QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
London WC2A 2LL
B e f o r e :
|X CITY COUNCIL||Claimant|
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The Respondents were not represented
Mr D Wolfe (instructed by the Treasury Solicitor) appeared on behalf of the Interested Party, GB
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MR JUSTICE UNDERHILL:
"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."
"In our estimation the cost of the additional teaching support which G will require if she remains at P will be of the order of £13,000. Thus the cost to the LEA of her placement there would, at least in the short-term, exceed the fees at H School."
In other words, therefore, there was no unreasonable public expenditure because the expenditure involved in the P option would be no less than that involved by sending G to H School.
"1 The Tribunal erred in including the cost of additional teaching support at P school as this sum was not an additional cost to the LEA.
2 The Tribunal erred in making no finding of fact as to whether P school could in fact provide the additional teaching support ordered from within its own resources and delegated budget and/or failed to give any reasons regarding the same."
Those grounds were not accompanied by any statement of facts, or anything in the nature of a pleading elaborating the points being made. The only full statement of the Council's case appears in Mr Auburn's clear and helpful skeleton argument dated 21 August. This was responded to by Mr Wolfe's equally helpful skeleton argument dated 7 September 2007. (I do not refer to the absence of any pleadings, or other material supporting the grounds of appeal, in order to criticise either Mr Auburn or those instructing him. So far as I can see, the rules do not provide for any such pleadings, and in any event this appeal has had to come on at comparatively short notice because of the urgency of the case. It is, however, material to an issue to which I will have to turn in due course.)
"An LEA has discretion whether to retain funding to meet SEN in the central budget, in whole or in part (2006 Regulations, Schedule 2, paras 4-12). If it does not choose to retain funds, that funding will form part of the Individual Schools Budget. The Individual Schools Budget is then apportioned to individual schools in accordance with a formula devised by the LEA in accordance with Part 3 and Schedule 4 of the 2006 Regulations. The incidence of SEN is a permissible factor to be included in the formula. The governors of those schools, or the head-teacher if the governors have delegated their power, are then entitled to manage that school's budget share (s. 49(7) SSFA). Individual schools are to meet the demands of pupils from the share of resources allocated to them. The LEA remains under a duty to provide for a child's SEN, but where the school has a delegated budget the school is usually expected to meet the cost of such SEN provision from that budget."
Mr Wolfe in his skeleton argument acknowledged that that summary was in itself substantially correct, though he said that it failed to mention the effect of s.49(5) of the 1998 Act: as to this, see para. 13 below.
"The question is what additional burden [providing for the child's needs] it will place on the LEA's annual budget".
section 49 (5) of the 1998 Act. Section 49 is part of the group of sections under Chapter 4 of Part II which establish the machinery for the financing of maintained schools. Section 49(1) provides that every maintained school shall have a delegated budget. Subsection (5) reads as follows:
"Any amount made available by a local education authority to the governing body of a maintained school (whether under section 50 or otherwise) --
(a) shall remain the property of the authority until spent by the governing body or the head teacher; and
(b) when spent by the governing body or the head teacher, shall be taken to be spent by them or him as the authority's agent."
Mr Wolfe submits that those provisions show that notwithstanding the power given to the school to spend the money under the delegated arrangements, the expenditure remains ultimately that of the Council. In my view that submission is well-founded.
"Age weighted pupil unit (AWPU) Year 5 £1965
Teaching Assistant £7.50 per hour x 16 hours per week x 38 weeks £4560
Higher Level Teaching Assistant £9.50 per hour x 30 mins per week x 38 weeks
DLT Teaching Assistant 1 hour per week at £8.50p x 28 sessions based on sessions from September 06 to include summer term 07 £238
DLT Tutor (Pauline Cronin) £64 per session x 4 sessions £256
Speech and Language Therapist £23 per hour every two weeks £437
There then follows a passage of text making the points which I have already considered as to the effect of the fact that the Council had delegated SEN funding to individual schools. The section ends with the following sentence, in bold:
"It should be noted that the school costs for G's support above will be met from the school's existing delegated budget and will not require additional expenditure by the Local Authority."
"• 2 hours' support from a specialist teacher,
with one hour of direct 1:1 teaching and one hour for differentiation, planning, liaison with other staff and reviewing;
• Support from the DLT's specialist TA in all
numeracy and literacy lessons (14 hours per week) plus a further 8 hours of support from the same TA in literacy-based subjects."
(DLT is a reference to the local authority's Dyslexia Liaison Team. TA is short for teaching assistant.) It seems to me that it can reasonably be inferred that the approximate doubling of the Council's figure in order to produce the Tribunal's estimate results from the Tribunal using the Council's rates but scaling up the totals to arrive at an approximate figure for the cost of the much more extensive provision that it held was required. While Mr Auburn understandably relied on the absence of any detailed reasons, he did not seek to submit that the figure of £13,000 was otherwise absurd or perverse. Even if it could be shown to be somewhat excessive, it would not take a great deal of further provision to bring the Council's figure of £7,636 within striking distance, so to speak, of the H School fees.
"where the court makes no direction, 21 days after the date of the decision"
that is, 21 days from today and then provides for it to be filed within 7 days."
In the normal course of events the skeleton argument would then have to follow within 14 days from that.