Sharifa Mulla v Hackney Learning Trust
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls,Lord Justice Picthford,Lady Justice Rafferty |
| Judgment Date | 02 April 2014 |
| Neutral Citation | [2014] EWCA Civ 397 |
| Court | Court of Appeal (Civil Division) |
| Date | 02 April 2014 |
| Docket Number | Case No: C3/2013/1561 |
[2014] EWCA Civ 397
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM the UPPER TRIBUNAL (ADMINISTRATIVE APPEALS CHAMBER)
UPPER TRIBUNAL JUDGE JACOBS
C5/2009/0865
C5/2009/1855
Royal Courts of Justice
Strand, London, WC2A 2LL
Master of the Rolls
Lord Justice Pitchford
and
Lady Justice Rafferty
Case No: C3/2013/1561
David Wolfe QC (instructed by Tower Hamlets Law Centre) for the Appellant
Jennifer Thelen (instructed by Hackney Learning Trust) for the Respondent
Hearing date: 12 March 2014
Ms M appealed under para 8(3) of Schedule 27 of the Education Act 1996 ("the Act") to the First Tier Tribunal, Special Educational Needs and Disability ("the FTT") against the decision of The Learning Trust of the London Borough of Hackney ("Hackney") to refuse her request under para 8(2) of Schedule 27 that Hackney should change the school named in Part 4 of her son M's Statement of Special Needs from I School (a special school maintained by Hackney) to RC School (a special school maintained by Islington Borough Council ("Islington")). M's sister currently attends RC School. Hackney resisted this placement on the grounds that it would be incompatible with the efficient use of its resources. The additional costs of acceding to Ms M's request were estimated at £26,000 per year. These costs arose because, if M were to attend RC School, Islington would recoup the cost of his place from Hackney, together with an additional administration charge.
The FTT noted Ms M's desire for her children to attend the same school, difficulties in arranging transport and Ofsted reports for both RC School and I School. They concluded at para 13 of their decision that they would have liked to allow the appeal and make the order sought by Ms M. But the costs of doing so would be "very substantial", especially bearing in mind that M had nearly 10 years of schooling ahead of him. There was no educational need to move him. They were not able to conclude that the social and practical factors put forward by Ms M outweighed the very considerable additional expense that would be incurred by Hackney if M were to be placed at RC School. Accordingly, they dismissed the appeal. I should point out that the inter-authority recoupment regime (which meant that RC School was more expensive from Hackney's point of view, but hardly at all from the point of view of the public purse as a whole) no longer exists: see SI/2013/492. But this change in the statutory regime does not affect the issues raised by this appeal.
Ms M appealed to the Upper Tribunal (Administrative Appeals Chamber) (Judge Edward Jacobs) on the grounds that the FTT had failed to consider the effect of section 9 of the Act. She contended that section 9 required account to be taken of the cost to the public purse as a whole (and not only the cost to Hackney) of acceding to her preferred choice of school. She argued that, if the FTT had properly taken account of section 9, they would have found that little or no additional public expenditure would have been incurred by placing M at RC School. In the result, they should have held, in the light of the social and practical factors which weighed in favour of her choice, that RC School should have been named.
Judge Jacobs dismissed her appeal. Before I come to his decision, I should refer to the material statutory provisions.
Relevant statutory provisions
Section 9 of the Act 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."
Section 324 provides:
"(1) If, in the light of an assessment under section 323 of any child's educational needs and of any representations made by the child's parent in pursuance of Schedule 27, it is necessary for the local authority to determine the special educational provision which any learning difficulty he may have calls for, the authority shall make and maintain a statement of his special educations needs.
(2) The statement shall be in such form and contain such information as may be prescribed.
(3) In particular, the statement shall—
(a) give details of the authority's assessment of the child's special educational needs; and
(b) specify the special educational provision to be made for the purpose of meeting those needs, including the particulars required by subsection (4).
(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
………..
(7) Schedule 27 has effect in relation to the making and maintenance of statements under this section."
Schedule 27 makes provision for the making and maintenance of statements. Para 2A(1) provides:
"A local authority shall not amend a statement except—
(a) in compliance with an order of the Tribunal,
(b) as directed by the Secretary of State under section 442(4), or
(c) in accordance with the procedure laid down in this Schedule".
One of the situations in which Schedule 27 contemplates such an amendment is that stated in para 8 which provides:
"(1) Sub-paragraph (2) applies where –
(a) the parent of a child for whom a statement is maintained which specifies the name of a school or institution asks the local authority to substitute for that name the name of a maintained school or maintained nursery school specified by the parent, and
(b) the request is not made less than 12 months after –
(i) an earlier request under this paragraph,
(ii) the service of a copy of the statement [or amended statement] under paragraph 6,
(iii) …
(iv) if the parent has appealed [there is an appeal] to the Tribunal under section 326 or this paragraph, the date when the appeal is concluded,
whichever is the later,
(2) The [local authority] shall comply with the request 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.
(3) Where [the local authority] determine not to comply with the request –
(a) they shall give [notice in writing of that fact] to the parent of the child, and
(b) the parent of the child may appeal to the Tribunal against the determination.
………..
(4) On the appeal the Tribunal may –
(a) dismiss the appeal, or
(b) order the [local authority] to substitute for the name of the school or other institution specified in the statement the name of the school specified by the parent."
Para 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 he wishes his or her child to be educated and to give reasons for that preference. Subparagraph (3) provides:
"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."
It can therefore be seen that the language of para 8(2) is almost identical with that of para 3(3). I shall explain the significance of this later.
The decision of Judge Jacobs
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