QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
|London Borough of Lewisham
Special Educational Needs And Disability Tribunal
Mark Roscoe (instructed by Lewisham Legal Services) for the 1st Respondent
Hearing dates : 5th and 6th September 2007
Crown Copyright ©
Andrew Nicol QC :
'(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 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.'
Does s.9 of the Education Act 1996 apply where the choice is between two maintained schools
'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 authority consider the expressed preference for an independent school in such circumstances without any statutory underpinning, or does it consider it in the light of s.9? I see nothing in Part IV (which includes Sch 27) or in s.9 to suggest that the general principle that pupils are to be educated in accordance with the wishes of their parents is intended to be disregarded in relation to children with special educational needs. It is, as has been seen, superseded by a potentially more onerous duty in special educational needs cases where the expressed preference is for a school in the state sector; but this makes it more likely, not less, that where the parental preference is for a school in the independent sector, the background obligation spelt out in s.9 is intended to remain in play.'
'In cases where the choice is between two maintained schools, by Schedule 27, paragraph 3, the Act substitutes a test of suitability to the particular child, efficiency in education (for example because of possible disruption) and efficient use of resources.' [my emphasis]
Is 'public expenditure' in s.9 confined to the expenditure of the LEA?
'It seems to me that the phrase 'unreasonable public expenditure' in the context of s.76 of the 1944 Act must be a reference to public expenditure by educational authorities, and does not include public expenditure by other authorities such as health authorities. So far as I am aware, LEAs have no right of access to the detail of costs incurred by, for example, health authorities. If Parliament had intended LEAs to take into account the costs borne by health authorities, I would have expected this to be spelt out clearly in the legislation.'
' On the general interpretation of the words of s.9, I prefer Mr Oldham [counsel for the local education authority]'s submissions. I agree with him that what s.9 is dealing with is the expenditure, not of a public authority as a whole, but with the expenditure of the Local Education Authority. Support for this view is provided by the terms of s.322 of the Act, which deals with the duty of a local authority to help the local education authority. Why should this provision be considered necessary if the phrase 'unnecessary public expenditure' in s.9 is as wide and comprehensive as
 Mr Lewis suggests? It seems to me that s.322 makes clear that there is a distinction to be drawn under the Local Education Authority and other authorities, and that social services owe no obligation to the local education authority, even though they may be under the same roof and administered by the same local authority.
 It is clear from a number of references in cases and in the Code of Practice, which Mr Oldham cited to me, that the local education authority is responsible for ensuring that efficient use is made of its own resources without reference to those or other local authority agencies. This is also apparent from Education (Special Education Needs) England (Consolidation) Regulations 2001, which in Schedule 2 requires a special education needs provision to be specified separately from non-educational needs and provision. Neither the health authority nor social service department are obliged to meet local education authority requirements. In any event, a body such as SENT would have no means of knowing what provision can be made for other agencies or what the amount of such provision would be.'
'Mr Friel [counsel for the applicant] says that s.322 is only concerned with requests made by a local education authority to a different council. I do not agree. On the face of it, of course, it would be quixotic for a body to make a request of itself. But although the local education authority is by s.12 defined as being the relevant county council or district council, it has its own identity, and defined functions, laid down by statute. Qua local education authority, the first respondent here could not, as it seems to me, invoke the resources of its social services department without statutory authority to do so, because its defined responsibilities do not include such a department's functions. S.322 provides the basis upon which (for example) social services assistance may be sought by the education authority, and imposes a qualified duty on the local authority to comply with a request for such assistance.'
' .Because of his condition, C is manifestly a child with multiple needs who poses enormous challenges for those who have to attempt to care for him and provide him with education. Such a child's educational needs simply cannot be viewed in isolation; nor can his section 17 [a reference to c.17 of the Children Act 1989] needs; nor, for that matter, can his need for services provided by the Health Authority and CAMHS. A holistic approach is necessary, and with inter-agency co-operation, essential, particularly since two of the bodies with statutory responsibilities for (the LEA and SSD) are part of the same local authority.
 At the same time, of course, the Tribunal is a creature of statute, and its powers are limited to the areas of responsibility given to it by the Education Act 1996 and the consequential regulations. Judge LJ has set out the relevant provisions in paragraphs 27-31 of his judgment and I will not repeat them. In a case, such as the present, the Tribunal, in my judgment, had to tread a delicate line between properly informing itself of the 'full picture' relating to C, and limiting its decision to a careful assessment of C's special educational needs within that full picture .'
Would the Tribunal inevitably have chosen to specify the P School even if it had correctly taken into account the savings on respite care costs?
'The evidence that [O] requires a residential placement is unconvincing Whilst we accept that young people with a diagnosis of autism do need a consistent approach and help to generalise skills a residential placement is not the only setting in which this can take place. We have heard evidence from [M] that [P] School offers some extended day provision and that there are partnerships between school and parents in individual cases to encourage the generalisation of skills. There may perhaps be scope for developing these activities further. There is no evidence that [O]'s behaviour causes problems at school. As regards home, we accept [the Appellant]'s evidence, but note, with regret, that there is not regular contact between home and school. We also note that [the Appellant] has not yet taken advantage of the respite care opportunities available to her. We hope that there can be liaison and information sharing between [P] School, [the Appellant] and social services, so that [O]'s education and social care can be delivered seamlessly and consistently. We find that [O] does not require a residential placement for educational reasons and there is some evidence that a change of school could destabilise him.'