KC HS 4737 2014
| Jurisdiction | UK Non-devolved |
| Judge | Judge C G Ward |
| Judgment Date | 01 April 2015 |
| Neutral Citation | 2015 UKUT 177 AAC |
| Subject Matter | Special educational needs |
| Respondent | London Borough of Hammersmith and Fulham (SEN) |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HS 4737 2014 |
| Appellant | KC |
Attendances:
For the Appellant: Mr John Friel, counsel
For the Respondent: Mr Sean Bowers, solicitor
Decision: Although it is the respondent who has substantially succeeded, on a purely technical level the appeal is allowed. The decision of the First-tier Tribunal sitting at the Competition Appeal Tribunal London WC1 on 7 July 2014 under reference SE205/14/00003 involved the making of an error of law and is set aside.
Acting under section 12 (2) of the Tribunals, Courts and Enforcement Act 2007 I substitute the decision which the tribunal ought to have given:
The West London Free School is to be specified in Part 4 of the statement.
REASONS FOR DECISION
1. This case concerns the education of B. I will refer to the appellant as her parent as that is the language of the statute.
2. The case raises questions of the interaction between the provisions of the Education Act 1996 which relate to the integration of pupils with statements of SEN (sections 316 and 316A) and the parental preference provision of section 9 of the Act.
3. B’s parent wanted her to attend (as a first choice) the Centre Academy (“the R Academy”). This is a specialist independent school. It is neither a special school nor a maintained school, nor a mainstream school for the purposes of section 316 and 316A. The authority’s first choice (and so the school named in the statement) was Wood Lane High School (“the S High School”), a maintained special school (and so not a mainstream school for the purposes of ss316/316A).
4. If the tribunal decided that the R Academy was not to be named, B’s parent’s wish was that B should attend the West London Free School (“the T Free School”).. This is non-maintained and is within the limited category of independent schools (as defined by s.463) which can constitute a mainstream school for the purposes of ss316/316A.
5. It was common ground that, as between the R Academy (preferred by the parent) and the S High School, the balancing exercise required by section 9 needed to be carried out. It was, to the disadvantage of a placement at the R Academy, which the tribunal concluded would result in unreasonable public expenditure. No challenge is made to that result of that comparison exercise.
6. However, the question then arose as to the parties’ fall-back positions. B’s parent had indicated her wish in that event for mainstream education for B and the authority, recognising the impact of ss316/316A, was and is content for B to attend the T Free School, as indeed she now does. The tribunal however, decided that it had no jurisdiction to name that school. It did not explain its reasons for that view. It is common ground that in declining jurisdiction and in failing to give reasons for so doing, the tribunal erred in law. I explain briefly why below.
7. But, submits Mr Friel, that is not the end of the matter. In short, he submits that applying s316 is done through the provision made in the statement under s324. On the authorities, s324 confers a wide discretion to which, inter alia, the results of applying a s9 analysis are relevant and thus, before the T Free School could be named, a further s9 comparison had to be conducted, this time between the T Free School and the R Academy. I turn to the relevant statutory provisions and then examine the authorities. I refer to the legislation as it stood at the time. Much of the ground is however now covered, in England, by the Children and Families Act 2014.
8. The basic structure of the duty to assess a child’s special educational needs in certain circumstances and then, if relevant conditions are met, for a local authority to issue a statement of those needs is set out in Part IV of the 1996 Act and is sufficiently well-known not to require to be set out at length here. Reference should however be made to section 324(4), which provides:
“(4) The statement shall –
(a) specify the type of school or other institution which the local authority consider would be appropriate for the child,
(b) if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement, and
(c) [not material].”
9. Schedule 27 makes provision for the making and maintenance of statements. Paragraph 3(1) requires a local authority to make arrangements for enabling a parent of a child who is the subject of a proposed statement or proposed amended statement to express a preference as to the maintained school at which the parent wishes his or her child to be educated and to give reasons for that preference. Sub-paragraph (3) provides:
“(3) Where a local authority make a statement in a case where the parent of the child concerned has expressed a preference in pursuance of such arrangements as to the school at which he wishes education to be provided for his child, they shall specify the name of that school in the statement unless –
(a) the school is unsuitable to the child’s age, ability or aptitude or to his special educational needs, or
(b) the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources.”
As R Academy is not a maintained school, this provision is not directly relevant in this case, but it is relevant to understanding some of the case law.
10. What is relevant to parental preference more generally, including where, as here, the initial preference is for an independent school, is section 9 of the 1996 Act, which 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 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.”
11. Before reaching ss316/316A, it is necessary to note s319:
“319.— Special educational provision otherwise than in schools.
(1) Where a local authority are satisfied that it would be inappropriate for—
(a) the special educational provision which a learning difficulty of a child in their area calls for, or
(b) any part of any such provision,
to be made in a school, they may arrange for the provision (or, as the case may be, for that part of it) to be made otherwise than in a school.
(2) Before making an arrangement under this section, a local authority shall consult the child's parent.”
12. Sections 316 and 316A provide:
“316 Duty to educate children with special educational needs in mainstream schools
(1) This section applies to a child with special educational needs who should be educated in a school.
(2) …
(3) If a statement is maintained under section 324 for the child, he must be educated in a mainstream school unless that is incompatible with–
(a) the wishes of his parent, or
(b) the provision of efficient education for other children.
(4) In this section and section 316A“mainstream school” means any school other than–
(a) a special school, or
(b) an independent school which is not–
(i) a city technology college,
(ii) a city college for the technology of the arts, or
(iii) an Academy.
316A Education otherwise than in mainstream schools
(1) Section 316 does not prevent a child from being educated in–
(a) an independent school which is not a mainstream school, or
(b) a school approved under section 342,
if the cost is met otherwise than by a local authority.
(2) …
(3) Section 316 does not affect the operation of–
(a) section 348, or
(b) paragraph 3 of Schedule 27.
(4) If a local authority decide–
(a) to make a statement for a child under section 324, but
(b) not to name in the statement the school for which a parent has expressed a preference under paragraph 3 of Schedule 27,
they shall, in making the statement, comply with section 316(3).
(5) – (11) …
13. Section 348 ...
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