Slough Borough Council v Special Educational Needs Tribunal and Another
| Jurisdiction | England & Wales |
| Judge | THE HONOURABLE MR JUSTICE PLENDER,Mr Justice Plender |
| Judgment Date | 22 May 2009 |
| Neutral Citation | [2009] EWHC 1091 (QB) |
| Date | 22 May 2009 |
| Court | Queen's Bench Division |
| Docket Number | Case No: CO/9862/2008 |
[2009] EWHC 1091 (QB)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
Before: The Honourable Mr Justice Plender
Case No: CO/9862/2008
Mr Oliver Hyams (instructed by Mrs S. Bull, Solicitor) for the Claimants
Mr John Friel (instructed by SEN Legal, Solicitors) for the Second and Third Defendants
Hearing dates: 12 May, 2009
Approved Judgment
I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.
Mr Justice Plender:
The Facts
1 This appeal raises a question as to the correct construction of section 9 of the Education Act 1996. This provides that:
“In exercising and 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.”
2 The appellant (“the Council”) challenges the decision of the First Respondent (“SENDIST”) dated 19 th September 2008 which specified
“the continuation of Simran [Suri]'s placement at the PACE Centre for a time limited period of two years until transfer to secondary education, subject to Mr and Mrs Suri undertaking the cost of transport”.
The Council submits that the appropriate school to be specified in Simran's statement is a publicly-maintained school called the Arbour Vale School.
3 Simran Suri is a girl born on 15 th March 1999 with cerebral palsy. As a result of microcephaly she has triplegia and global developmental delay impacting her physical communication, visual, cognitive and playing skills. The Council has maintained her Statement of Educational Needs since July 2002.
4 The second and third Respondents (“Mr and Mrs Suri”) are her parents. They consider that Suri's welfare can best be advanced by her placement at the PACE Centre, an independent non-maintained school in Aylesbury, Buckinghamshire which provides specialised training by conductive education for infants and children with motor disorders such as cerebral palsy, by means of “conductive education”. The PACE Centre provides education incorporating emotional, intellectual and academic learning by the use of sensory techniques as well as pedagogy. For instance, the day begins for Simran with a sage bath and continues with her treatment by a limited number of carers or teachers who assume responsibility for her upbringing. Simran has been attending the PACE Centre since April 2001, when she was not yet two. Her parents state that she has made the most exceptional progress at the PACE school and they fear that her removal to another school would be very much contrary to her interests.
5 In accordance with section 9 of the Education Act 1996 SENDIST had to consider whether Simran's continued education at the PACE Centre was compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure. This entailed comparing the expenditure entailed by her continued education at the PACE Centre with the expenditure that would be entailed by her education at the Arbour Vale School. By its decision of 7 th November 2007 SENDIST reasoned that the total maximum annual marginal cost of continuing with Simran's' education at the PACE Centre would be £19,360. But since Mr and Mrs Suri want Simran to continue at the PACE Centre for as long as possible, and the PACE Centre were prepared to care for her until the age of 13, that would involve 8 years' treatment there, during which period costs would rise. It reasoned “Therefore we have concluded that Arbour Vale School should be named in Part 4” of Simran's statement.
6 Mr and Mrs Suri applied to SENDIST for review of its decision on the ground, among others, that:
“The Panel made a mistake in the tribunal procedure in that it did not take into account any willingness on behalf of the PACE Centre Trust to contribute towards the costs involved for a placement either in the form of a charitable bursary or a reduction of the placement rate. The Director of the school was present at the tribunal but was not asked the question. Had they been asked we would advise that the Trust would be contributing an amount of £9000 towards the placement cost in the form of a reduction in the placement rate to Slough LEA in this specific circumstance”.
7 The Council stated that evidence about the any willingness on behalf of the PACE Centre Trust to contribute towards the costs involved was not sufficient to enable it to agree to make joint funding arrangements with Simran's parents. The Council continued to believe that Arbour Vale School could meet Simran's needs.
8 These were the circumstances in which SENDIST agreed to review its decision of 7 th November 2007. The review was confined to the issue of placement costs and funding arrangements. The Council reasoned that there was an existing pre-funded place at Arbour Vale School for which the only additional cost to the local education authority, entailed by Simran's attendance, would be £4161 for additional support, excluding therapy costs at £35 per hour.
9 Mr and Mrs Suri, on the other hand, calculated that the additional cost to the Council would be £15,219: the largest single element in the difference between their costing and that of the Council was the sum of £9161 which would be needed to cover 50% of the full-time costs of a specialist teaching assistant.
10 SENDIST proceeded on the basis that the total cost of a placement at Arbour Vale School was £32,490 “based on the cost of therapies, compared to the normal total cost of £36,000 at the PACE Centre.” On this basis it considered that “the difference in cost between the two placements is not overly significant for the next 2 years in any event”. However the PACE Centre had offered to place Simran for only £10,000 per annum and taking account of the upheaval that a move to the Arbour School would present to Simran, this represented good value for money. Accordingly SENDIST amended its decision.
11 Against that amended decision the Council now appeals.
The Fees Payable in Respect of Simran's Education
12 Section 348(2) of the Education Act 1996 which provides that the conditions prescribed in subsection (1) are met (as is the case with Simran)
“the local education authority shall pay the whole of the fees payable in respect of the education of the child”.
13 Mr Hyams, for the Council, submitted that in the present case the fees payable in respect of Simran's education amounted to £36,000. His submission reflected the position long maintained by the Council, in the person of its Head of Services for Children with Learning Difficulties and Disabilities, Jackie Wright.
14 By letter dated 5 August 2008 Ms Wright maintained that what was on offer from The PACE Centre was “a joint funding arrangement between the LA and the parents and this [ie £10,000] cannot be considered as the full cost of the placement for Simran”. She wrote “the LA will not use its discretionary powers to make a joint funding arrangement for Simran” and that “joint funding arrangements fall outside the remit of the SEN and Disability...
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