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MH [2009] UKUT 178 (AAC) (16 September 2009)
Special educational needs
Other

IN THE UPPER TRIBUNAL Case No. S/778/2009

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Attendances:

Appellant: Mr and Mrs H in person

Respondent: Mr Jonathan Auburn of Counsel

Decision:

The decision of the First-Tier Tribunal sitting at Chesterfield on 26 November 2008 under Reference 08-01992 and issued on 11 December 2008 involved the making of an error of law (for the reasons advanced by the respondent rather than those advanced by the appellant) and is set aside. I substitute an order that: "Part IV should be amended to read "Both Ash Lea and Foxwood maintained special schools are appropriate for L's needs. L's parents have expressed a preference for L to attend Foxwood, to which the local authority gives effect. L is to attend Foxwood from September 2008. Foxwood is further from L's home than Ash Lea and it has been determined by the respondent, applying Part IX of the Education Act 1996, that L's parents are responsible for her transport to and from Foxwood."

REASONS FOR DECISION

This appeal examines the interaction between the special educational needs provisions contained in Part IV of the Education Act 1996 ("the 1996 Act") and those relating to school transport in Part IX, and the extent of the First-tier Tribunal's jurisdiction.

Mr and Mrs H had been in discussion with the respondent local authority concerning the special educational needs of their daughter L, aged six at the time of the hearing before the First-tier Tribunal. The respondent considered that Ash Lea, a maintained special school 5.5 miles from the family home, would be appropriate for L. L's parents' preference was for Foxwood, likewise a maintained special school, which was 7.5 miles from the family home. The respondent was prepared to accommodate that preference and included a provision in L's statement of special educational needs in terms that:

"The Local Authority believes that [L's] needs could be met at her local maintained school, Ash Lea School, therefore [L] will attend the Local Authority maintained special school, Foxwood, from September 2008 on the basis of parental preference. As such, L's parents will be responsible for transporting her to and from this placement."

Provisions of this type are not uncommon – see for example Re C (a minor) [1994] ELR 273 at 274 (CA).

L is one of three children and her parents were not confident of their ability to transport her to and from Foxwood. It is not necessary to set out the detail of those difficulties, but the consequence was e-mail traffic between the respondent's special educational needs team and the parents, in which the relative costs of transport to Foxwood and to Ash Lea were examined. The respondent's transport officer was brought in and subsequently the respondent declined to provide transport to Foxwood.

L's parents (in the name of Mrs H) appealed to SENDIST. Because of the reforms effected by the Tribunals, Courts and Enforcement Act 2007 the appeal in due course came before the Health, Education and Social Care Chamber of the First-tier Tribunal, but nothing turns on this change for present purposes. References in these Reasons to "the tribunal" are to SENDIST and/or the First-tier Tribunal, as the context requires. In the parents' appeal they sought to challenge the appropriateness of Ash Lea. The tribunal, having examined the provision at both schools, concluded that:

"It follows from the above that the Tribunal is not persuaded that Ash Lea could not reasonably provide the level of provision required to meet [L's] needs. The Tribunal's conclusion, therefore, is that both schools could clearly meet those needs and the issue therefore turns on parental preference."

The tribunal went on to examine Schedule 27 and section 9 of the 1996 Act (to which I return below) before conducting an assessment of the additional costs that would be involved in transporting L to Foxwood. It concluded that funding transport for L to Foxwood would not be an efficient use of the local authority's resources and would amount to "unreasonable public expenditure". It concluded that:

"This is purely a matter of parental preference and whilst the Tribunal acknowledges and respects Mr and Mrs [H's] reasoning in reaching that decision, it seems to the Tribunal that it cannot be justified in terms of either Schedule 27 or section 9 unless they meet the full additional costs involved."

Mr and Mrs H's application for permission to appeal to the Upper Tribunal was on the grounds of insufficiency of evidence in three areas. On 6 April 2009 Judge Rowland refused permission in relation to the two areas relating to whether Ash Lea was appropriate for L. The application was not renewed and it was accordingly definitively established that Ash Lea was appropriate. Judge Rowland gave permission in relation to the third area, transport costs.

The respondent submitted that:

(a) the issue of transport costs was irrelevant to the decision the tribunal had to make and unnecessary for its decision;

(b) but (in the event that point (a) did not succeed), the tribunal did not err in its approach to the evidence relating to transport costs.

The respondent's point (a) was in the nature of a cross-appeal, alleging that the tribunal erred in law on a ground other than that advanced by the appellant, and logically fell to be determined first.

On the application of the respondent an oral hearing was held. This was conducted by video link to allow the Nottingham-based parties to attend locally. I am grateful to Mr and Mrs H and to Mr Auburn for their participation in the hearing.

SENDIST as a creature of statute had no inherent powers: see White v. LB Ealing [1998] ELR 203, 220 E-F. Its powers, and now those of the First-tier Tribunal on appeal, are set out in section 326(3) of the 1996 Act:

"On an appeal under this section, the Tribunal may –

(a) dismiss the appeal,

(b) order the authority to amend the statement, so far as it describes the authority's assessment of the child's special educational needs or specifies the special educational provision, and make such other consequential amendments to the statement as the Tribunal think fit, or

(c) order the authority to cease to maintain the statement."

The provision of transport is not "educational provision": R v. LB Havering, ex parte K [1998] ELR 402, 404 and R v. Islington BC, ex parte GA, unreported, Mr Jack Beatson QC 8 September 2000 at paragraphs 6 and 17. There is no provision within the special educational needs legislation saying that the naming of a school carries with it the right to transport to that school and indeed, on the authorities, the converse is the case: see R v. Essex CC, ex parte C [1994] ELR 54 at 63D-G and 65G. (Though that case was decided on previous legislation, it remains relevant for this purpose; and the observations in it on the present point are unaffected by the subsequent appeal in Re C (above).) It follows that the First-tier Tribunal does not have jurisdiction as such to order that transport be provided. I return below to whether and to what extent the areas in which it does have jurisdiction may bear indirectly on this question.

Though the tribunal has no jurisdiction over school transport issues as such, it is helpful in the present context to set out the regime in Part IX of the 1996 Act. Particularly relevant for present purposes is section 508B, which is in the following terms:

"(1) A local education authority in England must make, in the case of an eligible child in the authority's area to whom subsection (2) applies, such travel arrangements as they consider necessary in order to secure that suitable home to school travel arrangements, for the purpose of facilitating the child's attendance at the relevant educational establishment in relation to him, are made and provided free of charge in relation to the child.

(2) This subsection applies to an eligible child if–

(a) no travel arrangements relating to travel in either direction between his home and the relevant educational establishment in relation to him, or in both directions, are provided free of charge in relation to him by any person who is not the authority, or

(b) such travel arrangements are provided free of charge in relation to him by any person who is not the authority but those arrangements, taken together with any other such travel arrangements which are so provided, do not provide suitable home to school travel arrangements for the purpose of facilitating his attendance at the relevant educational establishment in relation to him.

(3) "Home to school travel arrangements", in relation to an eligible child, are travel arrangements relating to travel in both directions between the child's home and the relevant educational establishment in question in relation to that child.

(4) "Travel arrangements", in relation to an eligible child, are travel arrangements of any description and include–

(a) arrangements for the provision of transport, and

(b) any of the following arrangements only if they are made with the consent of a parent of the child–

(i) arrangements for the provision of one or more persons to escort the child (whether alone or together with other children) when travelling to or from the relevant educational establishment in relation to the child;

(ii) arrangements for the payment of the whole or any part of a person's reasonable travelling expenses;

(iii) arrangements for the payment of allowances in respect of the use of particular modes of travel.

(5) "Travel arrangements", in relation to an eligible child, include travel arrangements of any description made by any parent of the child only if those arrangements are made by the parent voluntarily.

(6) "Travel arrangements", in relation to an eligible child, do not comprise or include travel arrangements which give rise to additional costs and do not include appropriate protection against those costs.

(7) For the purposes of subsection (6)–

(a) travel arrangements give rise to additional costs only if they give rise to any need to incur expenditure in order for the child to take advantage of anything provided for him in pursuance of the arrangements, and

(b) travel arrangements include appropriate protection against those costs only if they include provision for any expenditure that needs to be incurred for the purpose mentioned in paragraph (a) in the case of the child to be met by the person by whom the arrangements are made.

(8) Travel arrangements are provided free of charge if there is no charge for anything provided in pursuance of the arrangements.

(9) Schedule 35B has effect for the purposes of defining "eligible child" for the purposes of this section.

(10) References to a "relevant educational establishment", in relation to an eligible child, are references to–

(a) in the case of a child who is an eligible child by virtue of falling within any of paragraphs 2, 4, 6, 9, 11 and 12 of Schedule 35B, the qualifying school (within the meaning of that Schedule) at which the child is a registered pupil referred to in the paragraph in question, and

(b) [not material]

(11)[not material]"

Who is an "eligible child" for this purpose is determined according to whether a child falls within one of a number of paragraphs within Schedule 35B of the 1996 Act. These, in general terms, deal with children with special educational needs, a disability or mobility problems (paragraphs 2 and 3), children who cannot reasonably be expected to walk because of the nature of the routes (paragraphs 4 and 5), children outside walking distance where no suitable alternative arrangements have been made (paragraphs 6 to 8), and children entitled to free school meals or whose parent receives the maximum rate of working tax credit (paragraphs 9 to 14). Despite having special educational needs, L does not meet the conditions of paragraphs 2 or 3: the issue is whether she meets the terms of paragraph 6, which are as follows:

"A child falls within this paragraph if–

(a) he is of compulsory school age and is a registered pupil at a qualifying school which is not within walking distance of his home,

(b) [not material], and

(c) no suitable arrangements have been made by the local education authority for enabling him to become a registered pupil at a qualifying school nearer to his home."

A community special school, such as both Foxwood and Ash Lea, falls within the definition of "qualifying school" in paragraph 15 of the Schedule.

Of central importance to the present case is sub-paragraph (c) quoted above. Similar provisions to paragraph (c) are found in paragraphs 2, 4, 7, 9 and 12 of Schedule 35B. If "suitable arrangements" have been made by the local education authority for enabling the pupil to become a registered pupil at a qualifying school nearer to his or her home, then the requirements of the paragraph are not met. A pupil, such as L, who attends a school further from home than a school which is the subject of the "suitable arrangements", for instance because his or her parents prefer this, will not meet this condition, and, unless he or she meets one of the other conditions, will not be entitled to home-school transport. Because of its prevalence within Schedule 35B, the principle described in this paragraph (termed for brevity in this statement of reasons "the nearest suitable school" principle) is a central part of school transport legislation. The "suitable arrangements" in L's case were the naming of Ash Lea in the statement, which would then require the governing body to admit her: see section 324(5)(b) of the 1996 Act. With the possible exception of the powers of the Secretary of State under Chapter 1 of Part IX of the 1996 Act relating to the determination of disputes and similar matters, statute does not provide a remedy in respect of section 508B. Specifically, statute does not confer any right of appeal to the tribunal. In the absence of a statutory appeal, challenges in this area need to be, and are, brought by way of applications for judicial review (unless the issue falls to be decided as part of a truancy prosecution).

It will be noted that Schedule 35B, by paragraphs 2 and 3, expressly addresses the position of children with special educational needs and thus contemplates them falling within the section 508B regime.

I am told by Mr Auburn that where there is a dispute over school transport, appeals to SENDIST (or now the First-tier Tribunal) are sometimes brought, as was the effect – whether or not the intention – in this case, for the purpose of seeking a ruling that a nearer suitable school named by the local authority is not in fact suitable, so as to make it harder for the local authority to maintain that the school is suitable and potentially to strengthen the parents' hand if an application for judicial review comes to be made. I can readily see that such a course has the advantage of enabling the suitability of a school to be assessed by persons who are particularly well qualified, and who are frequently called upon, to do so and, as I have heard no arguments on whether or not this is a proper reason for conducting an appeal to SENDIST or the First-tier Tribunal, I merely note the existence of the practice.

In the present case, the tribunal reached a conclusion that Ash Lea was suitable and, as that conclusion cannot now be challenged, any attempt to bolster the parents' case that L was an "eligible child" under paragraph 6 for the purposes of the transport claim was unsuccessful.

I accept the submission by Mr Auburn that, having so concluded, the tribunal should simply have stopped there and that by proceeding to rule on the relative transport costs, the tribunal was straying beyond its jurisdiction and was thereby in error of law.

Mr Auburn urged me to infer that the tribunal overlooked the existence of Part IX. That may or may not be so and certainly the tribunal did not have the advantage of submissions as to the legal issues presented with the degree of clarity with which Mr Auburn has presented them to me. What I think can fairly be said is that the tribunal erred in the manner in which it sought to apply section 9 and Part IV of the 1996 Act.

In particular, paragraph 3 of Schedule 27 sets out mechanisms for determining parental preference before providing in sub-paragraph (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."

However, in this case, the respondent had specified the parents' preferred school in the statement. The respondent did not seek to argue that it was entitled not to name Foxwood on either of the available grounds under the above provision. Likewise under section 9, the respondent had had regard to the parents' preference and duly arranged for L to attend the preferred school. Once it had concluded that Ash Lea was suitable and thus that the respondent was entitled to name it also, the tribunal had decided all matters which were within its jurisdiction. Had this been a case where the local authority was overriding parent preference, a comparison of costs, including transport, would have been necessary, but it was not.

The tribunal had no jurisdiction to consider transport costs when all other matters had been determined.

Because of the view which I have reached in relation to jurisdiction over transport costs, there was nothing remaining for the tribunal to consider and accordingly, whether or not it erred in law in its approach to the evidence in relation to transport costs is immaterial.

The decision of the tribunal is set aside. Although the tribunal found in its reasoning that Ash Lea School is an appropriate placement, this is, at any rate overtly, not stated in the tribunal's order and accordingly I substitute an order in the terms set out at the beginning of this statement of reasons. It seems to me that the form of order, slightly amended from the wording originally put forward by the respondent, more adequately reflects the legislative structure of the 1996 Act, which may serve to help reduce the incidence of the sort of difficulties which occurred in this case, even before it reached the First-tier Tribunal.

(Signed on the original)

C G Ward

Judge of the Upper Tribunal

16 September 2009