O v London Borough of Lewisham and Another
| Jurisdiction | England & Wales |
| Judge | Andrew Nicol QC |
| Judgment Date | 11 September 2007 |
| Neutral Citation | [2007] EWHC 2130 (Admin) |
| Docket Number | Case No: CO/1602/2007 |
| Court | Queen's Bench Division (Administrative Court) |
| Date | 11 September 2007 |
[2007] EWHC 2130 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Andrew Nicol QC, Sitting as a Deputy Judge of the High Court
Case No: CO/1602/2007
David Wolfe (instructed by Maxwell Gillott, solicitors) for the Appellant
Mark Roscoe (instructed by Lewisham Legal Services) for the 1 st Respondent
Hearing dates : 5 th and 6 th September 2007
Judgement
Andrew Nicol QC :
O is an 11 year old boy with severe and complex difficulties. For many years a statement of special educational needs has been in place for him. In 2006, as he approached the time when he would transfer to a secondary school, it was appropriate for the statement to be reviewed. The London Borough of Lewisham, where he lives, accordingly amended the statement in February 2006. Part 4 of the amended statement identified the P school as the one where he would be placed from September 2006. This is a maintained day special secondary school.
O's mother wished him to go to the PH School. This is also a maintained special school, but it is primarily a residential school and O's mother wished him to be a boarder there. She appealed to the Special Educational Needs and Disciplinary Tribunal ('SENDIST') asking for the statement to be amended to reflect the school that she preferred for her son. She sought other amendments as well but these are not material to the present proceedings. In its decision of 5 th February 2007, SENDIST did not order Lewisham to make the alteration to Part IV which O's mother wanted: it decided that the P School should still be named as the School where O was to be placed. O had already started at the P School in September 2006 and he continues to be a pupil there.
O's mother appeals to this Court under s.11 of the Tribunals and Inquiries Act 1992 on the grounds that the Tribunal erred in law in its decision. SENDIST, the 2 nd Respondent, has not appeared or been represented on the appeal, but the London Borough of Lewisham seeks to uphold the Tribunal's decision.
There are a number of provisions in the Education Act 1996 which concern the role to be played by parental preferences. Of immediate relevance in the context of a statement of special educational needs is Schedule 27 paragraph 3. This provides as follows:
'(1) Every education authority shall make arrangements for enabling a parent
(a) on whom a copy of a proposed statement has been served under paragraph 2,
(b) on whom a copy of a proposed amended statement has been served under paragraph 2A, or
(c) on whom an amendment notice has been served under paragraph 2A which contains a proposed amendment about –
(i) the type or name of a school or institution ….
to express a preference as to the maintained school at which he wishes education to be provided for his child and to give reasons for his preference.
(2) Any such preference must be expressed within the period of 15 days beginning
(a) with the date on which the written notice mentioned in paragraph 2B was served on the parent, or
(b) if a meeting has (or meetings have) been arranged under paragraph 4(1)(b) or (2), with the date for that meeting (or the last of those meetings).
(3) Where a local education 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.'
In summary the Tribunal in the present case found that, although PH School was a very good school, 'given our finding that [O] does not require a residential setting, to place him there would constitute over provision and an inefficient use of resources.' They calculated that a place at PH School would involve approximately £20,000 more per year by way of reckonable costs than a placement at P School.
While he is a day pupil at P School, O's mother is provided with respite care by Lewisham as part of its social services obligation under the Children Act 1989. It was argued on her behalf before the Tribunal that, if O was placed at PH School, she would not need this care (or, at least, not to anything like the same extent) and this saving ought to be brought into account in deciding the additional cost of a placement at PH School. There was evidence before the Tribunal that the saving would have been about £16,588 each year, making the additional cost of PH School, not £20,000 but about £3,500.
As to this argument, the Tribunal said 'We do not accept Ms Gent's [O's mother's solicitor] submission that we should bring into account the cost of [O]'s social care in considering the 'efficient use of resources', a concept which is inherently narrower in scope than s.9 of the Education Act 1996.'
Section 9 provides:
'In exercising or 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 the avoidance of unreasonable public expenditure.'
Mr Wolfe, on behalf of the Appellant, accepts that, on the authority of B v London Borough of Harrow [2000] ELR 109, the Tribunal could only take account of the costs (and any savings) to Lewisham as a local education authority when considering whether a placement at PH School would be an 'inefficient use of resources' for the purposes of Schedule 27 paragraph 3(3). However, he submits that the Tribunal should have considered the effect of s.9. He argues that s.9 does indeed have a wider scope than paragraph 3(3). 'Public expenditure' is not confined to costs or savings of Lewisham as an education authority but would also include savings on the costs of respite care. He argues that the Tribunal was right to recognise this but erred in law in apparently giving no consideration to the impact of s.9. He accepts that the effect of s.9 is of a lesser order than paragraph 3(3). If the conditions of the latter are fulfilled, the local education authority (and, on appeal, the Tribunal) is obliged to adopt the parents' preference for a school placement. Section 9, by contrast, only requires the education authority and the Tribunal to 'have regard' to the parents' wishes even if their choice would not involve unreasonable public expenditure. Nonetheless, he submits, if the Tribunal had had regard to s.9 and to the evidence that the true impact on 'public expenditure' was some £3,500 instead of £20,000, it might have agreed to order Lewisham to specify the PH School for O.
Mr Roscoe, on behalf of Lewisham submitted that s.9 did not specifically fall to be considered in circumstances such as the present where the issue was which of two maintained schools should be named in a statement of educational needs. He also argued that this was, in any case, an arid debate since s.9 gave the Appellant no greater assistance than paragraph 3(3) of Schedule 27. Critically, he argued, 'public expenditure' in s.9 is a term of no wider meaning than 'resources' in paragraph 3(3). The later expression, as the Appellant accepted, meant the resources available to the local education authority whose statement of educational needs was in issue. Respite care was not intended to fulfil an educational need. The Tribunal was wrong so far as it had held that 'public expenditure' in s.9 had a wider meaning than 'resources' in paragraph 3(3). In any case, the Tribunal in this case had had regard to the wishes of the Appellant that her son should be placed at PH school.
Does s.9 of the Education Act 1996 apply where the choice is between two maintained schools
In C v Buckinghamshire County Council and Special Educational Needs Tribunal [1999] ELR 179 the parents could not invoke paragraph 3(3) because their preferred school was in the independent sector and the paragraph is only engaged where parental preference is for a maintained school. The parents submitted that they could, nonetheless, invoke s.9. The local authority argued that s.9 had no application at all in a special educational needs case since Part IV of the 1996 Act (which included Schedule 27) constituted a self-contained code for special educational needs. The Court of Appeal rejected the argument.
Sedley LJ gave the leading judgment. He observed that s.9 is on the face of it relevant to all statutory functions under the Act, including functions relating to children with special educational needs. He continued.
'Parents like Mr and Mrs C whose preference is for an independent special school, while they cannot specify it (with potentially compulsory consequences) under para 3, are free to advance their preference as part of their representations under para 4. If they do so, the local education authority—and so in due course the Tribunal – is required by para 5 to take it into account before finally deciding the contents of the statement. This much Mr Oldham accepts. The argument therefore shrinks to the this little measure: does the...
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