(1)Hammersmith & Fulham LBC (2) Hammersmith & Fulham LBC (3) O (4) H HS 5656 2014
| Jurisdiction | UK Non-devolved |
| Judge | Judge E. Mitchell |
| Judgment Date | 17 September 2015 |
| Neutral Citation | 2015 UKUT 523 AAC |
| Subject Matter | Special educational needs |
| Respondent | (1) L, (2) F, (3) Lancashire C.C., (4) Lancashire C.C. |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HS 5656 2014 |
| Appellant | (1)Hammersmith & Fulham LBC (2) Hammersmith & Fulham LBC (3) O (4) H |
[2016] AACR 18
(London Borough of Hammersmith & Fulham v L and others (SEN)
[2015] UKUT 523 (AAC))
Judge Mitchell HS/5656/2014 & HS/3540/2014
17 September 2015 HS/4981/2014 & HS/5354/2014
Special educational provision – naming of school – whether place funding for children with special educational needs an additional cost under section 9 of the Education Act 1996
In all four cases, a local authority refused to specify in a statement of special educational needs (SEN) the parents’ preferred independent schools. In cases one and two, the authority named a maintained mainstream school with reserved SEN places. In case three, the authority named a maintained mainstream school without reserved places and, in appeal four, a maintained special school. The parents appealed to the First-tier Tribunal (F-tT). In cases one and two, the F-tT found that place funding for reserved SEN places was an additional cost, allowed the appeals and named the parents’ preferred independent schools. The F-tT’s findings meant that, in case one, the independent school was less expensive than the maintained school and, in case two, only £1,500 more expensive per annum. In case three, the F-tT discounted the first £6,000 of SEN funding for the child’s maintained school placement. In case four, the F-tT discounted the £10,000 place funding for the maintained special school. In both cases, the F-tT’s findings meant the parents’ preferred independent school was significantly more expensive than the authority’s preferred maintained school so that placements at the independent schools would constitute unreasonable public expenditure under section 9 of the Education Act 1996 (the 1996 Act). In cases one and two, the local authorities appealed to the Upper Tribunal. In cases three and four, the parents appealed. The principal issue in all four appeals was the treatment of local authority SEN funding in comparing the costs of rival educational placements for the purposes of section 9 of the 1996 Act. Different approaches had been adopted by the different F-tTs involved in these cases. A further important issue in case 4 concerned the appropriate venue for F-tT hearings where a child wishes to participate in the proceedings.
Held, dismissing appeals one and two and allowing appeals three and four and remitting to a differently-constituted F-tT, that:
- generally, a comparative cost analysis of an independent school and a maintained special school, for the purposes of section 9 of the Education Act 1996, was to proceed on the basis that, where the special school had a vacancy, its place funding was not to be treated as an additional cost. The same approach was to be taken when comparing the costs of an independent school with a maintained mainstream school with SEN-reserved places (a specialist unit). In both cases, Age-Weighted Pupil Unit funding (AWPU) was irrelevant. But, a local authority “top-up” funding for the child’s placement was an additional cost to be taken into account: Oxfordshire CC v GB & Others [2001] EWCA Civ 1358; [2002] ELR 8 and EH v Kent CC [2011] EWCA Civ 709; [2011] ELR 433; [2011] AACR 36 (paragraphs 7 and 126)
- where the choice was between an independent school and a maintained mainstream school without reserved places, the AWPU normally represented an additional cost for the purposes of section 9, in accordance with Kent. Further, any additional funding required in order to meet the child’s needs was to be taken into account as required by both Kent and Oxfordshire. If a local authority had some kind of dispensation from the normal requirements of the regulations, or it had a financial scheme that deviated from the funding norm, it must bring it to the attention of the tribunal and the other party. The same applied if the per pupil funding for maintained mainstream schools was greater than the AWPU minimum. That was the sum to be taken as the additional cost, since it was the money that followed the pupil (paragraphs 8 and 127 to 128)
- (obiter) it was potentially an error of law for a F-tT to list cases in venues that precluded the participation of a child who wished to participate and the suitability of venues for SEN and school-related disability discrimination cases should be carefully considered (paragraphs 152 to 153).
DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
Mr Sean Bowers (solicitor advocate, Baker Small solicitors) appeared for the London Borough of Hammersmith & Fulham.
Mr Adam Fulwood (of counsel), instructed by the Council’s legal department, appeared for Lancashire County Council.
Mr David Wolfe QC (of counsel), instructed by Maxwell Gillott solicitors, appeared for F.
Mr Russell Holland (of counsel) appeared for O.
Ms F Slomovic (lay representative) appeared for L.
Ms Foster (lay representative) appeared for H.
DECISIONS
Under section 12 of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal decides as follows:
(1) London Borough of Hammersmith & Fulham v L (Upper Tribunal case no HS/5656/2014): the decision of the First-tier Tribunal of 7 November 2014 (reference no SE/205/14/0006) involved a material error of law but it is not set aside.
(2) London Borough of Hammersmith & Fulham v F (Upper Tribunal case no HS/3540/2014): the decision of the First-tier Tribunal of 17 June 2014 (reference no SE/205/13/00015) did not involve a material error of law. The decision is not set aside.
(3) O v Lancashire County Council (Upper Tribunal case no HS/4981/2014): the decision of the First-tier Tribunal of 17 June 2014 (reference no SE/888/14/00023) involved a material error of law. The decision is set aside. I direct that the appeal is remitted to the First-tier Tribunal for re-hearing before a differently-constituted Tribunal panel. Any further case management directions are to be given by a judge of the First-tier Tribunal.
(4) H v Lancashire County Council (Upper Tribunal case no HS/5454/2014): the decision of the First-tier Tribunal of 25 September 2014 (reference no SE/888/13/00068) involved a material error of law. The decision is set aside. I direct that the appeal is remitted to the First-tier Tribunal for re-hearing before a differently-constituted Tribunal panel. Any further case management directions are to be given by a judge of the First-tier Tribunal.
Under rule 14(1) of the Upper Tribunal (Tribunal Procedure) Rules 2008 (SI 2008/2698) I hereby make an order prohibiting the disclosure or publication of any matter likely to lead to a member of the public identifying any of the children with whom these appeals are concerned. This order does not apply to (a) the children’s parents, (b) any person to whom any parent discloses such a matter or who learns of it through parental publication (and this includes any onward disclosure or publication), (c) any person exercising statutory (including judicial) functions in relation to the children. The children’s real names are not used in these reasons.
REASONS FOR DECISION
Introduction
1. From the perspective of the Upper Tribunal, during 2014 the outcome of special educational needs (SEN) appeals in England, where parents sought independent schooling, started to resemble a lottery. This was certainly not due to lack of care on the part of the First-tier Tribunal. The problem was that different tribunals took very different approaches to quantifying the costs of rival schools (maintained and independent). Yet the tribunals all said their approach was called for by the statutory school funding regime.
2. One approach, which some tribunals thought was compelled by a new school funding regime, results in maintained schools being treated as significantly more expensive. That can tip the balance in favour of independent schooling. The other approach weights the balance towards maintained schools.
3. With the agreement of the parties, these four appeals were consolidated and heard together. These are by no means the only cases raising this issue. Some have been disposed of by the Upper Tribunal on other grounds and some await this decision. I was also informed by the legal representatives at the hearing that inconsistent approaches persist. The approach set out in these reasons avoids that inconsistency.
Structure of these reasons
4. These reasons set out in some detail how the maintained school funding legislation...
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