EOTAS: Legal Insights from LC and RC v Hampshire County Council [2023] UKUT 281 (AAC)


The Upper Tribunal case LC and RC v Hampshire County Council [2023] UKUT 281 (AAC) centred on the dispute over Section I of an Education Health and Care Plan (EHCP), specifically the criteria for naming a school. The disagreement arose between the suitability and appropriateness tests contained in sections 39 and 40 of the Children and Families Act 2014 respectively; section 40 addresses – “Finalising EHC plans: no request for particular school or other institution”. The appellant, a parent of a child named “O,” sought to leave Section I blank, opting for education otherwise than in school (EOTAS). In contrast, the local authority advocated for naming “C School” in Section I.


The core argument revolved around the nuanced difference between “suitable” and “appropriate” within the Act. While it was acknowledged that C School was suitable based on age, ability, aptitude, and special educational needs, the parent contended that it might not be appropriate considering broader circumstances beyond these factors.


The Upper Tribunal acknowledged a procedural error by the First-tier Tribunal, which applied the wrong legal test hence it is reasonable to conclude that suitability and appropriateness should not be used interchangeably. However, they deemed this mistake immaterial as it didn’t impact the consideration of welfare and safety risks. Notably, the case prompted some consideration on naming a school when initial provision is outside a traditional setting, emphasising the need to assess transitions, citing NN v Cheshire East Council [2021] UKUT 220 (AAC). Despite not providing a definitive stance on extended transition plans, the judgment highlighted the importance of evaluating attendance requirements during the transition back into school settings.


The decision can be found here:https://www.bailii.org/uk/cases/UKUT/AAC/2023/281.html

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