England and Wales High Court (Queen's Bench Division) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION

		Royal Courts of Justice Strand, London, WC2A 2LL
		08/09/2009

Mr Justice Plender:

The Facts

1. This appeal raises a question as to the correct construction of section 9 of the Education Act 1996. This provides that:

"In exercising and 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."

2. The appellant ("the Council") challenges the decision of the First Respondent ("SENDIST") dated 19^th September 2008 which specified

"the continuation of S's placement at the PACE Centre for a time limited period of two years until transfer to secondary education, subject to Mr and Mrs S undertaking the cost of transport".

The Council submits that the appropriate school to be specified in S's statement is a publicly-maintained school called the Arbour Vale School.

3. S is a girl born on 15^th March 1999 with cerebral palsy. As a result of microcephaly she has triplegia and global developmental delay impacting her physical communication, visual, cognitive and playing skills. The Council has maintained her Statement of Educational Needs since July 2002.
4. The second and third Respondents ("Mr and Mrs S") are her parents. They consider that S's welfare can best be advanced by her placement at the PACE Centre, an independent non-maintained school in Aylesbury, Buckinghamshire which provides specialised training by conductive education for infants and children with motor disorders such as cerebral palsy, by means of "conductive education". The PACE Centre provides education incorporating emotional, intellectual and academic learning by the use of sensory techniques as well as pedagogy. For instance, the day begins for S with a sage bath and continues with her treatment by a limited number of carers or teachers who assume responsibility for her upbringing. S has been attending the PACE Centre since April 2001, when she was not yet two. Her parents state that she has made the most exceptional progress at the PACE school and they fear that her removal to another school would be very much contrary to her interests.
5. In accordance with section 9 of the Education Act 1996 SENDIST had to consider whether S's continued education at the PACE Centre was compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure. This entailed comparing the expenditure entailed by her continued education at the PACE Centre with the expenditure that would be entailed by her education at the Arbour Vale School. By its decision of 7^th November 2007 SENDIST reasoned that the total maximum annual marginal cost of continuing with S's education at the PACE Centre would be £19,360. But since Mr and Mrs S want S to continue at the PACE Centre for as long as possible, and the PACE Centre were prepared to care for her until the age of 13, that would involve 8 years' treatment there, during which period costs would rise. It reasoned "Therefore we have concluded that Arbour Vale School should be named in Part 4" of S's statement.
6. Mr and Mrs S applied to SENDIST for review of its decision on the ground, among others, that:

"The Panel made a mistake in the tribunal procedure in that it did not take into account any willingness on behalf of the PACE Centre Trust to contribute towards the costs involved for a placement either in the form of a charitable bursary or a reduction of the placement rate. The Director of the school was present at the tribunal but was not asked the question. Had they been asked we would advise that the Trust would be contributing an amount of £9000 towards the placement cost in the form of a reduction in the placement rate to Slough LEA in this specific circumstance".

7. The Council stated that evidence about any willingness on behalf of the PACE Centre Trust to contribute towards the costs involved was not sufficient to enable it to agree to make joint funding arrangements with S's parents. The Council continued to believe that Arbour Vale School could meet S's needs.
8. These were the circumstances in which SENDIST agreed to review its decision of 7^th November 2007. The review was confined to the issue of placement costs and funding arrangements. The Council reasoned that there was an existing pre-funded place at Arbour Vale School for which the only additional cost to the local education authority, entailed by S's attendance, would be £4161 for additional support, excluding therapy costs at £35 per hour.
9. Mr and Mrs S, on the other hand, calculated that the additional cost to the Council would be £15,219: the largest single element in the difference between their costing and that of the Council was the sum of £9161 which would be needed to cover 50% of the full-time costs of a specialist teaching assistant.
10. SENDIST proceeded on the basis that the total cost of a placement at Arbour Vale School was £32,490 "based on the cost of therapies, compared to the normal total cost of £36,000 at the PACE Centre." On this basis it considered that "the difference in cost between the two placements is not overly significant for the next 2 years in any event". However the PACE Centre had offered to place S for only £10,000 per annum and taking account of the upheaval that a move to the Arbour School would present to S, this represented good value for money. Accordingly SENDIST amended its decision.
11. Against that amended decision the Council now appeals.

The Fees Payable in Respect of S's Education

12. Section 348(2) of the Education Act 1996 which provides that the conditions prescribed in subsection (1) are met (as is the case with S)

"the local education authority shall pay the whole of the fees payable in respect of the education of the child".

13. Mr Hyams, for the Council, submitted that in the present case the fees payable in respect of S's education amounted to £36,000. His submission reflected the position long maintained by the Council, in the person of its Head of Services for Children with Learning Difficulties and Disabilities, Jackie Wright.
14. By letter dated 5 August 2008 Ms Wright maintained that what was on offer from The PACE Centre was "a joint funding arrangement between the LA and the parents and this [ie £10,000] cannot be considered as the full cost of the placement for S". She wrote "the LA will not use its discretionary powers to make a joint funding arrangement for S" and that "joint funding arrangements fall outside the remit of the SEN and Disability Tribunal". She stated "While Mr and Mrs S's independent supporter has indicated that the total cost of the placement is £10,000 per annum this is incorrect.
15. By an exchange of letters dated 3 October 2008 Ms Wright had asked the PACE Centre

"What sums have already been paid to date to The PACE Centre towards S's placement at the Centre via fundraising efforts by the parents? Are any other fundraising monies on deposit ready to be paid to The PACE Centre at some future date over the next two years?"

The PACE Centre declined to disclose "confidential information regarding fundraising" but confirmed that

"a substantial amount has been raised and this, along with the limited time frame, is the reason the Trust made the decision to support S".

16. Ms Wright responded, on 7 October 2008, stating

"You have not answered my questions; you have merely restated what we already know .... On the face of it, the arrangement for funding S's placement is looking increasingly like a joint funding arrangement. We must put you on notice that the correspondence between us is likely to be placed before the court if we were to decide to appeal".

17. In evidence to SENDIST Ms Wright stated as follows:

"Effectively what happened at the review hearing was that the PACE Centre agreed to accept £10,000 a year from Slough on a part-funding basis. The remainder of the £36,000 annual fee would, if that were lawful, be paid out of the charitable donations collected following a very successful public charitable appeal by the parents through the local press and other fund-raising events".

18. I accept that if SENDIST had accepted Mrs Wright's evidence it would have had to conclude that it was confronted with a part-funding arrangement, whereby the total cost of S's education remained at £36,000. Under the agreement £26,000 was to be paid by charitable donations made following an appeal by the parents through the local press and other fund-raising events. The fact that SENDIST allowed the appeal suggests that it did not accept the characterisation of the arrangement given in Ms Wright's statement.
19. Although Ms Wright characterises the offer made by The PACE Centre as an offer for "part funding", the PACE Centre, in the correspondence shown to the Court, never uses that term.
20. The position of The PACE Centre is conveniently explained in a letter signed by its Director, Heather Last, and addressed "To whom it may concern". This letter, although undated, was placed before SENDIST. It reads as follows:

"Further to negotiations with Mr and Mrs S (S's parents) The PACE Centre has agreed to an EXCEPTIONAL funding arrangement for a limited two year period.

In the light of the famil[y']s commitment to fundraising and their success to date we have considered a reduction in the amount we would charge Slough Borough Council for the next two years (2008-9, 2009-2010). This would allow S to complete her primary education at The PACE Centre and have the intensive sensory and motor education she has been accessing since her early years. It would allow time to transfer S and her family for transfer to Secondary and therefore establish programmes which would enable continuity and consistency of learning.

This is a one-off arrangement between The PACE Centre and the Family in recognition of their commitment to fundraising for The PACE Centre over a number of years and their current success in raising a substantial amount towards S's fees. Not all families have this capability and I must therefore emphasise that this is an exceptional offer to Slough Borough Council. We can therefore offer the placement from September 2008 - August 2010 at a cost of £10,000 per annum. We hope this will enable S's Parents to continue educating S at the school of their choice until the end of her primary education".

21. It appears from this letter that the trustees of The PACE Centre decided to offer to continue S's education, for two years, for an annual fee of only £10,000, in recognition of the past services of S's parents to the trust. That is why the letter speaks of "he famil[y']s commitment to fundraising and their success to date" and "their commitment to fundraising for The PACE Centre over a number of years". No particular value was placed on those past services, nor was the value of those services set against S's fees. In relation to these past services there was no joint funding arrangement. This is consistent with Mr S's statement [paragraph 6 above] that the trust was to contribute £9000 towards S's placement costs.
22. I accept that questions are provoked by the reference to Mr and Mrs S's "current success in raising a substantial amount towards S's fees". If this amount were to constitute part payment of S's fees for the years 2008-9 and 2009-10, it would disclose a part-funding arrangement; and the amount so contributed ought properly to have been added to the fee of £10,000, in assessing the whole of the fees to be charged for S's education. Unless it had been satisfied that no part of the funds raised by Mr and Mrs S were to be applied in reduction of the net fee to be paid for S, SENDIST could not have concluded that the fee to be paid was the sum of £10,000.
23. Ms Wright is however correct in stating, in her letter to the PACE Centre dated 3^rd October 2008, that joint funding arrangements between parents and local authorities are prohibited by the terms of the Education Act 1996. Subsection 348(2) of that Act provides that where that 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".

Section 9 of the same Act is not to be construed as requiring the education in accordance with the wishes of their parents when the latter are able to make such a contribution to the fees as to avoid unreasonable public expenditure. The "general principle" set out in Section 9 does not detract from the specific rule laid down in section 348(2).

24. Even if one discounts Ms Wright's expressed fear that private providers of educational and health care for children will "trim" their statements of the fees until they are "the same or less than that which the local authority would otherwise have to pay", there would be substantial objections to a fee-sharing arrangement concluded between parents and local authorities. It that were permitted, parents of children with disabilities would be placed under pressure to pay as much of the fees of a maintained school that they could afford - or even more than they could afford - in order to reduce the charge to the local authority below the level of comparable .education at an independent non-maintained school. Had I been persuaded that SENDIST erred in failing to detect a joint funding arrangement in the present case and that this error might have made a difference to the outcome of the case, I would have allowed this appeal, notwithstanding the powerful evidence showing that a change in schooling for S at the present stage would be contrary to her interests.
25. I doubt, however, that any such error on the part of SENDIST could have affected the outcome of the appeal at all. At paragraph N of its decision SENDIST concluded that the difference between the cost of educating S in the PACE Centre and educating her at Arbour Vale School, over a period of two years, was not significant. It stated:

"If the total cost of a placement at Arbour Vale School is calculated at £32,490 based on the cost of therapies, the PMLD4a banding and the 0.5[%] of a specialist teaching assistant, compared to the normal total cost of £36,000, at the PACE Centre, the difference in cost between the two placements is not overly significant for the next 2 years in any event".

So even if the "substantial amount towards S's fees" that had been raised by Mr and Mrs S were as great as £3510, this would have been regarded by SENDIST as not overly significant for the next two years. Although the question I would have to ask is whether any error by SENDIST could have affected its decision at the time when that decision was made, I also draw attention to the fact that that time has not stood still. If a third hearing by SENDIST is to take place, it is likely to do so at a stage when S has only one year of her primary education left.

The Figure of £32,490

26. Neither Mr Hyams nor Mr Friel could explain how it was that SENDIST calculated that the total cost of a placement at Arbour Vale School was £32,490. It is possible that SENDIST reached this sum by adding the costs of PLMD4 a banding (£4161); Y specialist teaching assistant; (£9660); occupational therapy; (£1365) speech therapy; (£1365) physiotherapy (£1365) and the annual cost of Arbour Vale School divided by the number of pupils. If that is right it would justify comparison with the PACE Centre's figure of £36,000 although it would be inapt as a means of calculating the marginal cost to the Appellant of placing S at the PACE Centre, because the annual cost of Arbour Vale School would have to be met with or without S's placement there.
27. I was urged by Mr Hyams to conclude that the failure to explain the figure, alternatively the methodology used in the calculation of the figure, disclosed an error warranting the return of the case to SENDIST for proper determination. I do not think it right to do so. The standard to be expected of tribunals when giving decisions was defined by Sir Thomas Bingham MR (as he then was) in Meek v City of Birmingham Council, [1987] IRLR 250. He said that such a decision:

"must contain an outline of the story which has given rise to the complaint and a summary of the tribunal' basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those bare facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable [the appellate body] or, on further appeal, the court, to see whether any question of law arises".

Although that was a decision made in relation to industrial tribunals it has been applied to Special Educational Needs and Disability Tribunals on several occasions and it sets out a standard which was met in this case. It is true that we are not told how SENDIST arrived at the figure of £32,490. We are however told that SENDIST considered that a difference in cost of £3510 was "not overly significant" in the context of the two years' education. That is what matters.

Appeal dismissed. Respondent to have order for costs, to be subject to detailed assessment if not agreed.