London Borough of Croydon v K-A (SEN)
| Jurisdiction | UK Non-devolved |
| Judge | Judge Wikeley |
| Neutral Citation | [2022] UKUT 106 (AAC) |
| Subject Matter | Special educational needs - special educational provision - naming school,Special educational needs - special educational provision - naming school or other institution in EHC plan,Tribunal procedure,practice - precedence of decisions,Wikeley,N |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Published date | 24 May 2022 |
London Borough of Croydon v K.-A.
[2022] UKUT 106 (AAC)
1
IN THE UPPER TRIBUNAL Appeal No. UA-2021-001986-HS
ADMINISTRATIVE APPEALS CHAMBER
On appeal from the First-tier Tribunal (HESC Chamber)
Between: London Borough of Croydon Appellant
- v –
S. K-A. Respondent
Before: Upper Tribunal Judge Wikeley
Hearing date: 6 April 2022
Decision date: 20 April 2022
Representation:
Appellant: Ms Amelia Walker of Counsel, instructed by the London Borough
of Croydon
Respondent: Ms Alice de Coverley of Counsel, instructed by the Coram
Children’s Legal Centre
DECISION
The decision of the Upper Tribunal is to dismiss the Local Authority’s appeal.
The decision of the First-tier Tribunal dated 14 April 2021 under file number
EH306/20/00032 was not in error of law (section 11 of the Tribunals, Courts and
Enforcement Act 2007).
ORDER UNDER RULE 14
Pursuant to rule 14(1) of the Tribunal Procedure (Upper Tribunal) Rules 2008, it is
prohibited for any person to disclose or publish any matter likely to lead members of
the public to identify the young person in these proceedings. This order does not
apply to (a) the young person’s parent(s); (b) any person to whom the young
person’s parent(s), in due exercise of their parental responsibility, disclose such a
matter or who learns of it through publication by either parent, where such publication
is a due exercise of parental responsibility; (c) any person exercising statutory
(including judicial) functions in relation to the young person where knowledge of the
matter is reasonably necessary for the proper exercise of the functions.
London Borough of Croydon v K.-A. [2022] UKUT 106 (AAC)
Case no: UA-2021-001986-HS
2
REASONS FOR DECISION
The legal issue raised by this appeal to the Upper Tribunal
1. This appeal by the London Borough of Croydon (‘the local authority’ or ‘the LA’)
against the decision of the First-tier Tribunal (‘the Tribunal’) concerns the proper
interpretation and application of section 9 of the Education Act 1996. This
section (as amended) provides as follows:
Pupils to be educated in accordance with parents’ wishes
9. 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.
2. It is not in dispute that section 9 also applies to the Tribunal insofar as it stands
in the shoes of a local authority in deciding matters on appeal. It is also
common ground that section 9 does not impose a duty to act in accordance with
the parental preference, but rather to have regard to it.
The background to this case
3. This case concerns a young boy who I shall simply call J, in order to protect his
privacy and anonymity, as well as that of his family. At the time of the Tribunal
hearing, J was aged 13. He has a diagnosis of severe bilateral spastic
quadriplegia form of Cerebral Palsy. J is non-verbal, doubly incontinent, non-
ambulant and a full-time wheelchair user, who requires hoisting for all transfers
during the day. He has serious respiratory problems and profound and multiple
learning difficulties. He is, inevitably, reliant on adults for all his personal care
and mobility needs.
4. That summary is doubtless wholly inadequate in conveying the challenges
faced both by J and by his mother on his behalf. I apologise in advance for the
inordinate length of this decision, which may seem somewhat detached from
the real life issues they face, but the appeal raises a wider point of legal
principle that may affect other children with special educational needs.
The proceedings before the First-tier Tribunal
5. In February 2020 the local authority decided to make and maintain an
Education Health and Care (‘EHC’) Plan for J. By the time the matter came
before the Tribunal, the local authority had accepted that J needed a 52-week
per year residential placement. It proposed (in Section I of the EHC Plan) a
placement for J at a school I will simply call ‘the Manor’, an independent special
school. J’s mother felt that he needed to be at a different residential school (‘the
Trust’), a non-maintained special school. In fact as it happened J had already
been placed at the Trust for post-operative recuperation, but had then remained
there in the light of the national lockdown caused by the Covid-19 pandemic.
6. J’s mother accordingly appealed to the Tribunal under section 51 of the
Children and Families Act 2014, against the contents of the EHC Plan made by
the local authority for her son. At the Tribunal hearing the live issues in dispute
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