Millie Elliott

Covid-19 : The impact of school closures on special educational needs provision

The government has set out their intention to protect the most vulnerable children through this challenging period. For children with education, health and care (EHC) plans (approximately 271,000 pupils), the government has made clear that education placements will continue to deliver elements of (or all) of their EHC plan and if deemed necessary to do so, the child will remain in school. However, over a million children with special educational needs are without an EHC plan. Parents whose children have been refused an EHC plan are ineligible for such support - the importance of children having their needs properly recognised could not be more stark!

Millie Elliott, a pupil at College Chambers looks at the recent Court of Appeal judgment Nottinghamshire County Council v SF and GD (Rev 1) [2020] EWCA Civ 226 and how the decision may affect the decisions of local authorites at this time. 

One such child was HD, a seven year old boy with autism spectrum disorder, dyspraxia and hyper mobility who was the subject of the . HD attended a mainstream school which the local authority argued was successfully identifying and meeting his needs and he was progressing sufficiently well. Thus, they refused the provision of an EHC plan under the overarching premise of ‘necessity’ (or alleged lack thereof).
The parents appealed to the First Tier Tribunal (FtT) arguing that an EHC plan was necessary where special educational provision was being made to a child in a mainstream school but not available to the students more generally. The FtT decided it was necessary for special educational provision to be made for HD in accordance with an EHC plan ( upheld by the Upper Tribunal). Nottinghamshire appealed.
For the first time, the Court of Appeal considered the meaning and application of ‘necessary’ in section 37(1) of the Children and Families Act 2014 (“CFA”).

Giving judgment of the court, the Senior President of Tribunals, Sir Ernest Ryder clarified that “necessary” is to be given its common and plain meaning - it’s construction is largely unproblematic. Essentially, the question was whether a reasonable tribunal could conclude that an EHC plan was necessary for HD on the facts of this case. The court rejected the appeal, since “the elements identified may well have been marginal and another court or tribunal may have come to a different judgment on the facts but that is not a sufficient reason for this court to interfere with a second appeal”.

Of greatest significance in the present context is the value of EHC plans in establishing essential support for children and parents. There will be many families left without vital support whose children’s education, safety and wellbeing are compromised by virtue of the limited government support afforded to children without EHC plans. The case of HD highlights the potential for parents to successfully challenge the decisions of the local authority and secure essential support through an EHC plan. It is anticipated that many more parents will now seek to do so.

College Chambers has a team of Special Education Needs (SEN) barristers who have experience in acting for both local authorities and schools and for parents and charities. The team have detailed knowledge in this area of law and understand the demands of cases involving pupils with SEN.

To find out more about our barristers please contact the clerks or call on 023 8023 0338 or email clerks@college-chambers.co.uk.

COVID-19 - SEND TRIBUNALS

The SEND Tribunal have responded quickly to the current circumstances moving to fully digital working with the majority of Tribunal hearings proceeding as listed. Early indications suggest that this has been a success with the Tribunal even anticipating an increase in their capacity to hear cases.

Whilst the new age of digital hearings has been treated with trepidation by some, this success is much welcomed news to our SEND team who are experienced representing parties remotely. In accordance with the Tribunal’s guidance, here are our top five tips:

1. BUNDLES: Ensure you have access to the Viewpoint folder. This provides a forum for the Local Authority to share documents with the parties. If you need assistance with accessing the Viewpoint folder, contact the Tribunal by email in advance. Where possible, the Local Authority should continue to send parties paper bundles. 
2. BEFORE THE HEARING: No specialist equipment is required, you can join using a smartphone, tablet device, laptop or PC. Test your equipment and connection in advance of the hearing with Video Hearing Support. Ensure you are in a private space where you cannot be overheard. 
3. EARLIER HEARINGS: If you would like your appeal to be heard at an earlier date, contact the other party to discuss availability and send the list of suitable dates to the Tribunal who are giving priority to cases that have previously been postponed. 
4. DECISIONS: Give consideration to whether your case could be decided on paper. In all SEND cases, this will be canvassed with the parties where it is considered just and proportionate. 
5. EARLY NEUTRAL EVALUATION (“ENE”): In some types of SEND appeals, utilising ENE (a provisional indication on the merits by a Judge/a Judge and specialist member) will be encouraged. Think carefully about whether this would benefit your case and take advice if you are unsure. 

If you need further advice or support with your case before the SEND Tribunal we are very happy to talk you through our remote services and explain in more detail how we can help you or your client.   You can e-mail us on clerks@college-chambers.co.uk or call on 023 8023 0338.

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Instructing Solicitor

I have had the pleasure of instructing Millie on complicated family matters and matters involving domestic abuse. Millie has an empathetic air that puts vulnerable clients at ease but also consistently displayed rigorous attention to detail and committed preparation.

I was very impressed with her work from the very first case and have since instructed her several times. I have  also recommended her to colleagues. I have no hesitation in recommending her as a talented and committed professional.

Zoe Sayer, Campbell Hooper & Co

I would highly recommend Millie Elliott. She quickly absorbed details of a complicated case and was able to reassure vulnerable and anxious clients, whilst giving clear and concise advice. Throughout, she has been a pleasure to instruct and work with. I am extremely grateful for her continued advice and assistance.

Instructing Solicitor

Millie's extensive knowledge and calming presence make her invaluable when assisting Family Law clients.  Every client I have known to be represented by Millie has gone on to ask for her again and for good reason.  Millie is thorough in her approach but, maybe more importantly, is very human when dealing with emotive and complex matters.  It is this that makes her stand out as an obvious first choice of Counsel.