CM HS 169 2011
| Jurisdiction | UK Non-devolved |
| Judge | Judge C G Ward |
| Judgment Date | 01 June 2011 |
| Neutral Citation | 2011 UKUT 215 AAC |
| Subject Matter | Special educational needs |
| Respondent | London Borough of Bexley |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HS 169 2011 |
| Appellant | CM |
[2012] AACR 4
(CM v London Borough of Bexley (SEN)
Judge Ward HS/169/2011
1 June 2011
Special educational provision – naming of school – parental preference – whether general obligation to have regard to parental preference operates independently of obligation to comply with parental preference in special educational needs cases – meaning of “public expenditure”
The mother of a child with special educational needs had appealed to the First-tier Tribunal against the proposed placement by Bexley of the child in a maintained special school within the borough. The mother had expressed a preference for a special school maintained by the Royal Borough of Kensington and Chelsea. If the parental preference were followed, Kensington and Chelsea would recoup the cost from Bexley. Paragraph 3(3) of Schedule 27 of the Education Act 1996 confers a right on the parent of a child with special educational needs who is seeking a place at a suitable maintained school to have their preference complied with, provided the placement would not be incompatible with the efficient use of resources. Section 9 of the 1996 Act creates a duty to have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents so far as that is compatible with (inter alia) the avoidance of unreasonable public expenditure. The First-tier Tribunal found that there would be no cost to the public purse as a whole in the child attending the out of borough school and, without setting out its reasoning, that both schools were suitable, but considered that the decision of the House of Lords in B v London Borough of Harrow and others [2000] 1 WLR 223; [2000] 1 All ER 876; [2000] ELR 109 was directly in point and binding, and that the detriment to the local authority’s resources under paragraph 3(3) of Schedule 27 was sufficient to determine the appeal against the mother. The tribunal did not attempt to say in any detail how the Harrow case affected section 9. The mother appealed to the Upper Tribunal.
Held, allowing the appeal, that:
- the natural reading of Lord Slynn’s remarks in Harrow about section 9 is that, in a case falling within paragraph 3(3), although section 9 continues to exist it has little or no independent function or operation distinct from the paragraph 3(3) test. However section 9 was not in issue in that case and those remarks did not form part of the ratio of the case, although even as obiter dicta, the remarks of a unanimous House of Lords clearly merit due respect (paragraphs 30 to 37)
- the Upper Tribunal is bound to follow Harrow as to it being the resources of the placing authority that are relevant under paragraph 3, but “public expenditure” in section 9 has a different meaning from “resources” in paragraph 3(3) and is not restricted to the resources of the placing local authority: O v Lewisham [2007] EWHC 2130 and K v LB Hillingdon [2011] UKUT 71 (AAC); [2011] AACR 31 followed (paragraphs 37, 48 and 49)
- Lord Slynn’s remarks in Harrow are to be taken as a recognition that, in the light of the weakness of section 9, it will usually be paragraph 3(3) that will be determinative in cases where a place in a maintained school is sought. However, the distinct and separate exercise in section 9 must still be carried out in such cases. That is a rather broad discretionary exercise, to which the preference of the mother (and, in particular, the reasons for that preference: per Sedley LJ in C v Buckinghamshire County Council and the Special Educational Needs Tribunal [1999] EWCA Civ 926) is material, among other considerations. Given the breadth of that discretion, it was not possible to say that the tribunal’s error in failing to apply section 9 was not material (paragraphs 50 to 60);
- while section 9 must be properly applied as it stands to the exercise of the duty of naming a school imposed on the local authority by section 324, that did not exclude consideration of the financial impact on Bexley or any other relevant consideration, notwithstanding that there was in this instance no additional “public expenditure”, unreasonable or otherwise, involved (paragraphs 61 and 62).
The judge referred the case to the First-tier Tribunal (Health, Education and Social Care Chamber) for rehearing by the same tribunal.
DECISION OF THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)
Mr David Wolfe and Ms Tessa Hetherington of counsel, instructed by Messrs Maxwell Gillott, appeared for the appellant.
Mr Richard McManus QC and Ms Anna Bicarregui of counsel, instructed by Legal Services, London Borough of Bexley, appeared for the respondent.
Decision:
1. There is to be no publication of any matter likely to lead members of the public directly or indirectly to identify the child who is the subject of the appeal: rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698) applies.
2. The appeal on a point of law is allowed (though, in the usual way, this carries no implications for the eventual outcome when the case is remitted.) The decision of the First-tier Tribunal dated 9 December 2010 in case 09-02066 involved the making of an error of law and is set aside. The case is referred to the First-tier Tribunal (Health, Education and Social Care Chamber) for rehearing in accordance with the law as set out in the Reasons below. The re-hearing shall be conducted by the same tribunal unless to do so would unavoidably result in unreasonable delay, in which case the tribunal shall be wholly differently constituted.
3. On the assumption that the re-hearing will be conducted by the same tribunal, I direct that it must apply section 9 of the Education Act 1996 (for which purpose it shall make any necessary further findings of fact) and shall then (having considered such further issues, if any, as may emerge from the evidence then before it) make a fresh decision as to the school to be named in Part 4 of the statement. Other than in these respects, it will be open to the tribunal, if it sees fit, to adopt relevant parts of its decision of 9 December 2010.
4. Liberty to apply for further directions in the event that the remitted case cannot be heard by an identically constituted tribunal without unreasonable delay, and generally.
REASONS FOR DECISION
1. This case concerns the education of V, a girl now aged 13. Her mother wishes her to attend the B school and the local authority the A school. Both are maintained special schools. The A school is maintained by the respondent local authority (Bexley). The B school is maintained by the Royal Borough of Kensington and Chelsea (RBKC).
2. The First-tier Tribunal in its decision of 9 December 2010 found as fact that the B school was pre-funded for 75 places but that there was an agreement that the admission of an additional five pupils during the course of an academic year carried no additional cost. There was a place available for V as one of the additional five pupils. The costs of transport would be nil or minimal. RBKC recoups costs from other local authorities that place children at B school, including a five per cent fee. The cost to Bexley if V were to attend the B school would be £25,500, of which some £1,250 would be attributable to the five per cent fee.
3. The tribunal held, and there is no challenge to it, that “factually it is clearly right that there is no additional public expenditure in [V] attending [B school]. Even the 5 per cent extra charge is paid by one LA to another so there is no loss to the public purse as a whole.”
4. The suitability of both schools was not in dispute. The tribunal held that “as we set out below we see little, if any, educational benefit of placing [V] [in school B] compared to [school A].” In fact, the tribunal does not “set out below” as it said it was doing. While this does not feature as a ground of appeal, I consider that it is nonetheless important when it comes to the disposal of this case for the reasons set out at [60] below.
5. The case thus presents particularly acutely the question of the interaction between two provisions, each concerned with parental preference: paragraph 3(3)(b) of Schedule 27 to the Education Act 1996 and section 9 of that Act. The tribunal considered that the decision of the House of Lords in B v London Borough of Harrow and others [2000] 1 WLR 223; [2000] 1 All ER 876; [2000] ELR 109 was directly in point and binding. The detriment to the local authority’s resources under paragraph 3(3) of Schedule 27 was sufficient to determine the appeal against V’s mother. The tribunal did not attempt to say in any detail how the Harrow case affected section 9....
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