Case Nos: C1/2009/2071 & C1/2009/2071(A)
Neutral Citation Number: [2010] EWCA Civ 668
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT
MR JUSTICE PLENDER
[2009] EWHC 1091 (QB)
Royal Courts of Justice
Strand, London, WC2A 2LL

Date: 15/06/2010
Before :

LORD JUSTICE SEDLEY
LORD JUSTICE RIMER
and
SIR PAUL KENNEDY
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Between :

	SLOUGH BOROUGH COUNCIL	Appellant	
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	SPECIAL EDUCATIONAL NEEDS AND DISABILITY TRIBUNAL & OTHERS	Respondent	
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(Transcript of the Handed Down Judgment of
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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
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Judgment
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 therapies, the scheme of delegated funding and the additional supplements committed by the LEA to this particular child in reality bring the full cost of a placement at this school beyond the £10,000 now being charged by the PACE Centre.”

12.	This appears to me to be a factual finding, made by a specialist tribunal with  knowledge of the field, that the apportioned costs of providing for this child in a maintained school, whatever their precise amount, would inevitably exceed the £10,000 for which the PACE Centre was prepared to accept her. In my judgment this is a perfectly tenable finding unless Mr Hyams is correct in his contention that admission to a maintained school with space for the child is cost-free apart from any special requirements that the child brings with her.
13.	The contention is not in my judgment sustainable. Every element of a maintained school carries a cost in public funds. The recurrent exercise for Tribunals is to calculate what it is, because it is ordinarily only with such a calculation that the protection of public money to which the condition in s.9 is directed becomes possible. If it were not so, a like-for-like comparison between public and private provision could never be made. But here, because of the unusual facts, it was legitimate for the Tribunal to take a short cut and to find, as it did, that whatever the notional per capita cost of the maintained school was, it must exceed the £10,000 with which it fell to be compared.

The cost of a placement at the PACE Centre
14.	The appeal therefore turns on the true cost, for statutory purposes, of placing the Suris’ daughter at the PACE Centre. In the ordinary way, as I have said, the fees would have been £36,000 a year and the s.9 comparison correspondingly problematical. But, for reasons to which I will come in a moment, the Centre had voluntarily reduced the fees for this particular child to £10,000 for each of the two remaining years of her primary education.
15.	First, however, it is necessary to consider s.348 of the 1996 Act. The section applies where a non-maintained school is named in or required by a child’s statutory statement. Subsection (2) then provides:
 (2) Where this section applies, the local authority shall pay the whole of the fees payable in respect of the education provided for the child at the school, and if –
(a) board and lodging are provided for him at the school, and
(b) the authority are satisfied that the necessary special educational provision cannot be provided for him at the school unless the board and lodgings are also provided, the authority shall pay the whole of the fees payable in respect of the board and lodging.
16.	Mr Hyams’ case, as opened, was that this provision required the authority to pay the full £36,000 even if the school was only seeking payment of £10,000. Mr Friel’s case was that “the fees payable … for the child at the school” could only sensibly mean the fees the school was asking. Neither interpretation is without its problems.
17.	The difficulty of Mr Hyams’ interpretation is self-evident: it would require a public authority to pay the full amount of a school’s fees even if they have been reduced for the child in question. As Mr Hyams eventually accepted, that makes no sense. Among other things it would shut out bursaries offered by a charity or from the school’s own funds for the benefit of children of, say, service personnel which had no manipulative purpose or character but which rendered the fees for a particular child more economical than those of a comparable school.
18.	The converse, however – that parents can secure the school of their choice for a child with special needs by paying enough of the fees to make the alternative uneconomical – may well subvert the purpose of s.348. It would permit parents with means, by striking a private bargain, to compel a public authority to part-fund schooling which the parents would otherwise have had to fund in full. The counter-argument is that, while s.348(2) manifestly forbids an education authority to require parents to pay part of the fees at a non-maintained school, it does not prevent parents from voluntarily doing so, even if their purpose is to bring an otherwise uneconomic placement within the s.9 objective; nor therefore should it prevent a local education authority from advising parents that this can be done.
19.	We are indebted to both counsel for research which they have undertaken at the court’s request to trace the genesis of s.348 in case this casts light on its intent. In brief, s.348 of the 1996 Act re-enacted s.190 of the Education Act 1993, which was itself a partial re-enactment of s.6 of the Education (Miscellaneous Provisions) Act 1953. This (like s.348 of the 1996 Act) provided that the local education authority “shall … pay the whole of the fees payable in respect of” special educational provision. The innovation was that it turned a power created by s.81 of the Education Act 1944 into a duty.
20.	Both the formulation of the successive provisions and the ministerial explanations in both Houses which Mr Hyams has extracted for us make it evident that the present question had – perfectly understandably – not occurred to the drafter or the movers of the legislation. The same is apparent from the notes on clauses which my judicial assistant has traced in the National Archives. The concern was to ensure that where special education had to be outsourced (though the word had probably not yet been invented), the local education authority must bear the full cost of it and was not entitled to look to the child’s parents for a contribution. The possibility that the full cost might be driven down by the parents themselves in order to render economical a choice of school which would otherwise be excluded by the condition in s.9 of the 1996 Act or its predecessor, s.76 of the 1944 Act, was not contemplated either then or, so far as we know, until this case.
21.	The implications of the question, starting but by no means ending with the policy of the successive statutes themselves, are considerable. But it is a question which this court does not have to decide, because the facts of the present case, so far as they have been ascertained, do not raise it. They are set out in the opening paragraph of the Tribunal’s decision:
In a letter from Ms Last, the Pace Centre confirmed that it had agreed to a one off, exceptional funding arrangement for a limited two-year period.  It stated that in view of the successful fundraising undertaken by Mr and Mrs Suri, the Centre had reduced the fee for Simran’s placement for the academic years 2008 to 2009 and 2009 to 2010.  The total costs for each of these years would be £10,000, to include all therapies and required teaching and additional classroom support.  Mr and Mrs Suri confirmed that they would undertake the transport costs for the next two years.

22.	Although Mr and Mr Suri both gave evidence to the Tribunal on the review hearing, as did Ms Last, the director of the PACE centre, none of them was apparently asked, and no document showed, what form the fundraising had taken. If it had emerged that the family had simply made a payment of the order of £25,000 or £30,000 to the school and the school, in response, had offered to take their daughter at a reduced fee of £10,000, the problematical issue I have described would have arisen for decision. If, however, the school was doing no more than making a reciprocal gesture in return for fundraising work done on its behalf, it does not necessarily follow that the fundraising should be regarded as a disguised part-payment of fees designed to compel the local education authority to expend public funds on a school of the parents’ choice which would otherwise have fallen foul of s.9.
23.	If the child were not now the subject of a new statement and about to move to a new school, it might well have been appropriate to remit the case for a fuller investigation of the facts than was undertaken here. In future cases of this kind one would expect such an investigation. If it results in a finding of overt or covert voluntary parental funding (and I do not mean this to be an exhaustive description of the problematical class of contribution), the Tribunal, and if need be an appellate court, will have the necessary foundation on which to address and resolve the legal issue. The argument may need to extend to some of the related provisions to which Mr Friel’s research note has drawn our attention.
24.	The evidence and the findings as they now stand, however, are insufficient to raise the issue. They establish only that, in recognition of a subvention to the school which the Suris have helped to collect, their daughter’s fees were to be £10,000 a year for her remaining two primary years. This was therefore the amount to be compared, initially by the authority and then by the Tribunal, with the cost of providing a place for her at Arbour Vale. For reasons I have given, the Tribunal were entitled to conclude that, whatever the computed cost of the latter was, it was bound to exceed the special fees asked by the PACE Centre.

Conclusion
25.	I would therefore dismiss this appeal. It follows that the review decision of the Tribunal stands, and with it the obligation of the local education authority to defray the fees of £10,000 a year for 2008-2010 charged by the PACE Centre for the Suris’ daughter.

Lord Justice Rimer:
26.	I agree.

Sir Paul Kennedy:
27.	I also agree.