Upper Tribunal (Administrative Appeals Chamber)

THE UPPER TRIBUNAL Appeal No. HS 1444 2013 

ADMINISTRATIVE APPEALS CHAMBER

 

WH v Warrington Borough Council (SEN)

 

DECISION

 

The appeal is dismissed.

 

REASONS FOR DECISION

 

1 The appellants are the parents of a child whom I call B. B was diagnosed with autism before reaching school and later with attention deficit hyperactive disorder and sensory processing disorder. The relevant local authority officials prepared a statutory assessment for B before B started school. That authority is Warrington Borough Council, the respondents (the Council). I take the above from the latest statement of B’s special educational needs, Part 2 of which was agreed fully by the parents and the Council as part of the proceedings before the First-tier Tribunal.

 

Background to this appeal

2 B’s severe needs are not in dispute. But the provision of education for those needs has been in dispute for some time. When B was first given a statutory assessment the statement named a local school, referred to in the appeal as GLS, as the appropriate school. The parents did not agree and wanted another school, referred to as WHS. This disagreement was put before a special educational needs tribunal in 2009. The tribunal confirmed GLS as the school to be named. An amended statement was issued in 2010. Again, the parents sought the naming of WHS and again the matter was taken to a tribunal. That tribunal also confirmed GLS as the school to be named.

 

3 In 2012 the parents requested additional support for B at school, and therefore that the statement be amended. The parents again asked for WHS to be named in the statement. The Council’s officers refused. That resulted in B’s statement again being put before a tribunal, now the First-tier Tribunal. (I refer to the tribunal the decision of which is the one the parents are now appealing as the Tribunal.) Following a two-stage hearing and considerable discussion – described appropriately in the Tribunal decision as “what was in effect mediation” – the parents and the Council agreed Part 2 of B’s statement in full and much of Part 3. Two issues remained in dispute: aspects of the educational provision, including references to a residential environment and the need for a waking day curriculum; and the costs of competing school placements. 

 

4 The Tribunal gave a full decision, including ordering amendments to Part 3 of the statement for B. In its decision it set out its reasons for deciding that B did not need a waking day curriculum. It reconsidered the parental choice of WHS. It concluded at paragraph [39] that:

 

“If we are right, whatever way you look at it, a placement at WHS is much more expensive than a placement at GLS, would be over-provision, and could not be justified on educational grounds.”

 

5 The parents asked for permission to appeal against that decision. The application was refused by a First-tier Tribunal judge. It was renewed before me. I directed an oral hearing, indicating when doing so that in my provisional view it was arguable that the Tribunal decision may contain errors of law with regard to its analysis of public expenditure for the purposes of section 9 of the Education Act 1996. In order to expedite proceedings and reduce costs, I directed a hearing of the application on this issue, and invited the parties to agree to a rolled-up hearing of it (that is, a hearing both of the application and the resulting appeal). I also invited the parents to put forward any further grounds of appeal that they wished me to consider.

 

6 At the hearing Mr Pascal for the parents and Mr Stockwell for the Council agreed to a rolled up hearing on the question of relative costs. I heard their arguments in full on those issues. I heard Mr Pascal put forward further issues that, in his view, I should consider in the appeal. Mr Stockwell for the Council reserved the Council’s position on the additional grounds. I agreed with the parties that, to keep matters moving, I would consider the oral application as to the other grounds and then, if I accepted any additional grounds of appeal, invite a response from the Council.

 

7 By separate decision I have refused permission to the appellants to appeal on any grounds other than those indicated in my original direction, namely the question of costs. In doing so, I saw no reason to seek further submissions for the Council. For convenience, that decision is appended to this decision.

 

The issues in the appeal

8 For the purposes of this decision I take as accepted fact the agreed statement of B’s educational needs in Part 2 of the statement prepared for him, and the final form of the required educational provision set out in Part 3 of that statement as ordered by the Tribunal.

 

9 The question that remains in dispute in this appeal is whether the Tribunal correctly dealt with the handling of the parents’ preferred choice of WHS (an independent school) as the school to be named in Part 4, in deciding that placement at that school was “much more expensive” than a placement at the maintained special school, GLS, named by the Council.

 

10 This question arises because of the provisions of section 9 of the Education Act 1996. This applies because the Tribunal was required to choose between a maintained school and an independent school. The appeal is complicated not only by the complexity of B’s needs but also by two additional aspects of the case. The case must be decided in the light of the new arrangements introduced in 2013 for funding special education in both schools funded by a local authority and independent schools. It must also be decided in the context of a child who has been accommodated by the local authority for a number of days each week under section 20 of the Children Act 1989. A factual complication in this case was that the care provided under the 1989 Act was in part provided by the same establishment as that which the parents wished to have named as the school in Part 4, namely WHS.

 

The legislative and administrative framework

11 The Tribunal recognised that it had to apply section 9 of the 1996 Act. This provides:

 

“9 Pupils to be educated in accordance with parents’ wishes

 

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 training and the avoidance of unreasonable public expenditure. “

 

12 Several of the cases that have discussed section 9 have also discussed paragraph 3 of Schedule 27 to that Act. This applies a test related to resources where the choice of schools before a tribunal involves the parents choosing a maintained school (or similar) different to the maintained school named by the local authority. Sedley LJ analysed the Schedule 27 provisions in his judgment in the Court of Appeal in Catchpole v Buckinghamshire County Council [1999] LGR 321, where all the relevant legislation is set out. In his judgment section 9 applies to all statutory functions under the Education Act 1996 but Schedule 27 only applies to the more limited case of a choice between maintained or similar schools. 

 

13 Having noted how non-special needs cases are handled, Sedley LJ set out the task of a local authority and a tribunal in a case such as this as follows (at page 330c):

 

“For a child with special educational needs, the statutory scheme is very different. A series of quite onerous obligations comes to rest upon the local authority, calling for a series of difficult decisions which are plainly intended by Parliament to be geared so far as practicable to the child’s individual needs. The parents’ voice is heard in this process, if anything, more clearly than in the ordinary school selection process; but where paragraph 3 of Schedule 27 does not make parental choice determinative, it is because the child’s needs or the efficient use of resources point elsewhere. If the differences between the parents and the local education authority cannot be resolved by negotiation, the tribunal is there to resolve it. It is likewise required by the Act to follow a process of inquiry and reasoning directed to meeting the child’s needs, which both values and limits parental choice. In such a process, the reasons for the parental choice are of the first importance; the bare fact of parental choice, which in the nature of things is simply a function of their reasons, is logically of only marginal significance.”

 

Stuart-Smith and Thorpe LJJ agreed.

 

14 The other key provision for the purposes of this appeal is section 20 of the Children Act 1989. This provides:

 

“20 Provision of accommodation for children: general.

 

(1)Every local authority shall provide accommodation for any child in need within their area who appears to them to require accommodation as a result of—

(a)there being no person who has parental responsibility for him;

(b)his being lost or having been abandoned; or

(c)the person who has been caring for him being prevented (whether or not permanently, and for whatever reason) from providing him with suitable accommodation or care.

 

(2)Where a local authority provide accommodation under subsection (1) for a child who is ordinarily resident in the area of another local authority, that other local authority may take over the provision of accommodation for the child within—

(a)three months of being notified in writing that the child is being provided with accommodation; or

(b)such other longer period as may be prescribed.

 

(3)Every local authority shall provide accommodation for any child in need within their area who has reached the age of sixteen and whose welfare the authority consider is likely to be seriously prejudiced if they do not provide him with accommodation.

 

(4)A local authority may provide accommodation for any child within their area (even though a person who has parental responsibility for him is able to provide him with accommodation) if they consider that to do so would safeguard or promote the child’s welfare.

 

(5)A local authority may provide accommodation for any person who has reached the age of sixteen but is under twenty-one in any community home which takes children who have reached the age of sixteen if they consider that to do so would safeguard or promote his welfare.

 

(6)Before providing accommodation under this section, a local authority shall, so far as is reasonably practicable and consistent with the child’s welfare—

(a)ascertain the child’s wishes and feelings regarding the provision of accommodation; and

(b)give due consideration (having regard to his age and understanding) to such wishes and feelings of the child as they have been able to ascertain.

 

(7)A local authority may not provide accommodation under this section for any child if any person who—

(a)has parental responsibility for him; and

(b)is willing and able to—

(i)provide accommodation for him; or

(ii)arrange for accommodation to be provided for him,

objects.

 

(8)Any person who has parental responsibility for a child may at any time remove the child from accommodation provided by or on behalf of the local authority under this section.

 

(9)Subsections (7) and (8) do not apply while any person—

(a)in whose favour a residence order is in force with respect to the child;...

(aa)who is a special guardian of the child; or

(b)who has care of the child by virtue of an order made in the exercise of the High Court’s inherent jurisdiction with respect to children,

agrees to the child being looked after in accommodation provided by or on behalf of the local authority.

 

(10)Where there is more than one such person as is mentioned in subsection (9), all of them must agree.

 

(11)Subsections (7) and (8) do not apply where a child who has reached the age of

sixteen agrees to being provided with accommodation under this section.”

15 In Catchpole, Thorpe LJ emphasised that the function and duty of a county council under the Education Act 1996 is distinct from its function and duty under the Children Act 1989. The relevance in this case, in the view of Mr Pascal, is factual. Expenditure on social welfare under the Children Act 1989 by a local authority is public expenditure. The Tribunal records that the parents requested help from the Council under section 20 and that as a result B became a child in care. It is not clear from the decision whether the Council considered itself under a duty to provide accommodation for B under this section or whether it was providing the care on a discretionary basis. I was not informed of any court orders or other formal assessments about B’s needs other than the educational assessments before the Tribunal. It is therefore unclear on what basis the Council provided the accommodation for B. I heard no argument on this point, so can rely only on the facts as found by the Tribunal. These are (in paragraph [9]) that B stays from Monday to Thursday at WHS after school during term time and goes to a holiday club there during school holidays and every other Saturday.

 

16   The new element in this framework is the way in which school funding works for special needs placements from 2013-2014. This is set out in the English Department for Education’s publication School funding reform: arrangements for 2013-14, chapter 3. That chapter deals with arrangements for those with high needs. It was common ground that this applied to B’s education from April 2013. The approach is described in the publication as a “place-plus” approach. For those under 16, the new arrangements are to provide base funding of £10,000 per planned place (paragraphs 90.c and 96). Top-up funding above this base figure or threshold is based on individual assessed needs (paragraph 90d). It is paid by the commissioning local authority on a per-pupil basis (paragraph 96). Top-up funding is a matter for local determination and agreement between commissioners and providers (paragraphs 108 and 109).

 

17 It is to be hoped that this new arrangement will succeed in simplifying the identification of costs in special educational needs cases and sidestep some of the issues that required the close attention of the Court of Appeal in the appeal considered in EH v Kent County Council [2011] LGR 798 and the decisions discussed in that case. But, as this case emphasises, it will certainly not remove all the difficulties.

 

What public expenditure is relevant to a placement of B?

18 As applied here, that makes the initial element in the comparison of the costs of a placement at GLS and at WHS simple. Both would have the same base figure of £10,000.

 

19 At first impression, it might be thought that the only other element in the discussion under the 2013-14 arrangements is that of the top-up costs if B attended GLS as against those if B attended WHS. That is not, Mr Pascal submitted, what section 9 mandates. Rather, it mandates identification of any relevant “public expenditure” so as to identify whether if there is any additional “public expenditure” incurred if B is placed at WHS rather than at GLS such that that expenditure is, or can be considered, “unreasonable”.

 

20 One aspect of that expenditure, as discussed on many occasions in tribunals dealing with these questions, is that of transport costs. That is, however, usually a matter of fact that can be established without any issues of law being involved. If a disabled child needs transporting from home to school by special transport, as if often the case, the cost of that transport is inherently part of the public expenditure on educational provision for the child unless it is borne by the parents or a charity or other non-public source.

 

21 That is an element in the differences in costs of placements at the two schools, but it is not one involving any issue of law once the relevant facts are established.

 

22 The major disagreement between the parties in this appeal is more significant, and raises issues of principle about what is to be included in the calculations necessary to inform a local authority’s decision under section 9.

 

The parents’ contentions

23 Mr Pascal for the parents contended that a holistic view of section 9 required that the Tribunal take into account B’s total needs. These included the respite care provided and the Saturday and holiday clubs. These were funded out of public expenditure, not by the parents, and therefore were directly relevant to any calculation under section 9. I was told (though this is not a finding of the Tribunal) that respite care was provided for a period of more than 75 days a year. The Tribunal indicated that it understood that the care was provided originally for 2 days a week but because of the illness of a sibling of B had become provision on the basis of 4 nights a week (paragraph [17]).  The Saturday club and holiday club attendance costs were in addition to that cost, but were also public expenditure.

 

24 In Mr Pascal’s submission the full costs of 4 day residential provision and both clubs should have been taken fully into account as part of the relevant public expenditure under section 9. If the Tribunal did not have enough facts to do this the, in the words of Mr Lewis, it should have acted inquisitively and its failure to do so was an error of law. I am not sure that his term was the most felicitous, but as Sedley LJ stated in Catchpole it was under a duty to conduct any appropriate inquiry.

 

25 In his submission, had the Tribunal taken a full view of the relevant figures, it would not have been able to decide the case by reference to unreasonable public expenditure. This was because the figures put before the Tribunal showed that the total cost to the public of a placement at WHS was actually less than the total cost of placing B at GLS if that calculation took into account, as it should,  all public expenditure costs.

 

26 The figures put before the Tribunal by Mr Lewis, based on the provision of social care for 4 days a week and including the parents’ view of the relevant levels of additional support for B, were (rounded to the nearest £1):

 

For placement at GLS:

 

School costs:

Agreed top-up from the Council (above the £10,000) £  8,122

Additional 1:1 support £15,826

Transport £  9,500

 

Social care for 4 days a week:

Boarder/respite fees £29,336

Residential care worker costs £20,604

 

Holiday and Saturday costs £  9,512

 

Total: £92,900

 

For placement at WHS:

 

School costs:

Agreed residential top-up costs £50,181

0.5 TSA support £11,057

Residential care worker costs £20,604

Holiday and Saturday costs £  9,512

 

Total of above £91,354

 

Less 1% reduction from WHS: (£ 913)

 

Final total: £90,441

 

27 In addition it was submitted to the Tribunal that further costs were also relevant of B were to remain at GLS. These included the transport to the Saturday and holiday clubs (£2,200); 10 hours therapy at £65 an hour (£650); and additional support at 1:1 levels during vulnerable times assumed as 0.33 of the cost of a TA (£5,222).

 

28 Behind those figures was a concession made by the parents that a full analysis of the figures must note. The parents accepted that should B attend WHS as a weekly boarder, then they would provide his transport or pay his fees. This, it would appear, applied to weekly transport but not weekend or holiday transport. Nonetheless, it would constitute a saving of public expenditure.

 

29 From this it was argued that no issue arose about public expenditure in applying section 9. If anything, there would be a net saving of public expenditure by placing B at WHS. So the parental choice should prevail.

 

The Council’s view

30 Mr Stockwell robustly rejected that approach. The First-tier Tribunal had the facts before it and had reached a clear decision without, he submitted, any error of law. The tribunal was right to decide that the social care provided for B was not part of his education. It was therefore right to leave it out of account.

 

31  The figures put forward by the Council, he submitted, showed the true position. The costs of a placement at GLS, including the base fee and the top-up fee and transport costs, were common ground. The need for additional 1:1 and 2:1 support was not.

 

32 Turning to the costs of a placement at WHS, he submitted that the 1 per cent fee reduction was speculative and should be ignored. The Tribunal was right to take that view. This had been raised as a separate issue in the original grounds of appeal. I indicated when considering the application that in my view that was purely a question of fact and that I could see nothing wrong in the decision of the Tribunal that this was to be left out of account. As noted in the application decision, this was accepted for the parents. In any event, if this was the only error I would regard it as immaterial to the outcome decision.

 

33 More important is Mr Stockwell’s submission that the respite costs were not relevant to the assessment of the public expenditure on B for the reasons given by the Tribunal. Even if the Tribunal was wrong on that, the respite costs should still be ignored as the provision was only temporary, and the Tribunal had not erred on that. The Council also disputed the inclusion of 0.5 TSA support at WHS but 1:1 support at GLS. It was unclear on what that was based. 

 

34 I note from the decisions of the tribunals in 2009 and 2011 handed in by Mr Stockwell that this dispute as to costs is something that had caused disagreement between the parties in both those appeals as well as this appeal. So both sides were, if I can put it this way, going over old ground on this topic. However, the analyses conducted by those tribunals is of no assistance here.

 

The tribunal’s approach

35 I have dealt with the 1 per cent discount already. There is no error of law in that aspect of the Tribunal’s decision so its factual finding on this stands.

 

36 The Tribunal accepted the agreement of the parties about the basic cost of a placement at GLS as being £33,448 from 1 April 2013. It also accepted the parent’s agreement to meet any travel costs to and from WHS if B were a weekly boarder.  

37 The Tribunal avoided a detailed decision about whether it was proper to add in 1:1 costs for GLS but only 0.5:1 costs for WHS. It noted that if the Council was right, then the WHS costs should also include 1:1 costs and that then the fees for WHS would be £62,499.

 

38 It rejected the inclusion of the cost of social care and the provision of holiday and Saturday costs for B. Its decision on these issues, central to the difference between the parties, reads as follows:

 

“[36] Mr Lewis said that we had to take into account, whatever happened, the cost of social care for B if he were placed at GLS. We are not persuaded that that is the case. In any event, we do not know how much social care will be as the LA must have a review shortly, and they may well review the four overnight stays a week at WHS, given that B’s sibling’s medical difficulties, we were told, have recently been subject of an operation and were under control. We were not persuaded that the present arrangement for respite care is part of this child’s education and provision, especially given that we have found that he does not need a waking day curriculum.

[37] Mr Lewis’s cost scales were based clearly adding onto the school fees for GLS, social care, as he put it, for four days respite at WHS. We are not persuaded that we have to, or are required to take that cost into account.

 

[38] For the avoidance of doubt, although both the LA and Mr Lewis seemed to suggest that we should take into account transport to Saturday and holiday clubs, we are not persuaded that this is part of B’s educational provision. Further, Mr Lewis wished us to all for “therapies estimate 10 hours at £65.00 per hour”, but he again conceded that this was a guess on his part and did not have any costings that could assist us. So we decline to take that into account.

 

[39] If we are right, then whatever way you look at it, a placement at WHS is much more expensive than a placement at GLS, would be over-provision, and could not be justified on educational grounds.”

 

39 The only reference to the arguments in law about section 9 made by the Tribunal is in paragraph [11]:

 

“the LA said that to give effect to the parental wishes would lead to unreasonable public expenditure and thus we had to consider the line of cases including O v Lewisham (2010), EH v Kent County Council (2010) and Oxfordshire v GB (2001).”

 

While I have no doubt those were considered, no further mention is made in the decision of them or of any other authorities. I consider each of those decisions so far as relevant in this decision.

 

40 The reasoning in paragraphs [36] to [39] conflates several points, and needs some unpicking. First, the 10 hours of therapy were rejected for want of evidence. There is no error of law in that. Tribunals should clearly resist attempts by parties to inflate figures by guesswork and this Tribunal was right to do so. It is entirely wrong to speculate about additional needs in this way.

 

41 Second, the Tribunal stated twice that it does not consider that it was required to take the social care costs into account. But it does not identify why it took that view. 

 

42 Third, it gave as an alternative explanation for leaving out the respite costs the uncertainty of any continuing cost under that head.

 

43 Fourth, it rested its decision in part on its view that the respite costs and the costs of transport to the holiday and Saturday clubs are not education and provision (in paragraph 36) which I take to mean educational provision (as in paragraph 39).

 

44 A fifth reason appears to be the effect of the separate decision that B does not need a waking day curriculum. On that basis he does not need the provision sought at WHS even if the costs are educational costs.

 

What is relevant to section 9?

45 Section 9 of the Education Act 1996 and its history were examined in some detail alongside Schedule 27 to that Act by Lord Slynn when giving the leading judgment of the House of Lords in Burridge v London Borough of Harrow, 27 January 2000. The 1996 Act consolidated provisions about special educational needs made for the first time in the Education Act 1993. In his opinion, with which the other members of the House of Lords agreed in full, the approach to the legislation had as its starting point “that Parliament has clearly established separate schemes, one for special schools and one (ignoring other exceptions) for other schools.”

 

46 The question before the House of Lords involved the naming of a maintained school within its area by a local authority and the naming of a maintained school in the area of another local authority by the parent. This involved consideration of paragraph 3 of Schedule 27 to the 1996 Act. This required the authority that was responsible for the assessment of the needs of the child to consider if

 

“the attendance of the child at the school (named by the parent) would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources”.

 

Having considered that requirement in the light of the relevant provisions in the Secretary of State’s Code of Practice, Lord Slynn concluded:

 

“What it means is that the resources concerned are those of the authority whose resources will be used, ie the authority who pays.

 

I do not regard this result as undermined or excluded by reference to section 322(3)(a) of the Act which provides that a Health Authority if consulted may refuse to help a local education authority if the authority considers that, “having regard to the resources available to them [the health authority]“ it may refuse help. Parliament made it clear there, as the Secretary of State did for the LEA in the Code. It does not follow that references in paragraph 3(3) of Schedule 27 cannot, or do not mean “their resources”. In my view that is what the words do mean.

I do not, in any event, consider that it can possibly be intended that the resources other than the two authorities directly concerned should be considered. That would place a very difficult task on the local education authority. If such an exercise had been intended, it is more likely that it would have been imposed on the Secretary of State.”

 

This analysis, he accepted, may result in making it more difficult for parents to argue that their children should be sent to special schools out of the area of the local education authorities. “But that is what, in my view, Parliament has clearly provided.”

 

47 Applying that analysis to the case before it, the House decided that the only resources relevant in that case were the resources of the local education authority paying for the child’s education.

 

48 That decision focussed on paragraph 3 of Schedule 27. I consider below how far that also applies to section 9, given that their Lordships noted that section to be part of what Lord Slynn identified as the separate scheme created from 1993 for special education.

 

49 The express mention by Lord Slynn of health authorities is important. Statements of special educational needs follow standard form and involve six parts, although Part 5 and Part 6 are rarely mentioned in tribunal hearings. Part 5 states the child’s non-educational needs. In this case three such needs were identified: routine hearing and vision tests; home to school transport; and the support of social care. Part 6 is non-educational provision.

 

50 The final form of the statement for B suggests that Parts 5 and 6 were given no consideration in the proceedings of this appeal. Part 5 is misnumbered Part 4. Part 6 also contains an obvious mistake that makes no sense in cross-referencing to Part 5 by noting “1-3 to be arranged through the [local NHS] primary care trust” although there is no “1-3” nor three matters within the jurisdiction of the NHS in Part 5. Part 6 then refers to transport being arranged through the passenger transport unit and notes that the Council is the responsible council for social care. 

 

51 Does the duty of the local authority under section 9 to consider public expenditure nonetheless include all public expenditure, including that of health authorities and of any central government funding? Or, reading it more narrowly, does it cover all local authority expenditure? This would include, for example, additional elements of housing benefit or council tax reductions payable for the disabled, money that would or could be spent by the authority on alterations to the child’s house or, as in this case, child welfare expenditure? In my view the opinions of their Lordships in Burridge suggest not, but that is not the view taken in other cases.

 

52 The argument for the parents before me was that the authorities on section 9 required that a holistic approach be taken to the expenditure incurred in meeting B’s needs both educational and non-educational. That argument relied primarily on the decision of Deputy High Court Judge Andrew Nicol QC sitting in the Administrative Court in O v Lewisham London Borough Council [2007] EWHC 2130 (Admin).

 

The Lewisham case

53 Mr Stockwell invited me to approach this case with caution. He pointed out that the judge himself recognised in his decision that he had not seen the full authorities to which he referred. In my respectful view, the decision of the House of Lords in Burridge must be the starting point for any discussion of the caselaw in this area. That is important because the argument for the appellant in Lewisham, as rehearsed by Mr Nicol QC, was that:

 

“… on the authority of B v London Borough of Harrow [2000] the Tribunal could only take account of the costs (and any savings) to Lewisham as a local education authority when considering whether a placement … would be an inefficient use of resources for the purposes of Schedule 27 paragraph 393). However, he submits that the Tribunal should have considered the effect of section 9. He argues that section 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.”

 

I cite that as it puts the argument for the parents in this appeal very clearly, and it seeks to meet the authority of the House of Lords in Burridge by treating the duty under section 9 as a separate duty on the local authority arising after consideration of the duty under Schedule 27 paragraph 3.

 

54 It is in my view now beyond argument that a local authority must have the general principle of section 9 in mind whenever naming schools in Part 4 of a statement of special educational needs. Lord Slynn noted in Burridge the importance of this principle, taken from the 1993 Act, and now placed in the first part of the 1996 Act.  This confirms, but does not rely on, the decision of the Court of Appeal in C v Buckinghamshire CC [1999] ELR 179 in which Sedley LJ stated:

 

“I can see nothing either in Part IV (which includes Schedule 27) or in section 9 to suggest that the general principle that pupils are to be educated in accordance with the wishes of their parents is to be disregarded in relation to children with special educational needs.”

 

55 The judge in Oxfordshire, somewhat surprisingly in my opinion given the authority cited above, had to deal with an argument that section 9 did not apply in that case because it was covered by Schedule 27. He decided that it did, and I entirely agree with that view as consistent with authority.

 

56 The problems with that approach, he noted, was that this would be of little help to parents in the position of the appellants in that case if “public expenditure” is no wider than “resources”. I pause to ask why it should be expected to be of separate help, a point that the judge assumes. It is a general principle, not a specific duty, stated at the start of a major consolidating Act and applying generally to it. It imposes no specific duty and is not set out in the legislation as a detailed stage in a set procedure.

 

57 Having established that starting point, the judge considered the significance of section 9 in that case. The facts were in part the same as this case, namely that a local authority was incurring respite expenditure on a child in addition to educational expenditure... He concluded:

 

“[41] …In my judgment the term “public expenditure” in section 9 is not confined to the expenditure of the LEA.” 

 

58 On what authority was that based? Mr Stockwell pointed out that it was based on a review of three other cases. The first was a citation in an unidentified case of a passage from a decision of Dyson J (as he then was) in C v Special Educational Needs Tribunal [1997] ELR 390 deciding a case under the former section 76 of the Education Act 1944. That section predated the current structure of the Education Acts but previously imposed the general duty to have in mind unreasonable public expenditure. That, in the view of Dyson J, did not include health authorities and “must be a reference to public expenditure by educational authorities”. A full report of that decision can be found at [1997] ELR 390. It was a fully argued case in which the appellants asked the Court to direct the tribunal to move the provision for occupational therapy and physiotherapy for the child in question from Part 5 to Part 3 of the child’s statement. The context was one where there was a choice to be made between the local authority’s school and an independent school, so that section 9 but not Schedule 27 applied. The judge went on to decide, after the cited passage, that the costs in question in that case were health authority costs not local education authority costs. Accordingly, there was no basis for criticising the exclusion of those costs in this case. That agrees with the conclusion in Burridge about health authority, although Dyson J does not cite that decision.  

 

59 It is also appropriate to note the approach taken by Dyson J in his decision to the court’s role in cases such as this, where the decision is the decision of an expert tribunal that expenditure is or is not on educational provision:

 

“In my judgment it is only in the clearest cases that the court should find an error of law arising from a failure by a tribunal to interfere with an LEA’s classification of provision.

 

60 The second was a concession made before a judge of the Administrative Court by the local authority in Edwards v Cornwall County Council, unreported, 2001. With respect I fail to see the precedent value of an unexplained concession in an unreported case of which we are not made aware even of the facts.

 

61 The third of the cases was Shead v Somerset County Council [2002] EWHC 1808, a decision of Sir Richard Tucker sitting in the Administrative Court. His decision, cited at some length in the decision in Lewisham, followed the views of Dyson J.  However, as Mr Nicol QC noted later in his judgment, this was the same case as S v Somerset County Council considered by the Court of Appeal at [2003] EWCA Civ 195, in which Sedley LJ regarded it as an open question whether “public expenditure” in section 9 was confined to the education budget of the local authority in question. He noted, however, that this was a comment made when that Court was refusing permission to appeal and was not something ordinarily cited as precedent.

 

Other authorities

62 Another relevant authority is that of the Court of Appeal in Oxfordshire County Council v GB [2001] EWCA Civ 1358, [2002] ELR 8, a decision noted by the First-tier Tribunal in this case. This was referred to by Mr Nicol QC in his decision for other reasons but not in connection with the comments of that Court on section 9. The case is another where section 9 was directly in point but Schedule 27 was not. The focus was on how the public expenditure of a local authority should be calculated for the purposes of section 9. Put simply, the local authority in that case argued for the marginal cost of placing a child at a school, while for the parents it was argued that it was a matter for a tribunal to decide how to calculate the costs. It was therefore permissible for a school to look at the global educational costs of the local authority including “the amortised cost of school buildings and so forth”. Sedley LJ gave the judgment of the Court, to which Aldous and Robert Walker LJJ agreed. It noted that there was no authority directly in point but also noting the opinion of the House of Lords in Burridge. It rejected the arguments for the appellants, at least in an open-ended way, because:

 

“[15] … It is of course true that unreasonable public expenditure is not a term of legal art. But neither is it, in its present context, a protean concept capable of producing opposite outcomes on the same facts and figures depending on the individual tribunal’s choice of accountancy method. In our judgment the chief object of the last part of section 9 is to prevent parental choice placing an undue or disproportionate burden on the education budget. When one considers that a single placement in the independent sector may well cost a ring-fenced education budget more than a teacher’s salary, one can readily see why.

 

[16] In cases like the present, the parental preference for an independent school over an available state school, while perfectly reasonable, may have difficult cost implications for the LEA. In that event it is for the LEA, or on appeal the SENT, to decide whether those cost implications make the expenditure on the independent school unreasonable. This means striking a balance between (a) the educational advantages of the placement preferred by the parents and (b) the extra cost to the LEA as against what it will cost the LEA to place the child in the maintained school.”

 

63 In the Lewisham case the judge disagreed with Dyson J and Sir Richard Tucker, and interpreted “public expenditure” as “not confined to the expenditure of the LEA” (paragraph [41]. On the facts of that case, this meant that the tribunal should take account of respite costs. He concluded (at paragraphs [47] and [48] that:

 

“If the tribunal had taken account of the evidence that the cost of the PH school was very considerably matched by savings on other public expenditure … I cannot say that the result would necessarily or inevitably have been the same…”

 

The appeal was therefore allowed. I have to comment that I am surprised he did so when faced with the authority of the Court of Appeal in Oxfordshire v GB.

 

64 The Lewisham decision was cited in detail and supported by the decision of HHJ Pearl sitting in this Chamber in SK v Hillingdon LBC [2011] UKUT 71 (AAC), [2011] ELR 165, which was also cited to me. I note that Oxfordshire v GB was referred to by the First-tier Tribunal in that case also but that Judge Pearl adopted without further comment the references by Mr Nicol QC to that case as an example of how to handle transport costs and that he made no further reference to it. 

 

65 This question has been looked at on other occasions in the Upper Tribunal not cited to me.  For example, I was not reminded of my own comments in B v Worcestershire CC [2010] UKUT 292 (AAC) at paragraphs [25] to [36] about section 9, a decision referred to in the decision of Judge Ward in the most recent Upper Tribunal decision on section 9 of which I am aware, made on 10 06 2013 under file number HS 2286 2012. AS he noted, In B v Worcestershire I sought to discourage disproportionate precision in the operation of section 9 and to encourage tribunals to look at probable costs and ignore possibilities.

 

66 I must also note the views of the Upper Tribunal and Court of Appeal in Dudley Metropolitan Borough Council v Shurvington [2012] EWCA Civ 346, a Court of Appeal under the presidency of the Master of the Rolls.

 

67 The Court was considering an appeal from the decision of the Upper Tribunal issued as [2011] UKUT 67 (AAC), a decision noted as not following another decision of the Upper Tribunal, namely MH v Nottinghamshire CC [2009] UKUT 178 (AAC). The focus in both the Upper Tribunal and the Court of Appeal was on the often vexed question of transports costs associated with the naming of a school in a statement of special educational needs. In particular, they were concerned with how a local authority and a tribunal should handle the offer of parents to meet the transport costs associated with the placement of their choice but not to meet the placement that was chosen by the local authority.

 

68 The Court of Appeal set out a most useful updated summary of the relevant legislation. Of importance here is that, aside from its analysis of the status and handling of transport costs, it reviewed the authorities about naming schools and dealing with section 9 and Schedule 27. Davis LJ, giving a decision with which the Master of the Rolls and Richards LJ agreed, commented on the “eminent good sense” and “obvious force” of the remarks of Mr Nicol QC in Lewisham in directing a tribunal to inform itself of the full picture and adopt a holistic approach. At the same time he noted that the judge had carefully stated that this was to be “consistently with the legislative framework”.

 

69 The Court of Appeal concluded after a full examination that the decision of the Upper Tribunal was correct and conclusive on most points covered. However, the Court questioned one paragraph in that decision, critical to a full consideration of this appeal. At paragraph [42] of its decision the Upper Tribunal decided:

 

“[42] If the tribunal concludes that there would be an incompatibility with the efficient use of resources for the LA to meet the additional transport cots to the parent’s preferred school, then there is no requirement to specify the latter. The tribunal should then consider whether that school should nonetheless be specified taking account of the duty to have regard to parental preference under section 9. If the conclusion is to that effect after taking into account transport costs to the parents’ preferred school as in paragraph 40 above (and applying the potentially broader calculus of “unreasonable public expenditure”: see the illuminating judgment of Mr Andrew Nicol QC as he then was in [Lewisham], then for the same reasons the parents’ preferred school alone should be named in Part 4 of the Statement.”

 

70 Davis LJ expressly excluded this paragraph from his judgment upholding the Upper Tribunal decision because:

 

“I do have reservations as to the reasoning of the UT in paragraph 42 of its decision, in formulating a second stage of the required process.”

 

He cited in support of this reservation the opinion of Lord Slynn in Burridge that I have cited above. However, that reservation did not affect the judgment of the Court in that decision.

 

71 That decision is therefore technically not binding on me. But it does, if I may respectfully so comment, raise one of two major concerns I had with this appeal and the application to it of the “holistic” thinking urged by Lewisham and some subsequent decisions. Further, in so doing it echoes the importance of the decision of the House of Lords in Burridge. And it raises similar concerns to those of the earlier Court of Appeal in Oxfordshire County Council v GB.

 

Conclusions

72 I consider it right because of those views and my doubts to revisit what the literature has termed the “wide” and “narrow” interpretations of section 9.

 

73 The first concern to be noted is that raised by the Court of Appeal in Shurvington. Is it correct that a local authority faced with a conflict between local authority funded schools must first look at the paragraph 3 question of efficient use of resources and then look at the section 9 question of unreasonable public expenditure? I do not need to revisit that here save that it focuses attention on my second concern and, in my view, demands further attention to the reasoning of the House of Lords in Burridge and the Court of Appeal in Oxfordshire v GB about practicalities being relevant to a proper understanding of what Parliament intended to be taken into account for the purposes of section 9.

 

74 The second concern is whether full consideration has been given by those who follow the “wide” view to the effective meaning of “public expenditure”. As the literature reflects, the debate in most of the authorities has been focussed on respite care or transport costs. Attempts to include health authority expenditure have been given short shrift in more than one decision as noted above. This is despite the fact that consideration must be given to that aspect of a child’s care in Parts 5 and 6 of a statement. The other issue on which attention has been focussed is that of expenditure by one local authority rather than another. And, of course, non-public expenditure, such as the parents meeting transport costs, is irrelevant.

 

75 As I put it to the parties in argument in this case, I have seen nothing in the authorities taking a full view of the kind of “holistic” view of public expenditure that the authorities suggest should be relevant. For example, as judges of this Chamber are fully aware, children with special educational needs are often also children who are disabled and who, or whose parents, have entitlement to a range of state and local benefits. This may, for instance, involve the local authority in decisions about the proper level of award of housing benefit and, since this year, council tax reduction. It may involve costs shared between the local authority and the local health service trusts in providing attention and facilities for the child and in the child’s home. Looking more widely, it may involve the Department for Work and Pensions and Her Majesty’s Revenue and Customs in questions about state benefits and tax credits, for example the carer’s allowance payable to those who care for others for 35 or more hours a week. Taken to its logical limit it could include public grants and tax breaks provided for the parents or guardians or those who assist the child in some way (such as a parent’s employer).

 

76 Taking these arguments to logical limits was precisely what I sought to discourage in B v Worcestershire County Council. But while I would not expect the logical limits to be researched by any authority, there are in my view serious questions to be asked about the practicality of identifying “holistically” the public expenditure costs of treating a child with special educational needs who is placed in one school rather than another. And particularly in current budget conditions it should never be forgotten that further public expenditure will be incurred by an authority, and a tribunal, required to examine the public expenditure of any other authority in conducting that examination both by that authority or tribunal and the other authority. This is an inevitable element of the kind of two stage procedure that concerned Davis LJ.

 

77 Nor should it be forgotten that, as Sedley LJ pointed out in Oxfordshire CC v GB, education budgets may be ring fenced within a local authority. If they are, of what help is it to a local authority’s education budget if it has, as here,  to pay out a significant sum for a child, while some other budget outside the ring fence, or possibly in some other authority or indeed at national level, receives the benefit of the saving. The figures in issue in this case make precisely the point referred to by Sedley LJ in his judgment. The extra cost to the local education authority that the parents ask be incurred might save money for the social services budget of the local authority, but they would cost the education budget the price of a teacher’s salary. Would the education budget be able to recoup that from the social welfare budget? I do not know, but neither does the appellant. I suspect that it is unlikely when education budgets are often ring-fenced but social welfare budgets are not. And the practical point behind that is whether a tribunal, on an appeal, is expected by Parliament to investigate such matters. I think not.

 

78 Although I do not pursue this point further as it was not raised at the hearing, it may also be arguable that an overall saving to public expenditure that left the immediate education budget with a heavy cost could still render the public expenditure as a whole unreasonable from the viewpoint of those with control over the local authority’s education budget but no other budget.

 

79 I can see nothing in the authorities adopting what has been termed the “wide” view that address any of these practical difficulties beyond the consideration of the legal powers enabling one authority to enquire of another (but not the costs or delays in doing so). I therefore have serious reservations about imposing under section 9 a requirement in every case, whether Schedule 27 applies or not, a duty on a local authority - and therefore on a tribunal under its investigative jurisdiction - to explore all probable public expenditure costs and savings when reaching a determination about the regard to be had to section 9 in a particular case.  And I cannot see any logical stopping point within the concept of “public expenditure” between the expenditure of a local education authority (or perhaps of two education authorities in some cases)  from its budget and a “holistic” view that takes in any probable public expenditure on or for the child by any other public authority.

 

80 I therefore respectfully follow what I consider to be the authority of the House of Lords in Burridge and the Court of Appeal in Oxfordshire v GB read together with the recent comments of the Court of Appeal in Shurvington and do not follow the decision in the Lewisham case or the decisions that have followed that decision at this level. Putting it another way, for the above reasons I take the narrow view not the wide view of the proper interpretation of “unreasonable public expenditure” in section 9 of the Education Act 1996.

I accordingly decide that in this case the First-tier Tribunal was entitled to leave out of account the respite care and other costs that were met from public expenditure but were not met from the education budget of the Council

 

Summary

81 My conclusion is that the decision of the First-tier Tribunal is to be analysed by reference to the evidenced costs to the Council’s education budget in placing B at GLS or WHS and not by reference to respite or other non-educational costs. It may be that the First-tier Tribunal decision was somewhat compacted and the Tribunal could better have separated out the strands in its thinking. But the essential point is whether its outcome decision is or is not materially affected by any error in law on its part. I can see no basis on which, on a proper analysis of the law, the First-tier Tribunal would have reached a different conclusion to the conclusion it did reach that the appeal failed before it for the reasons on which the Council relied. In particular, the First-tier Tribunal was correct in not taking into account the respite and other costs that did not come from the Council’s education budget. As that was the only issue before me, I must dismiss the appeal.   

 

David Williams

Upper Tribunal Judge

7 08 2013

 

[Signed on the original on the date stated]

 

 

 

 

 

ANNEX:

 

NOTICE OF DETERMINATION OF

APPLICATION FOR PERMISSION TO APPEAL

 

Permission to appeal is granted in respect of the question whether the Tribunal correctly applied section 9 of the Education Act 1996 in making its decision about placing the child in the school named by the Council rather than the school named by the appellants.

 

I refuse permission to appeal on all other grounds.

 

REASONS

 

1 The appellants, the parents of a child I call B, are asking for permission to appeal from a decision of the First-tier Tribunal (the Tribunal) about the terms of a statement of special educational needs prepared by the respondents, the Council, for B.

 

2 When I first considered the application, I indicated that I was minded to grant permission to appeal on one issue, namely the treatment by the Tribunal of the relative costs of education at the school named by the parents for Part 4 of the statement as compared with the costs of education at the school named by the Council. The Tribunal confirmed the Council’s proposal on this point. I also indicated that I was not persuaded from the papers that any other of the grounds of appeal put forward by the parents showed any arguable error of law material to the decision made by the tribunal.

 

3 In order to expedite the appeal that would result from this provisional view but at the same time to protect the appellant’s right to an oral hearing of their full grounds of appeal, I directed an expedited rolled-up hearing subject, under the Tribunal Procedure Rules, to the consent of both parties.

 

4 A full hearing took place in Manchester on 12 07 2013. The parents attended and were represented by Mr Pascal accompanied by Mr Lewis. Officers of the Council attended and the Council was represented by Mr Stockwell.

 

5 Mr Stockwell objected to the Council having to answer without notice to the arguments of the appellants on issues other than the issue of relative costs indicated by me in my directions and related issues. However, he consented on behalf of the Council to a rolled-up hearing on the issues of costs and the application of section 9. It was therefore agreed that I would hear full arguments on that question and hear any additional grounds of appeal separately. I am grateful to both counsel for agreeing in this way both to expedite this appeal and to keep the costs limited.

 

The costs issue

6 I grant permission to appeal on the section 9 issue. There are plainly arguable questions of law about how the Tribunal decided this question and whether it dealt with the matter adequately in its decision. This is the subject of a full decision by me and need not be considered further in this decision. For convenience, I am appending this decision to my full decision on the appeal.

 

The other issues

7 For the appellants Mr Pascal presented a number of other issues on which he contended the tribunal had erred and that the error was an error of law.

 

8 I indicated in argument that I thought some of the issues were issues of fact, even if the tribunal had erred with respect to them. One was the issue of the availability of a one per cent discount in quantifying the fees chargeable by the school named by the parents. In discussion, Mr Pascal conceded that this was essentially a question of fact and that it did not give rise to any error other than as part of the more general issue of the question of costs.

 

9 Other errors had been listed in the appellants’ grounds of appeal as “errors of fact”. I must emphasise that putting a list of “errors of fact” in a statement of grounds of appeal is not helpful to the appeal process and can be counter-productive. If even the appellants, acting through expert advisers as here, cannot identify an arguable error of law in the matters said to be errors of fact, it is unlikely that the Upper Tribunal is to be persuaded that permission should be granted on those points.  I have considered them and, having heard Mr Pascal, can identify no material error of law behind them.

 

10 Mr Pascal’s main concern was to persuade me that the tribunal had erred in its decision about the need for a waking day curriculum. He submitted that the tribunal had not adequately explained its decision on this point. Mr Lewis, the advocate for the parents before the tribunal, had relied on evidence from two witnesses in support of this point. Mr Pascal relied on R(L)  v London Borough of Waltham Forest  [2004] ELR 161 to contend that the tribunal should have explained why it either chose to ignore or alternatively rejected the evidence for the parents on this point. In failing to do this, it had erred in law.

 

11 While I entirely endorse the comments of Beatson LJ (as he now is) in that case, it is always appropriate to bear in mind about such comments the caution expressed by Waller LJ with regard to those comments in H v East Sussex County Council [2009] EWCA Civ 249, at paragraph [15] that:

 

“The trouble with such a summary is that it risks elevating into general principles what are statements by judges made by reference to the facts and   circumstances of particular cases taken out of context.”

 

Waller LJ then repeated the oft-cited comments of Baroness Hale in Secretary of State for the Home Department v AH [2008] 1 AC 678 about the respect to be paid to the decisions of expert tribunals when dealing with matters within their expertise.

 

12 Mr Stockwell did not seek fully to reply to that and the other points raised as additional grounds of appeal, and reserved the Council’s position. I consider that he was fully entitled to do that, and I indicated that I would if appropriate invite a full response after the hearing. He did however, hand in copies of decisions of previous tribunals on the issues that continue to be joined between the parents and the Council. I note these decisions in my full decision. I accept those documents as relevant to this application but, of course, in no way decisive of it. It is often helpful to have the full tribunal history of ongoing issues such as those now before me. However, the decision of one First-tier Tribunal in no way binds a later First-tier Tribunal nor does it exempt that later tribunal from considering all matters before it. But, as here, it may be relevant to note the considerable consideration given to clarifying and deciding a child’s educational needs and provision at earlier stages of her or his education as the background to current disagreements. 

 

13 Having considered Mr Pascal’s further submissions together with the full decision of this tribunal and the evidence before it, in particular the evidence to which reference was made on the issue of a waking day curriculum, I see no reason to call upon Mr Stockwell or the Council to respond further. I am satisfied that it is not arguable that the Tribunal erred materially in law on these points.

 

14 It is, first, important to take note of the extensive hearing given by the Tribunal to issues which were clearly placed before it. It is plain that the tribunal took care to ensure that it had identified issues on which there was genuinely a dispute and to secure agreement where that could be secured. There is no question that the Tribunal failed to give full consideration to the issue of the waking day curriculum. And it did so against a background of full agreement about B’s educational needs in Part 2 of the statement and agreement about most of the other issues in Part 3.

 

15 The Tribunal dealt with this issue starting at paragraphs [15] to [21], and the analysis continues to paragraph [32] somewhat intertwined with the question whether the school named by the Council, GLS, could make satisfactory provision for B and other issues. That discussion included repeated reference to the evidence, including the written and oral evidence of the parents and the evidence of the two witnesses called by each of the parties. It also makes reference to other written evidence.  I am far from persuaded that the failure of the tribunal, if that is what it was, to detail and mention specifically all the other evidence in this case represents an inadequacy. This is not least because, as the tribunal observes, some of the evidence had previously been before previous tribunals and did not as such advance the current case. That is relevant because, as the Tribunal was aware, this was the third time on which the parents had asked for a specific school to be named in place of another specific school. And the Tribunal was entitled to note, as it did of some evidence, that evidence “dates back” to earlier proceedings.

 

16 In that context, I do not accept that the appellants, or any third party, cannot understand why this tribunal reached the decision it did on the issue of waking day curriculum.  The core of its decision is based firmly within the legislation and the relevant areas of the English code, as the tribunal states in paragraph [28]. It makes it plain that it is not persuaded that B has complex medical needs and that B’s educational needs, which at that stage were fully agreed by the parties, can be provided in local day provision.

 

17 In this case B was in care and – unusually – the care was in part being provided by the same institution as the parents sought to name in Part 4. Perhaps because of those unusual circumstances there is an intertwining in the Tribunal’s decision of matters that are plainly educational provision, other matters that may or may not be educational provision, and others again that are not educational provision. I consider that in my decision in connection with costs, because it is part of the context of determining relevant public expenditure and applying section 9. Save for that aspect of these grounds of appeal, I see no additionally arguable ground of appeal in the appellants’ application.

 

18 Nor is there any arguable error in the procedure of the Tribunal hearing this appeal. Indeed, if I may say so, the tribunal’s conduct of this appeal, involving as it did two sessions and what it termed mediation, was entirely fair and effective.

 

19 I therefore confirm that I grant permission to appeal in respect of the question of the application of section 9 of the Education Act 1996 to this case, and the issues inherent in a full discussion of that question, only.

 

19 As stated above, this is to be appended to, and issued with, my full expedited decision on the appeal.  That being so, I give no specific case directions with this decision.