Haining v Warrington Borough Council HS 1444 2013
| Jurisdiction | UK Non-devolved |
| Judge | Judge D. Williams |
| Judgment Date | 02 April 2014 |
| Neutral Citation | 2013 UKUT 391 AAC |
| Subject Matter | Special educational needs |
| Respondent | Warrington Borough Council (SEN) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HS 1444 2013 |
| Appellant | Haining v Warrington Borough Council |
THE UPPER TRIBUNAL Appeal No. HS 1444 2013
ADMINISTRATIVE APPEALS CHAMBER
WH v Warrington Borough Council (SEN)
DECISION
The appeal is dismissed.
REASONS FOR DECISION
1 The appellants are the parents of a child whom I call B. B was diagnosed with autism before reaching school and later with attention deficit hyperactive disorder and sensory processing disorder. The relevant local authority officials prepared a statutory assessment for B before B started school. That authority is Warrington Borough Council, the respondents (the Council). I take the above from the latest statement of B’s special educational needs, Part 2 of which was agreed fully by the parents and the Council as part of the proceedings before the First-tier Tribunal.
Background to this appeal
2 B’s severe needs are not in dispute. But the provision of education for those needs has been in dispute for some time. When B was first given a statutory assessment the statement named a local school, referred to in the appeal as GLS, as the appropriate school. The parents did not agree and wanted another school, referred to as WHS. This disagreement was put before a special educational needs tribunal in 2009. The tribunal confirmed GLS as the school to be named. An amended statement was issued in 2010. Again, the parents sought the naming of WHS and again the matter was taken to a tribunal. That tribunal also confirmed GLS as the school to be named.
3 In 2012 the parents requested additional support for B at school, and therefore that the statement be amended. The parents again asked for WHS to be named in the statement. The Council’s officers refused. That resulted in B’s statement again being put before a tribunal, now the First-tier Tribunal. (I refer to the tribunal the decision of which is the one the parents are now appealing as the Tribunal.) Following a two-stage hearing and considerable discussion – described appropriately in the Tribunal decision as “what was in effect mediation” – the parents and the Council agreed Part 2 of B’s statement in full and much of Part 3. Two issues remained in dispute: aspects of the educational provision, including references to a residential environment and the need for a waking day curriculum; and the costs of competing school placements.
4 The Tribunal gave a full decision, including ordering amendments to Part 3 of the statement for B. In its decision it set out its reasons for deciding that B did not need a waking day curriculum. It reconsidered the parental choice of WHS. It concluded at paragraph [39] that:
“If we are right, whatever way you look at it, a placement at WHS is much more expensive than a placement at GLS, would be over-provision, and could not be justified on educational grounds.”
5 The parents asked for permission to appeal against that decision. The application was refused by a First-tier Tribunal judge. It was renewed before me. I directed an oral hearing, indicating when doing so that in my provisional view it was arguable that the Tribunal decision may contain errors of law with regard to its analysis of public expenditure for the purposes of section 9 of the Education Act 1996. In order to expedite proceedings and reduce costs, I directed a hearing of the application on this issue, and invited the parties to agree to a rolled-up hearing of it (that is, a hearing both of the application and the resulting appeal). I also invited the parents to put forward any further grounds of appeal that they wished me to consider.
6 At the hearing Mr Pascal for the parents and Mr Stockwell for the Council agreed to a rolled up hearing on the question of relative costs. I heard their arguments in full on those issues. I heard Mr Pascal put forward further issues that, in his view, I should consider in the appeal. Mr Stockwell for the Council reserved the Council’s position on the additional grounds. I agreed with the parties that, to keep matters moving, I would consider the oral application as to the other grounds and then, if I accepted any additional grounds of appeal, invite a response from the Council.
7 By separate decision I have refused permission to the appellants to appeal on any grounds other than those indicated in my original direction, namely the question of costs. In doing so, I saw no reason to seek further submissions for the Council. For convenience, that decision is appended to this decision.
The issues in the appeal
8 For the purposes of this decision I take as accepted fact the agreed statement of B’s educational needs in Part 2 of the statement prepared for him, and the final form of the required educational provision set out in Part 3 of that statement as ordered by the Tribunal.
9 The question that remains in dispute in this appeal is whether the Tribunal correctly dealt with the handling of the parents’ preferred choice of WHS (an independent school) as the school to be named in Part 4, in deciding that placement at that school was “much more expensive” than a placement at the maintained special school, GLS, named by the Council.
10 This question arises because of the provisions of section 9 of the Education Act 1996. This applies because the Tribunal was required to choose between a maintained school and an independent school. The appeal is complicated not only by the complexity of B’s needs but also by two additional aspects of the case. The case must be decided in the light of the new arrangements introduced in 2013 for funding special education in both schools funded by a local authority and independent schools. It must also be decided in the context of a child who has been accommodated by the local authority for a number of days each week under section 20 of the Children Act 1989. A factual complication in this case was that the care provided under the 1989 Act was in part provided by the same establishment as that which the parents wished to have named as the school in Part 4, namely WHS.
The legislative and administrative framework
11 The Tribunal recognised that it had to apply section 9 of the 1996 Act. This provides:
“9 Pupils to be educated in accordance with parents’ wishes
In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State and local education 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. “
12 Several of the cases that have discussed section 9 have also discussed paragraph 3 of Schedule 27 to that Act. This applies a test related to resources where the choice of schools before a tribunal involves the parents choosing a maintained school (or similar) different to the maintained school named by the local authority. Sedley LJ analysed the Schedule 27 provisions in his judgment in the Court of Appeal in Catchpole v Buckinghamshire County Council [1999] LGR 321, where all the relevant legislation is set out. In his judgment section 9 applies to all statutory functions under the Education Act 1996 but Schedule 27 only applies to the more limited case of a choice between maintained or similar schools.
13 Having noted how non-special needs cases are handled, Sedley LJ set out the task of a local authority and a tribunal in a case such as this as follows (at page 330c):
“For a child with special educational needs, the statutory scheme is very different. A series of quite onerous obligations comes to rest upon the local authority, calling for a series of difficult decisions which are plainly intended by Parliament to be geared so far as practicable to the child’s individual needs. The parents’ voice is heard in this process, if anything, more clearly than in the ordinary school selection process; but where paragraph 3 of Schedule 27 does not make parental choice determinative, it is because the child’s needs or the efficient use of resources point elsewhere. If the differences between the parents and the local education authority cannot be resolved by negotiation, the tribunal is there to resolve it. It is likewise required by the Act to follow a process of inquiry and reasoning directed to meeting the child’s needs, which both values and limits parental choice. In such a process, the reasons for the parental choice are of the first importance; the bare fact of parental choice, which in the nature of things is simply a function of their reasons, is logically of only marginal significance.”
Stuart-Smith and Thorpe LJJ agreed.
14 The other key provision for the purposes of this appeal is section 20 of the Children Act 1989. This provides:
“20 Provision of accommodation for children: general.
(1)Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—
(a)there being no person who has parental responsibility for him;
(b)his being lost or having been abandoned; or
(c)the person who has been...
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