THE UPPER TRIBUNAL	Appeal No. S 3171 2009  
ADMINISTRATIVE APPEALS CHAMBER

B v Worcestershire County Council (SEN)

Hearing at Harp House, London on 3 08 2010.
Ms N Morris for the appellant parents
Miss A Bicarregui of counsel for the respondent Council 

DECISION

The appeal is dismissed 

REASONS FOR DECISION

1	This is an appeal by the parents of a child (M) at year 9 in education terms against the decision of the First-tier Tribunal (the Tribunal), register no 09-00283,sitting in Birmingham on 26 June 2009 about Part 4 of the statement of special educational  needs prepared for M by Worcestershire County Council (the Council). Partial permission to appeal was given by a First-tier Tribunal judge. I extended that permission to be full permission. 

2	I held a hearing of the appeal on 3 8 2010 at Harp House in London. Ms Morris, representing M’s parents, put forward two main grounds of appeal at the hearing, withdrawing others previously raised. I deal only with those grounds in this decision, together with issues raised by me when granting full permission to appeal and on which both parties have commented.

The facts 
3	The Tribunal reached agreement with the parties at its hearing about most of the contents of Parts 2 and 3 of the statement for M, and decided other amendments. The Tribunal ordered those amendments to both Part 2 and Part 3 of the statement. It is common ground that the Tribunal’s decision on Parts 2 and 3 is not under appeal. 

4	The focus was only on the decision on Part 4. The formal decision was to dismiss the appeal for M against the Council’s decision. The effect is that School P, a local authority mainstream school, is named as M’s school. The parents’ choice was an independent school, School B, which M was already attending. It is common ground that School B was an appropriate school for these purposes. The Tribunal found that School P was an appropriate school. The parents’ appeal was dismissed because the Tribunal agreed with the Council that “it would be an unreasonable use of public expenditure for M to continue to attend School B.”

The First-tier Tribunal  
5	Before turning to the grounds of appeal, I must deal with events before the appeal reached the Upper Tribunal. The tribunal (Judge Davies and two members) heard the appeal on 26 June 2009. Case management directions had been given the previous month by a tribunal judge and extensive documentation had been supplied by both parties. Both sides produced witnesses to help the Tribunal both about M and about the schools. Indeed, the appeal appears to have been prepared on all sides in accordance with best practice. The tribunal heard the case on the day listed. It issued its decision, running to over 9 typed pages, promptly on 9 July 2009. I also have before me a full record of proceedings taken by the judge at the hearing. 

6	The appellants made an application for review or permission to appeal, the reasons for which were more extensive than the decision itself. The official response was a formal decision that the Tribunal refused to review the decision under rule 48 (of the Tribunal Procedure Rules of the First-tier Tribunal, Health Education and Care Standards Chamber), but would review it under rule 47. The decision directed both a submission from the Council and a hearing of the review on 9 September 2009. It identified as the relevant issues: case law on the suitability of School P; case law in relation to parental preference and to public expenditure; whether the tribunal had evidence to support its decision; that the tribunal did not give reasons for its decision on class sizes. 

7	The outcome was a review decision of the Tribunal on 9 November 2009 that was some pages longer than the original decision. It decided to take no action on the rule 47 review but to grant limited permission to appeal. The appellants responded with an application to the Upper Tribunal for full permission to appeal. The grounds of appeal were almost as extensive as the review decision. I was unable to establish on the papers before me when I first considered the application what was included and what was excluded by the limited permission granted below. Rather than further prolong this stage of the proceedings, I granted full permission to appeal and invited submissions on that basis.
 
8	Since this appeal started, an Upper Tribunal panel of leading tribunal judges (Lord Justice Carnwath, SPT, Mr Justice Walker, President of the Administrative Appeals Chamber, and Upper Tribunal Judge Rowland) has considered in detail the Tribunal Procedure Rules about reviews by First-tier Tribunals. The decision was on a judicial review of a decision of a mental health review tribunal: R(RB) v First-tier Tribunal (Review) [2010] UKUT 160 (AAC). But it applies equally to appeals as well as to judicial review cases, and to all chambers of the First-tier Tribunal the decisions of which go to the Administrative Appeals Chamber. 

9	That decision sets out the relevant legislation in section 9 of the Tribunals, Courts and Enforcement Act 2007 and rules 47 and 49. I follow and adopt, without repetition, the reasons of the Tribunal on that legislation for this appeal. I draw attention only to two short passages in that decision, both of which apply here:

“[24] 	It cannot have been intended that the power of review should enable the First-tier Tribunal to usurp the Upper Tribunal’s function of determining appeals on contentious points of law. Nor can it have been intended to enable a later First-tier Tribunal judge or panel, or the original First-tier Tribunal judge or panel, to re-decide the matter. This is intended to capture decisions that are clearly wrong, so avoiding the need for an appeal. The power has been provided in the form of a discretionary power for the Tribunal so that only appropriate decisions are reviewed. This contrasts with cases where an appeal on a point of law is made, because, for instance, it is important to have an authoritative ruling.
...
[28]	... The key question is what, in all the circumstances of the case including the degree of delay that may arise from alternative courses of action, will best advance the overriding objective of dealing with a case fairly and justly – see rule 2 of the HESC Rules. The answer will depend on a large number of factors ...”

10	I indicated to both parties that I did not consider the decision of the Tribunal refusing to review its original decision relevant to this appeal, and both accepted this. Whether the Tribunal erred in law is to be determined by the decision following the June hearing, not later justifications. The Court of Appeal observed in Oxfordshire County Council v GB and others [2001] EWCA Civ 1358 at [9]:
“... we do not consider it generally appropriate that a statutory tribunal which is required to give reasoned decisions should respond to an appeal by purporting to amplify its reasons.”   

The unfortunate result in this case is that it only came before me for hearing over a year after the original decision. M’s mother rightly pressed at the hearing here for an early decision from me, as another school year would shortly start. I have given this decision priority since that hearing. 

The grounds of appeal now submitted
11	Ms Morris presented two grounds of appeal, helpfully set out in a short skeleton argument. The first was that School P was not suitable for M, and that the Tribunal erred in law in finding it was. The second was that the Tribunal was wrong in law in deciding about the relative costs of School B and School P. 

12	I did not accept her submission on one point. She sought to add new evidence arising from the outcome of a Freedom of Information application against the Council made after the appeal was heard by the Tribunal. The information established was not before the Tribunal when it made its decision in June 2009. Nor was it information that the Council had refused to give the Tribunal. Miss Bicarregui objected to its production and I accepted the objection. 

13	As Ms Morris rightly stated, the starting point in deciding on the school to be named in Part 4 is with the parental preference. This was for School B. She based her case against School P being named on the test in Paragraph 3 of Schedule 27 to the Education Act 1996. That provision was recently considered by Stadlen J in R(Hampshire County Council) v R [2009] EWHC 626 (Admin). That applies where the choice of placements was between two maintained schools. This is however a case where School P is a maintained school and School B is an independent school. As Miss Bicarregui rightly pointed out, the test here is that in section 9 of that Act. In deciding on a school, a local authority, and a tribunal on appeal, must:

“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.” 

That gave the Council and the Tribunal a discretion which, on its part, the Tribunal must exercise judicially. 

Suitability
14	The question of suitability is of its essence a question of judgment based on the evidence, both factual and expert, marshalled for the Tribunal by the parties, usually on direction from the Tribunal itself. In this case, the suitability of both School B and School P for M are to be judged against the statement of educational needs agreed by the parties and ordered by the Tribunal. That statement is common ground before me. The Council conceded that School B was appropriate. The issues in dispute are whether the Tribunal took a decision was entitled to decide that School P was appropriate, and if the Tribunal took the decision properly. The Tribunal approached the appeal with important advantages. It had a clear statement of educational needs, and it had before it considerable documentation about School P, produced in part following its own case management directions, and the special education needs coordinator from the school as a witness. It also had the advantage of being a specialist tribunal able to draw on the experience and expertise of all three tribunal members.   

15	The Tribunal adopted a standard approach to writing its decision in presenting a number of paragraphs under the heading “Facts” and a further number of paragraphs headed “Conclusions with reason”. But, as Miss Bicarregui observed, it did not follow these headings in the content of those paragraphs. Nor was it readily apparent on some points whether the Tribunal was repeating evidence or making findings from it. Indeed, the Facts section of the decision reads more as a record of proceedings than as findings of fact. Many of the key findings of fact are in the Conclusions. Paragraph F of the Conclusions includes the clear finding that School P is appropriate for M. It found that it is “obviously an excellent school” and notes that the appellants accepted it to be the best maintained school in the area. (The evidence shows that M’s sibling was there, so the appellants may be assumed to have a clear view of that.) The Tribunal also found that School P “is able to deliver specialist Spld teaching”, and that M’s “levels of ability mean that [M] is able to be placed within the middle sets at the school”. 

16	The Tribunal had discussed in connection with Part 3 (Conclusions, paragraph B) the need for M to be taught in small classes and recorded that “we were not persuaded that M requires teaching in a small class throughout the day”; it had accepted expert evidence that M would need to accept larger groupings; and it found that M should be able to cope with them given the correct support. In particular, it found that small groups were not an educational necessity for M.

17	The Tribunal then turned to costs issues, reflecting a concern about how far School P could resource delivery of education to M without additional costs. That rightly did not detract from its consideration of the suitability of School P given that there was no significant evidence recorded by it that the relevant provision would not be made. On the facts of this appeal that issue was one of public expenditure not appropriateness.

18	  Ms Morris sought to have the decision that School P was appropriate set aside for two reasons. First, the agreed provision in Part 3 of the statement included:

“(B)	1.	A broad and balanced curriculum such as the National Curriculum, differentiated by the relevant subject teacher, and by learning style, ability, aptitude, and SEN, to reflect M’s individual needs.”
	
Ms Morris criticised the Tribunal by reference to this aspect of the statement because the evidence was that the differentiation would be by assistants, not by subject teachers – other than the SENCO, who is an English teacher. 

19	The Tribunal clearly had this issue in mind. It found (Conclusions, paragraph F) that: 

“[M] should be able to access the curriculum with discreet support being given by a trained TA who will know when and where not to intervene. The trained TA will be sympathetic to [M’s] difficulties and should be able to carry out the necessary differentiation of [M’s] work. We do not conclude that this requires a teacher to do this all the time.”

As Ms Bicarregui pointed out in reply, this showed both that the Tribunal had considered the issue specifically at the hearing (with the SENCO present), and that it had made no adverse finding against School P. She emphasised that an appellate tribunal should approach that decision with caution, citing in particular the recent warning of Waller LJ in H v East Sussex County Council and others [2009] EWCA Civ 249 that  this particularly applied to the rejection of expert evidence. 

20	The second issue identified by Ms Morris was that School P could not provide the required levels of personal support for M. The Tribunal decision records that Part 3 of the statement was to be amended by adding: “His practical skills require support but in an unobtrusive way to preserve his self-esteem and independence.” The tribunal records this as an agreed amendment. I therefore assume that this was done although the copy of M’s statement produced to me did not contain that phrase. Her main point was that School P had only a few students with special educational needs while School B had a high proportion of such students. So any provision to M could not be unobtrusive. For the Council Miss Bicarregui again contended that this was an attempt to challenge a decision on the facts and that there was no error of law.

21	The Tribunal decision recorded specific evidence from witnesses about M’s acceptance of additional support. It found (Conclusions, paragraph C) that it is not persuaded that it was necessary to teach M with other children with specific learning difficulties, and (at Conclusions, paragraph F) it recited M’s own evidence about a preference for small groups and support. It concluded that none of these issues make School P inappropriate for M.
	
22 	These are exactly the kinds of issues around which an appellate tribunal should tread with care, in particular ignoring its own views about, for example, curriculum differentiation. On that issue, it is for the Tribunal, having heard the parties and witnesses before it, to identify how the required differentiation is identified, planned, resourced, delivered, and monitored in School P, and to decide whether that evidence sufficiently meets the requirements of the statement. It does so within the context of the statement as a whole. Ms Morris took a literal approach to the terms of the specific paragraphs in M’s statement, looking at them somewhat in isolation. For example, she appeared to argue that every aspect of curriculum differentiation must be undertaken by the relevant specialist teacher regardless of the school’s own methods of dealing with each aspect of differentiation or of the other provisions in the statement for M. 

23	The Tribunal took a broader view. It made an express finding (in paragraph F) about delivery of differentiation at School P, and indicated it was satisfied with this. On the other issue raised by Ms Morris, it was satisfied that School P could make TA support available in an appropriate way. It did so having heard and having accepted the direct evidence of the SENCO, whom it found was the person who would have to manage the provision and the budget (paragraph J).

24	I see nothing in the approach of the Tribunal, reading its June decision in the context of the documentary evidence and the evidence accepted from the witnesses heard at the hearing, that shows that the Tribunal took a view on either of these issues so broad that it was outside the range of views that a reasonable tribunal had the discretion to adopt on the evidence before it. I do not therefore accept either aspect of that ground of appeal. School P is an appropriate school as at the time of that decision. 

Unreasonable public expenditure
25	I take the other ground of appeal to be a challenge to the way that the Tribunal dealt with the necessary decision under section 9 (set out above) about the effect of the choice of school for inclusion in Part 4 on public expenditure incurred for the Council either directly or by the specific school. It was common ground before the Tribunal that the cost of educating M at School B at the time relevant to the Tribunal’s decision was £14,805, namely the fees for M attending School B as a day student, with no additional costs. There was limited common ground on the cost of attendance at School P, the maintained school. It was agreed that the AWPU was £2,832. It was also agreed that the cost of transport to and from School P should have been taken into account (although the Tribunal did not consider this) and that the annual cost was £310.

26	The Council’s view was clear. It would cost £14,805 to send M to School B for a year, accepting that the parents would deal with any transport arrangements. The AWPU (age weighted pupil unit of funding) is £2,832 for the same period. That is what it would cost in terms of additional expenditure to education M at School P. The Council submitted that there were no further costs resulting from its naming School P. On that basis the extra cost of naming School B was unreasonable public expenditure. 

27	Ms Morris made a detailed submission about the additional costs she considered inherent in proper delivery of education to M at School P. Her submission based on those costs was that the public expenditure costs that arose from educating M at School P would not be less than those of educating M at School B. She contended that two further specific sums should be included in the costs of School P, with other unquantified factors also being relevant. The two specific sums to be added are £8554 for the 17.5 hours TA support in class each week determined in Part 3 of M’s statement, and £4936.88 for the 2 hours specialist teaching each week also in Part 3. I was told that these figures included the employer’s on-costs of employing staff and were full figures, a point Ms Morris had questioned. I was also taken through the necessary sums and the underlying assumptions about working weeks and years, and accept them as correct in arithmetical terms. 

28	Ms Morris also drew attention to the absence of costing of voice recognition software and training, further additional TA support, the costs of a teacher differentiating the curriculum, and costs of monitoring.

29	Miss Bicarregui contended that neither of the two specific items represented actual public expenditure by either the Council or the school. The SENCO had given evidence that she would herself be able to provide the required specialist teaching and that she had the resources to ensure that the necessary hours of TA support was provided from within the existing school budget. The Tribunal had been taken to the relevant aspects of the arrangements for financing the school and had – after some hesitation with regard to the TA support – accepted the Council’s case. Miss Bicarregui resisted the other items raised by Ms Morris as either not being in evidence or as presenting no identified additional cost. Work by a teacher on differentiation, for example, would be part of the normal responsibilities of the teacher.

30	It was common ground that there is little help from the legislation on this issue, and neither party sought to rely on any other central guidance about what should be regarded as public expenditure for these purposes. Instead, both parties relied on the caselaw. The decision of the Court of Appeal in Oxfordshire, delivered by Sedley LJ, sets the framework for the discussion. This was a decision expressly on section 9 and on the issues to be identified in comparing a maintained school with an independent school. The Court made it clear that this was not a question left at large by the legislation. Rather, at [18]: 

“as a matter of purposive interpretation of the section, it seems to us that what Parliament has called for in the ordinary run of cases is a consideration of the
burden that the respective placements will throw on the annual education budget when matched against their educational advantages and drawbacks for the child in question. Costs which either the private provider or the LEA would be incurring with or without the proposed placement are accordingly not in general relevant.”

The Court rejected on the findings so far made in that case that the costs of specialist teaching and additional TA hours were to be included in the costs of the child attending the maintained school. But it did not decide the matter definitively. Its decision was to send the case back for further facts to be found.

31	The other decision to which the Tribunal referred was that of Underhill J in Coventry City Council v SENDIST and AB and MB [2007] EWHC 2278 (Admin), a decision not binding on the Upper Tribunal but which, following the normal conventions, is to be followed unless there is clear reason not to do so. This was again a case about a comparison between a maintained school and an independent school. The tribunal found that the maintained school did not provide for the child’s needs in full and named the independent school. It also found that the cost of keeping the child in the maintained school was higher than the independent school’s fees. Much of the detail in the judgment emphasises how fact-specific – and local authority specific – is any decision under section 9. 

32	The Tribunal, at paragraph 7, recorded that Ms Morris made a general submission based on Coventry about additional costs incurred by a school rather than the local authority. In Conclusions paragraph F it stated that the Coventry case held that, “in that case, payment for additional support such as specialist teaching and TA support by the school out of delegated funds still remained additional expenditure made by the local authority that should be included in the calculation”. The important phrase in that formuIation, in my view, is “in that case”. It is not a general authority for any proposition about, for example, the costs to be attributed to TA support nationally. These are questions of fact, and therefore of evidence, not of legislation or general rules. That and other such decisions serve to emphasise the importance of clarifying both in the evidence to the First-tier Tribunal and in the decision of that tribunal what is the factual position in connection with that maintained school and that local authority in that year “in the ordinary run of cases” and then with regard to any special aspects of that particular child. 

33	How is that law to be applied here? There is no significant evidence to suggest that, in terms of public expenditure, this is not “in the ordinary run of cases”. It is not, for example, a case of a child whose severe disabilities require structural adjustments to buildings, expensive additional equipment, or exceptional levels of staffing. So the task of the Tribunal was to identify what, in addition to the AWPU and any transport costs, are the actual public expenditure costs of providing for M in School P.  

34	Section 9 does not invite speculation about this. Nor does it invite a forensic examination of every detail of possible on-costs of a placement or savings from a non-placement. For example, Ms Morris suggested that if School B were named for M rather than School P then not only would the Council save the AWPU and transport costs, but the school could also reduce the hours for which it employed a TA. That is too speculative. The decision should be approached on the basis that the tribunal is working to the civil standard of proof, not to a mathematical formula. The tribunal should identify probable costs when it takes its decision and not be concerned about, for example, possible savings after the event. Nor does section 9 require an arithmetical calculation. Disproportionate precision is not necessary. Rather, it is a balancing exercise of which the probable comparable costs of the two placements are part. What is required is sufficient accurate information to ensure that anything material to the final decision is considered in that balancing exercise. Its decision should reflect the auditor’s concept of materiality rather than the economist’s concept of marginal cost. For an auditor, information is material if its omission or misstatement could influence the economic decisions of users. Materiality depends on the size of the item judged in the particular circumstances.

35	Applying those issues to this case, did the Tribunal balance the issues within the scope of discretion given to it? That must be judged by the evidence before the Tribunal. The tribunal had evidence on which it could accept, and it did accept, that there would be no additional public expenditure for specialist teaching costs. Nothing in Ms Morris’s arguments suggests any error of law on that point. The Tribunal confessed to more difficulty in dealing with the question whether School P could meet the additional TA costs of the placement from existing resources. But again it had evidence that there would be no additional costs, and it accepted that evidence. It noted some additional cost on voice recognition technology. It should have noted some additional costs on transport. 

Conclusion
36	The Tribunal did not conduct any precise calculation of the differences between the costs of School B and School P, but it did not need to do so. It had already considered what School B had to offer compared with School P. It had decided that the additional specialist teaching costs and costs for additional TA time did not add to public expenditure. On that basis, it reached the conclusion that the additional cost of naming School B would involve unreasonable public expenditure as there was a significant discrepancy between the two costs. That this was so was obvious given the difference between School B’s fees and the costs identified by the Tribunal as the costs of a placement at School P. The only specific error in its reasoning was the omission of the transport costs as that was in evidence. But that was only some £300 and not material in the context of its decision. The Tribunal had no evidence before it to suggest any of the other costs would be material in that context. 

37	I see nothing in the evidence or the submissions from Ms Morris that suggest any material error in the Tribunal’s assessment under section 9. I must reject this ground of appeal also.

38	My conclusion is that the appeal fails. The Tribunal decision stands. It is more than a full academic year since that was taken. But it is for the parties, and not this tribunal, to consider whether events in the last year warrant a review of that decision. 	

David Williams
Upper Tribunal Judge
9 08 2010

[Signed on the original on the date stated]