The Upper Tribunal has allowed an appeal brought by a local authority, after finding the Education Tribunal for Wales “materially erred in law” in the way in which it dealt with expert evidence.
The case in Swansea City And County Council v DE [2026] UKUT 398 (AAC) (19 October 2026) concerned a teenage child with diagnoses of autism spectrum disorder, attention deficit hyperactivity disorder, oppositional defiant disorder and hypermobility.
After placements at two different schools had failed, the council put in place an individual development plan (IDP) dated for the end of March 2025.
The council drew on the expertise of an Educational Psychologist.
In light of her input, the council was not satisfied that the test for additional learning provision (ALP) to be made other than in a school in section 53 of the Additional Learning Needs and Education Tribunal (Wales) Act 2018 was met.
The IDP proposed that the child should return to School A.
Ms DE, the child’s parent, appealed the IDP to the Education Tribunal for Wales (ETW) on several grounds. The ETW allowed Ms DE’s appeal in February 2026.
The ETW ordered the council to amend the IDP in various respects.
The council appealed the ETW Decision to the Upper Tribunal.
The main ground of appeal was that the only expert evidence before the tribunal (from the educational psychologist) was to the effect that it was not inappropriate for the additional learning provision for the child to be made in school, and a transition to mainstream school was possible.
The council argued that there was no proper basis lawfully to reject that evidence. In particular, the council relied on the failure of the tribunal to give the expert witness a proper opportunity to answer their concerns about her evidence, and the absence of adequate reasons for rejecting it.
Considering the case, Lady Poole and Sir Gary Hickinbottom concluded that the tribunal “materially erred in law” in the way in which they dealt with the expert evidence.
They said: “The ETW may use its specialist knowledge when evaluating evidence before it, and deciding what evidence to accept or reject and what reasonable inferences to draw from it. It is not the law that all of the ETW’s findings must be put to the parties for specific comment before a decision is issued.
“However, while the ETW is entitled to reject expert evidence and reach its own conclusions, in a case where there is only one source of expert opinion on a key issue before the ETW, it is likely to be unfair if the ETW’s reservations about the expert’s evidence, and its own alternative findings, have not been put to parties for comment. The rationale for these requirements of procedural fairness is that the ETW may be assisted in reaching a more reliable decision by its provisional views being exposed to scrutiny before they crystallise into findings, and the appearance of justice is also promoted.
“In this case, the ETW erred in law in its approach to the evidence of [the educational psychologist] nd its application of the test in section 53 of the 2018 Act, by behaving procedurally unfairly.”
Permission to appeal was granted, the appeal allowed, the decision of the tribunal set aside, and the matter was remitted to the tribunal for reconsideration.
Lottie Winson
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