Slough Borough Council v Special Educational Needs Tribunal and Another

JurisdictionEngland & Wales
JudgeLord Justice Sedley,Lord Justice Rimer,Sir Paul Kennedy
Judgment Date15 June 2010
Neutral Citation[2010] EWCA Civ 668
CourtCourt of Appeal (Civil Division)
Date15 June 2010
Docket NumberCase Nos: C1/2009/2071 & C1/2009/2071(A)

[2010] EWCA Civ 668

[2009] EWHC 1091 (QB)

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Mr Justice Plender

Before: Lord Justice Sedley

Lord Justice Rimer

and

Sir Paul Kennedy

Case Nos: C1/2009/2071 & C1/2009/2071(A)

Between
Slough Borough Council
Appellant
and
Special Educational Needs and Disability Tribunal & Others
Respondent

Mr Oliver Hyams (instructed by Bracknell Forest Borough Council) for the Appellant

Mr John Friel (instructed by Sen Legal Ltd) for the Respondent

Hearing date: Wednesday 5 May 2010

Lord Justice Sedley

Lord Justice Sedley:

1

This is a statutory appeal against a decision of a Special Educational Needs and Disability Tribunal. Although the Tribunal is named in the title of the appeal as a respondent, the true respondents are the parents of the child in question, Mr and Mrs Suri. Their daughter is severely disabled and requires special educational provision. The appellant local education authority has accordingly at intervals produced the requisite statements of her educational needs. The dispute which has now reached this court concerns the nomination of the school at which she was to receive her education until 2010, when secondary transfer was due.

2

In a decision made in June 2008 the Tribunal nominated Arbour Vale, a maintained school. By a further decision made in September 2008 the Tribunal reviewed its decision and instead nominated the PACE Centre, a private institution. Nothing turns on the respective qualities of the two schools: either can provide suitably for the child's needs. But the parents have throughout had a clear preference for the PACE Centre, and s.9 of the Education Act 1996 requires local education authorities to have regard to “the general principle that children are to be educated in accordance with the wishes of their parents, so far as that is compatible with … the avoidance of unreasonable public expenditure”.

3

Notwithstanding the broad terms in which this provision is couched, it is accepted that it permits (indeed arguably requires) parental choice to be overridden where the choice would impose an avoidable burden on public funds. So the Tribunal was called upon in this case, as it often is, to quantify the respective costs of the two schools. It decided on review that the PACE Centre made the lesser call on the local education authority's funds.

4

Two issues have brought the case before this court. One is the want of figures in the Tribunal's decision or in the evidence to support its apparent finding that the cost of a year's placement for the respondents' daughter at Arbour Vale was £32,490. The other is its unequivocal finding that the cost of a year's placement for her at the PACE Centre was £10,000. For the appellant authority, Oliver Hyams submits not only that the first figure is unexplained by any discernible arithmetic but that the true figure is the marginal cost of £4,161 advanced by the authority. The second figure, he submits, is an artificial figure procured by a contribution to the PACE Centre's funds which the Act requires to be disregarded.

5

John Friel for the parents contests both arguments. On appeal to the High Court, Plender J, in a closely reasoned judgment, [2009] EWHC 1091 (QB), rejected them both. A second appeal now comes before this court by permission granted by Wall LJ because of the broad significance of the principal issue.

The cost of a placement at Arbour Vale

6

On the first issue Plender J concluded that it was sufficient that the Tribunal had held that, even if the true comparison was between the full cost of a placement at the PACE Centre, £36,000, and the figure the Tribunal had reached for a placement at Arbour Vale, £32,490, the difference was “not overly significant”.

7

For my part I would not, with respect, regard this as a satisfactory disposal of the issue. Unless and until the figure for Arbour Vale was explained, as it was not, no useful comparison could be made. To this extent Mr Hyams' criticism of the Tribunal's decision as vitiated by inadequate reasoning is sound. If we are to act on it by remitting the case for amplification of the Tribunal's reasons, however, Mr Friel seeks permission to cross-appeal on the ground that the Tribunal had been without relevant information which could come only from the appellant authority, so that any remission should be on terms which made this deficiency good. But, for reasons I now turn to, this will not be necessary.

8

It is only if either or both of two conditions are met that the question of the cost of a placement at Arbour Vale can avail Mr Hyams. One is that the true cost of a placement at the PACE Centre was not the special fee of £10,000 which the Tribunal took it to be but the usual fee of £36,000. The other is that the true cost of a placement at Arbour Vale was equal to or less than that at the PACE Centre.

9

If the true cost of a placement at the PACE Centre were £36,000, it would without doubt be necessary to remit the case for an intelligible finding as to the true cost of a placement at Arbour Vale, for this could well be critical. But if, as I have concluded for reasons to which I will come, the Tribunal was entitled to take the relevant fees at the PACE Centre as £10,000 a year, it is only if the fees at Arbour Vale were indeed as low as the £4,161 which Mr Hyams advances that the s.9 condition for overriding parental choice would be met.

10

The figure of £4,161 was advanced before the Tribunal by the local education authority as the only additional expenditure which would be needed for this particular child at Arbour Vale, a maintained school in which there was a vacant place. It represented (somewhat surprisingly) the cost of additional full-time 1:1 support. For the rest, it was said, the cost was part of the provision already made at Arbour Vale.

11

It was at paragraph N of their decision that the Tribunal made the comparison commented on above between their delphic figure of £32,490 for Arbour Vale and a PACE Centre fee of £36,000. But they went on in their next paragraph to say this:

“However, in the particular circumstances of this case, regardless of the staffing arrangements at Arbour Vale School, it is clear that the real cost of...

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