Q:

12.11 Does the ETW have to listen to the child/young person themselves?

Nodi No-nonsense Guide Wales

Nodi No-nonsense Guide Wales
Authors: Civitas Law education team
01 Nov 2024

A: SenseCheck

  • 1 Yes
  • 0 No
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  • 01 Nov 2024
  • Yes

    Complex

    Yes. The rules require that a statement of case include the views of the child on the issues raised in the appeal; or provide an explanation as to why the views of the child are not included: r. 18 EdTW Regs 2021

    The respondent’s statement of case must also include the views of the child; or provide an explanation as to why it has not established the child’s views: r. 19 EdTW Regs 2021.

    After the ETW has received the appeal application the Secretary to the Tribunal must ask the parties whether any person wishes to attend the hearing to communicate the views and wishes of the child: r. 24 EdTW Regs 2021.  At the hearing this person may give evidence and address the tribunal on the child’s views and wishes: r. 43 EdTW Regs 2021.

    Although the ETW’s rules are drafted slightly differently to the FTT’s.Nodi thinks that the proper approach to the views of the child is likely to be similar. In England, the UT said that the FTT had to expressly deal with a child’s views (albeit not extensively and a paragraph or two should normally be sufficient, or even less where there is no mismatch between the child and parental views): M & M v West Sussex CC (SEN) [2018] UKUT 347 (AAC) para 39-44, 59. In the case of a young person who brings the appeal, the FTT is not under a duty to give reasons for departing from their views over and above why it rejected their appeal: S v Worcestershire [2017] UKUT 92 (AAC) para 71.

    The older and more mature the child, the greater weight the LA (and Tribunal) should place on a child’s views: West Sussex CC v ND [2010] UKUT 349 (AAC) para 33. In the case of TM & SM v Liverpool City Council [2024] UKUT 201 the FTT made an error of law by not having sufficient regard to the views of a 7-year-old. The views of the child are relevant to whether a school is appropriate for them. 

    In St Helens BC v TE and another [2018] UKUT 278 (AAC) para 14, 23, the UT held that it was lawful for the FTT to conclude that a school was not suitable solely by reference to its conclusion that the child “has formed an entrenched and currently intractable opposition to attending [R] school or any mainstream provision” given that it recognised that “his attitude to the proposed placement is part of the significant and complex needs that must be met by the provider” and given EP advice which linked his attitude to his SEN. On the facts (so the UT held) this was not unlawfully giving the child or young person a veto.

    Nodi glossary:  Education Tribunal Wales

    Nodi No-nonsense Guide Wales

    Nodi No-nonsense Guide Wales
    Authors: Civitas Law education team