Wendy Haining v Warrington Borough Council
| Jurisdiction | England & Wales |
| Judge | Master of the Rolls,Lord Justice Pitchford,Lady Justice Rafferty |
| Judgment Date | 02 April 2014 |
| Neutral Citation | [2014] EWCA Civ 398 |
| Date | 02 April 2014 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2013/2742 |
[2014] EWCA Civ 398
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM UPPER TRIBUNAL, THE ADMINISTRATIVE APPEALS CHAMBER
UPPER TRIBUNAL JUDGE WILLIAMS
HS14442013
Royal Courts of Justice
Strand, London, WC2A 2LL
Master of the Rolls
Lord Justice Pitchford
and
Lady Justice Rafferty
Case No: C3/2013/2742
David Wolfe QC (instructed by Maxwell Gillott) for the Appellant
Matthew Stockwell (instructed by Warrington Borough Council) for the Respondent
Hearing dates: 11 & 12 March 2014
Section 9 of the Education Act 1996 ("the 1996 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."
The question that lies at the heart of this appeal is how the words "public expenditure" should be interpreted. In relation to local authorities, do they mean expenditure incurred by local authorities in discharging their functions under the Education Acts as defined in section 573 of the 1996 Act ("education functions") (the narrow meaning); or do they mean expenditure incurred by any public authority as a result of the discharge by the local authority of the education functions (the wider meaning)? There is also a possible intermediate meaning, namely that "public expenditure" means expenditure incurred by a local authority in the discharge of any of its functions (including, but not limited to, education functions). Neither party contends for this intermediate meaning. In my view, they are right not to do so.
Ms H is the mother of B. He is 12 years of age and has significant special educational needs within the meaning of Part 4 of the 1996 Act in relation to which Warrington Borough Council ("Warrington"), as the responsible local authority, makes and maintains a Statement of Special Educational Needs.
B's parents would like him to attend W school ("WHS"), which is an independent residential special school (which Warrington accepts would meet his needs). Warrington says that he should go to G school ("GHS"), which is a maintained day special school. Warrington accepts that, if he attends GHS as a day pupil, it will also provide him with residential "respite care", which it currently provides for him at WHS. The comparative figures put before the Upper Tribunal (Administrative Appeals Chamber) (Judge David Williams) ("the UT") for the two schools were as follows. The total figure for a placement at WHS was £92,900 and the total figure for a placement at GHS was £90,441. The main differences between the figures were that (i) the school costs for WHS were £33,448 and the school costs for GHS were £61,238; and (ii) the cost of a placement at GHS included £29,336 for boarder/respite fees, whereas there was no such cost in respect of WHS.
Warrington made a Statement of Special Educational Needs in respect of B naming GHS. B's parents appealed. The First-tier Tribunal ("FTT") dismissed their appeal concluding at para 39 of its decision: "whatever way you look at it, a placement at WHS is much more expensive than a placement at GHS, would be over-provision, and could not be justified on educational grounds".
The parents appealed to the UT. Judge Williams expressed the provisional view that the decision of the FTT may be erroneous with regard to its analysis of what constitutes "public expenditure" in section 9 of the 1996 Act. He directed a hearing of this issue. He refused the parents permission to appeal on the other issues that they sought to raise. Following the hearing, he dismissed the appeal on the "public expenditure" issue. I refer to the material parts of his judgment at paras 22 to 26 below.
The issue that arises on this appeal is whether, in comparing the cost of placements at the two schools, Warrington (and on appeal the FTT and the UT) should have left out of account respite care and other costs that were to be met from public expenditure, and limited the comparison to the costs that were to be met from its education budget.
The statutory framework
The powers and duties of the local authority which are relevant to this appeal are those set out in Part 4 of the 1996 Act. 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) 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."
Schedule 27 makes provision for the making and maintenance of statements. 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."
The term "local education authority" wherever it appears in the 1996 Act was replaced by the term "local authority" by virtue of the Local Education Authorities and Children's Services Authorities (Integration of Functions) Order 2010 ("the 2010 Order") which was made pursuant to section 162 of the Education and Inspections Act 2006.
The previous authorities
The meaning of "unreasonable public expenditure" in section 9 of the 1996 Act (and its predecessor section 76 of the Education Act 1944) has been considered by courts and tribunals on a number of occasions. There are conflicting decisions on this issue, but it is common ground that none of them is binding on this court.
In C v Special Educational Needs Tribunal [1997] ELR 390 at p 401, I said that "public expenditure" must be a reference to expenditure by Local Education Authorities (LEAs), and did not include public expenditure by other bodies such as health authorities. I said that, so far as I was aware, LEAs had no right of access to the details of costs incurred, for example, by health authorities. If Parliament had intended LEAs to take into account the costs borne by health authorities, I would have expected this to be clearly spelt out in the legislation.
This decision was followed by Sir Richard Tucker in S v Somerset County Council [2002] EWHC 1808 (Admin), [2003] ELR 78. In that case the judge rejected the submission that the tribunal had erred by failing to take account of savings which would have been made to the local authority's social services budget if the parents' preferred school was named in their son's statement of special educational needs. He said at para 32 of his judgment that LEAs were responsible for ensuring that efficient use was made of their own resources without reference to those of other local authority agencies. He also said that a body such as a Special Educational Needs Tribunal ("SENT") would have no means of knowing what provision could be made for other agencies or what the amount of such provision would be.
In B v Harrow London Borough Council [2000] 1 WLR 223, the House of Lords considered para 3(3) of Schedule 27 to the 1996 Act. It was not a section 9 case. The LEA had issued a statement of special educational needs in which it named a school maintained by itself rather than one maintained by a neighbouring authority for which the child's parents had expressed a preference. On the parent's appeal, the SENT held, by reference only to the cost to the LEA of paying for the child to be educated in the neighbouring authority's school, that such a placement would be "incompatible with ……the efficient use of resources". This decision was upheld by Moses J. In allowing the appeal, the Court of Appeal held that in such cases para 3(3) also required consideration of the resources of the authority maintaining the preferred school and remitted the...
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