sussex CC v TW  UKUT 528 (AAC) considered (paragraphs 64 to 66);
even if medical and nursing support was essential for the child to be educated that did not make it special educational provision (paragraph 89);
the specification by the F-tT of CHS in the EHC plan was dependant on mixed funding. The NHS was not prepared to pay its contribution and the local authority had no power to make good the shortfall. For these reasons the F-tT’s decision created an unworkable outcome and disclosed an error of law on the part of the F-tT (paragraph 93).
The judge set aside the decision of the F-tT and referred the case for rehearing before a tribunal consisting of a panel which was either entirely the same as, or entirely different from, the panel whose decision had been under appeal.