EH v Kent County Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Sullivan,Lord Justice Patten,Lady Justice Arden |
| Judgment Date | 21 June 2011 |
| Neutral Citation | [2011] EWCA Civ 709 |
| Date | 21 June 2011 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2011/0136 |
[2011] EWCA Civ 709
IN THE HIGH COURT OF JUSTICE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)
UPPER TRIBUNAL JUDGE H. LEVENSON
[2010] UKUT 376 (AAC)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lady Justice Arden
Lord Justice Sullivan
and
Lord Justice Patten
Case No: C3/2011/0136
David Wolfe (instructed by Levenes Solicitors) for the Appellant
Clive Rawlings (instructed by Kent County Council) for the Respondent
Hearing date: 19 th May 2011
Introduction
This is an appeal against the decision dated 19 th October 2010 of the Upper Tribunal (Administrative Appeals Chamber) ("UT") dismissing the Appellant's appeal against the decision dated 18 th September 2009 of the First-tier Tribunal (Health, Education and Social Care Chamber) ("FtT") in respect of a statement of special needs for a child referred to as George ("GM") in the two decisions.
Background
The Appellant, EH, is GM's grandmother. It is unnecessary to set out GM's special needs, they are fully described in the two decisions. The Appellant contends that those needs should be met at an independent school ("school F"). The Respondent contended that GM's needs could be met at a mainstream maintained school ("school H").
The FtT concluded that either school would meet GM's needs. It therefore had to consider whether the general principle that pupils are to be educated in accordance with the wishes of their parents (in this case, EH, his grandmother) was compatible with the "avoidance of unreasonable public expenditure", there being no suggestion that placing GM at school F would be incompatible with the provision of efficient instruction; see section 9 of the Education Act 1996 ("the 1996 Act") as amended by the Schools Standards and Framework Act 1998 ("the 1998 Act") which provides:
"In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State and local authorities shall 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 the provision of efficient instruction and training and the avoidance of unreasonable public expenditure."
When dealing with this issue, the FtT concluded that the annual cost of GM's placement at school F would be £14,625. The Respondent contended that further annual travel costs of £9,380 would be incurred, but this additional cost was disputed by the Appellant. In paragraph 33 of its decision the FtT said:
"33. The annual cost to the authority of George's placement at [school H] would be £2,899 (the Age Weighted Pupil Unit) and there would be further transport costs of £3,315 per year."
The FtT rejected the Appellant's submission that there would be further costs by reason of, for example, additional staff being required to meet GM's needs, saying in its conclusions K, N and P:
"K. The Tribunal accepted the submissions of Mr. Rawlings as to the effect of the formulae used for the delegation of funds by the authority to [school H] and the way in which provision would be made for George at [school H] using its delegated funds. The Tribunal therefore concluded that it was not constrained by the decision of Underhill J in Coventry City Council v Special Educational Needs Tribunal and Browne [2007] EWHC 2278; [2008] ELR 1 to find that additional costs should be added to the Age Weighted Pupil Unit so as to produce, for the purposes of proper comparison, a significantly higher figure for the cost of placing George at [school H]. It follows that, even accepting that the cost of transporting George to and from [school F] could be nil, it would be significantly more expensive to place George at [school F]
N. George's difficulties do not make it necessary for him to receive specialised tuition and support across the curriculum, throughout the school day from teachers qualified to teach pupils with specific learning difficulties. His needs are complex and varied but the [school H] have wide experience and will be able to meet the challenges presented by George's varying abilities in different areas.
P. The Tribunal was satisfied …….. that George's needs can be met at [school H]. It follows that it would not be compatible with the avoidance of unreasonable public expenditure to place George at [school F] in accordance with his grandmother's expressed preference."
On appeal to the UT it was contended that the FtT 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 (" Oxfordshire"), Coventry City Council v Special Educational Needs and Disability Tribunal and Another [2007] EWHC 2278 (Admin) [2008] ELR 1 (" Coventry"), and Slough Borough Council v Special Educational Needs and Disability Tribunal and Others [2010] EWCA Civ 668 [2010] ELR 687 (" Slough"), the UT rejected that contention and dismissed the appeal. The UT gave the parties an opportunity to make written submissions on Slough, which was decided on 15 th June 2010, after the UT's oral hearing of the appeal on 11 th May 2010.
There is only one ground of appeal against the UT's decision:
"The UT erred in law in its approach to the decisions in Slough and Oxfordshire including in particular, in holding that the FtT did not need to consider the real, full or notional per capita cost of a placement (and was concerned only with the marginal cost)."
When granting permission to appeal Stanley Burnton LJ observed that this Court should address the apparent inconsistency between the two decisions in Oxfordshire and Slough.
It is sensible to start with the decision in Oxfordshire. Giving the judgment of the Court, Sedley LJ identified the issue before the Court in paragraph 4 of his judgment.
"The problem posed by this appeal, ……… can be stated in a narrow and a broad form. Put narrowly, it is whether in making a comparison between two appropriate schools, one an independent specialist school, the other a mainstream LEA school with a specialist unit, the cost of the latter is to be taken as the global cost of LEA provision (either in total or for the school in question) divided by the relevant number of pupils, or simply the additional budgetary cost of placing the child there. In its broader form, it is whether the cost of placing a child in the state sector should be taken to be an individual fraction of the global cost of local state provision, or whether that provision is to be regarded as given and the relevant expenditure quantified as the additional amount which the placement will cost the LEA."
The fees for the school preferred by the childs' parents were £16,800 per annum. The Tribunal considered that the annual cost of placing the child at school L, the chosen by the Local Education Authority ("LEA") would be as follows:
| A | Learning support assistant (10 hours) | £2,473 |
| B | Age weighted pupil unit (AWPU) cost | £2,076 |
| C | Teacher for the deaf (5 hours) | £5,500 |
| D | Transport | £4,000 |
| Total | £14,049 |
The Tribunal concluded that the annual cost differential of £2,651 was outweighed by the educational advantages of the school preferred by the parents and ordered the LEA to amend the statement to name that school. It was submitted on behalf of the LEA that the Tribunal had understated the extent of the cost differential because it had erred in including items c and d:
"11. Ms Karen Steyn for the LEA submits that the SENT erred in law by including in the cost of placing M at school L two elements (items c and d above) which were going to be incurred by the LEA whether he was placed there or not. The teacher of the deaf was on the staff of the hearing-impaired unit and would be paid the same regardless of whether or not M joined the unit. The taxi was already being used to carry two children to the school, and to add M to its passengers would cost the LEA no more. These elements she contrasts with the two genuine on-costs, items a and b. A personal learning support assistant was going to be needed for M in order to help him to cope with the mainstream part of his schooling if he went to school L. And the AWPU, a capitation fee paid to a maintained school by the LEA for each pupil placed there, would likewise be incurred only if M went there. If she is right about this, as we think she is, her other complaint of inadequate reasons becomes otiose."
Paragraph 12 of the judgment summarises the response given on behalf of the parents:
"12. Mr John Friel, for M's parents, points out that there is no prescribed formula for determining unreasonable public expenditure for the purposes of s 9. As the judge held, it is a matter for the expert judgment of the SENT. Thus, says Mr. Friel, SENTs can and do fractionalise the entire country or borough education budget to arrive at the cost of educating a child in the state system. This exercise may be based simply on the annual running costs; or it may equally legitimately include the amortised cost of school buildings and so forth. It is a matter for the SENT in each case."
The Court did not accept Mr. Friel's submission. In paragraph 15 of the judgment Sedley LJ said:
"It seems to us that Mr Friel's argument cannot be right, at least in the open-ended form in which he advances it. It is of course true that unreasonable public expenditure is not a term of legal art. But neither is it, in its present context, a protean concept capable of producing opposite outcomes on the same facts and figures depending on the individual tribunal's choice of accountancy method. In our judgment the chief object of the last part of s 9 is to...
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