EH S 3030 2009
| Jurisdiction | UK Non-devolved |
| Judge | Judge H. Levenson |
| Judgment Date | 19 October 2010 |
| Neutral Citation | 2010 UKUT 376 AAC |
| Subject Matter | Special educational needs |
| Respondent | Kent County Council |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | S 3030 2009 |
| Appellant | EH |
[2011] AACR 36
(EH v Kent County Council (SEN)
[2011] EWCA Civ 709)
Judge Levenson HS/3030/2009
19 October 2010
CA (Arden, Sullivan and Patten LJJ)
21 June 2011
Special educational needs – special educational provision – naming school – unreasonable public expenditure – calculation of cost at maintained school
The appellant was the grandmother of a child with special needs. She appealed against the naming of a maintained school in his statement, contending that a specific independent school would better meet his needs. The First-tier Tribunal concluded that either school would meet his needs. Applying section 9 of the Education Act 1996 as amended, it held that it would not be compatible with the avoidance of unreasonable public expenditure to place the child at the independent school in accordance with his grandmother’s wishes. It found that that the annual cost to the local authority of a placement at the independent school would be £14,625 (exclusive of any travel costs) and the annual cost of a placement at the independent school would be £2,899 (the Age Weighted Pupil Unit (AWPU)) plus transport costs of £3,315 per year, having rejected the appellant’s submission that there would be further costs by reason of additional staff being required to meet the child's needs. On appeal to the Upper Tribunal it was contended that the First-tier Tribunal had adopted an erroneous approach to the question of public expenditure. Having considered a number of authorities, including Oxfordshire County Council v GB and Others [2001] EWCA Civ 1358; [2002] ELR 8, Coventry City Council v Special Educational Needs and Disability Tribunal and Another [2007] EWHC 2278 (Admin); [2008] ELR 1 and Slough Borough Council v Special Educational Needs and Disability Tribunal and Others [2010] EWCA Civ 668; [2010] ELR 687, the Upper Tribunal rejected that contention, holding that there was no real inconsistency between Oxfordshire and Slough, and dismissed the appeal. The appellant appealed to the Court of Appeal, contending that the Upper Tribunal had erred in law in its approach to the decisions in Slough and Oxfordshire including in particular, in holding that the First-tier Tribunal did not need to consider the real, full or notional per capita cost to the school of a placement and was concerned only with the marginal cost to the local authority. It was argued that the only proper measure of additional public expenditure was the expenditure of the school, by reference to an analysis of its accounts.
Held, dismissing the appeal, that:
- there can be “public expenditure” for the purposes of section 9 at either or both stages of the process: when the local authority allocates public funds to the school, and when the school spends those public funds (paragraph 25)
- Coventry and Slough were rejecting extreme submissions to the effect that the delegated arrangements between the local authority and the schools meant that there was no additional cost to the local authority, and neither case was authority for the broad proposition that the First-tier Tribunal must always focus on the school’s accounts to the exclusion of the local authority’s budgetary arrangements ((paragraph 26)
- in accordance with the judgment in Oxfordshire the exercise to be carried out by the First-tier Tribunal when calculating the cost to public funds of sending a child to a maintained school was to determine what additional burden would be placed on the local authority's budget (paragraph 28)
- Oxfordshire and Slough are consistent in that they both demonstrate that the question whether placing a child at a particular school would cause “unreasonable public expenditure” should be approached by the First-tier Tribunal in a common sense manner on the basis of whatever evidence it considers most helpful in resolving this issue in any particular case (paragraph 29, 32);
- the local authority’s budgetary arrangements for an individual school will usually be a sensible starting point and if those arrangements make provision for the payment of an AWPU to the school there is no reason why the First-tier Tribunal should not accept that the AWPU, together with any additional costs specifically incurred in respect of the child in question, are a fair reflection of the cost to the public purse of educating the child at that school. Examples of such costs were transport costs or the costs of therapy or learning support if an additional therapist or learning support assistant had to be employed by the school, or if an existing therapist or assistant had to be paid to work additional hours (paragraph 30);
- it should only be in those cases where there is no AWPU payment by the local authority or where the First-tier Tribunal is satisfied that, for some cogent reason, the AWPU plus any additional costs do not fairly reflect the cost to the public purse of placing the child in a particular school, that the First-tier Tribunal would consider it necessary to adopt some other method of calculating the public expenditure involved in that placement for the purposes of section 9 (paragraph 31).
DECISION OF THE UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)
Decision
1. This appeal does not succeed. Having granted permission to appeal to the Upper Tribunal on 10 December 2009, I now confirm the decision of the First-tier Tribunal (Health, Education and Social Care Chamber) made on 18 September 2009 (after a hearing on 11 September 2009) under reference 09-00984, on an appeal in respect of a statement of special educational needs.
Hearing
2. I held an oral hearing of this appeal on 11 May 2010. The appellant (the grandmother of the child in question, to whom I shall refer as “George”) was represented by David Wolfe of counsel, instructed by Levenes, solicitors. The respondent local education authority (the authority) was represented by Clive Rawlings of counsel.
3. On 16 June 2010, as requested by the appellant, I directed that the parties be given an opportunity to make written submissions on the effect of the decision of the Court of Appeal in Slough Borough Council v Special Educational Needs and Disability Tribunal and Others [2010] EWCA Civ 668; [2010] ELR 687 (Slough), issued on 15 June 2010. Final written submissions were received by the Upper Tribunal on 24 August 2010.
Background
4. George was born on 19 October 1997. He is a child with special educational needs and in respect of whom the respondent local education authority has maintained a statement of special educational needs as from 18 July 2007. The First-tier Tribunal described him as articulate and communicative with average academic potential. However, he is impulsive, has difficulties with concentration and in acquiring literacy skills, has low self esteem and is often anxious (leading to some “bizarre and apparently obsessive requirements”). He has been diagnosed as having attention deficit hyperactivity disorder (ADHD) and dyslexia.
5. George attended a maintained mainstream primary school until July 2009, although from October 2006 there was a prolonged period of absence followed by a mixture of school and home tuition. On 12 May 2008 the Special Educational Needs and Disability Tribunal ordered an amendment of the statement but confirmed the placement at the same primary school.
6. On 13 February 2009 the authority issued an amended statement naming school H, a mainstream maintained school, as the appropriate school from September 2009. On 3 April 2009 George’s grandmother appealed to the Health, Education and Social Care Chamber of the First-tier Tribunal against the contents of the statement. The tribunal considered the matter at a hearing on 11 September 2009.
7. Mrs Y, the director of learning support at school H, wrote to the authority to the effect that the school would be unable to meet the requirements of George’s very prescriptive statement while at the same time providing an appropriate inclusive educational experience. She subsequently told the First-tier Tribunal that this was on the assumption that the school would have to withdraw George from classes for up to 20 hours weekly (this had been done during year 6 at the primary school for 11 or 12 hours weekly) but she now understood that withdrawal would only be required for three sessions per...
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