IN THE UPPER TRIBUNAL Case No  HS/169/2011

ADMINISTRATIVE APPEALS CHAMBER

 

Before UPPER TRIBUNAL JUDGE WARD

 

Attendances:

 

For the Appellant: Mr David Wolfe and Ms Tessa Hetherington, instructed by Messrs Maxwell Gillott

 

For the Respondent: Mr Richard McManus QC and Ms Anna Bicarregui, instructed by Legal Services, London Borough of Bexley

 

Decision: 

 

1. There is to be no publication of any matter likely to lead members of the public directly or indirectly to identify the child who is the subject of the appeal: rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 applies.

 

2. The appeal on a point of law is allowed (though, in the usual way, this carries no implications for the eventual outcome when the case is remitted.)  The decision of the First-tier Tribunal dated 9 December 2010 in case 09-02066 involved the making of an error of law and is set aside.  The case is referred to the First-tier Tribunal (Health, Education and Social Care Chamber) for rehearing in accordance with the law as set out in the Reasons below.  The rehearing shall be conducted by the same tribunal unless to do so would unavoidably result in unreasonable delay, in which case the tribunal shall be wholly differently constituted.

 

3.  On the assumption that the re-hearing will be conducted by the same tribunal, I direct that it must apply section 9 of the Education Act 1996 (for which purpose it shall make any necessary further findings of fact) and shall then (having considered such further issues, if any, as may emerge from the evidence then before it) make a fresh decision as to the school to be named in Part 4 of the statement.  Other than in these respects, it will be open to the tribunal, if it sees fit, to adopt relevant parts of its decision of 9 December 2010.

 

4. Liberty to apply for further directions in the event that the remitted case cannot be heard by an identically constituted tribunal without unreasonable delay, and generally.

 

REASONS FOR DECISION

 

1. This case concerns the education of V, a girl now aged 13.  Her mother wishes her to attend the A school and the local authority the B School.  Both are maintained special schools.  The A school is maintained by the respondent local authority (“Bexley”).  The B school is maintained by the Royal Borough of Kensington and Chelsea (“RBKC”).

 

2. The First-tier Tribunal in its decision of 9 December 2010 found as fact that the B school was prefunded for 75 places but that there was an agreement that the admission of an additional 5 pupils during the course of an academic year carried no additional cost.  There was a place available for V as one of the additional 5 pupils.  The costs of transport would be nil or minimal.  RBKC recoups costs from other local authorities that place children at B school, including a 5% fee.  The cost to Bexley if V were to attend the B school would be £25,500, of which some £1,250 would be attributable to the 5% fee.

 

3. The tribunal held, and there is no challenge to it, that “factually it is clearly right that there is no additional public expenditure in [V] attending [B school].  Even the 5% extra charge is paid by one LA to another so there is no loss to the public purse as a whole.”

 

4. The suitability of both schools was not in dispute.  The tribunal held that “as we set out below we see little, if any, educational benefit of placing [V] [in school B] compared to [school A].”  In fact, the tribunal does not “set out below” as it said it was doing.  While this does not feature as a ground of appeal, I consider that it is nonetheless important when it comes to the disposal of this case for the reasons set out at [60] below.

 

5. The case thus presents particularly acutely the question of the interaction between two provisions, each concerned with parental preference: paragraph 3(3)(b) of schedule 27 of the Education Act 1996 and section 9 of that Act.  The tribunal considered that the decision of the House of Lords in B v London Borough of Harrow and others [2000] 1 All ER 876 was directly in point and binding. The detriment to the local authority’s resources under para 3(3) of sch 27 was sufficient to determine the appeal against V’s mother.  The tribunal did not attempt to say in any detail how the Harrow case affected section 9.

 

6. Permission to appeal was given by a judge of the First-tier Tribunal.

 

7. The case had had a protracted history.  The appeal had been before the First-tier Tribunal previously, which had issued a decision on 9 February 2010.  Following an application for permission to appeal on behalf of V’s mother, the tribunal decided to hold a hearing on 13 May 2010.  This was before the guidance as to the exercise of the review power provided by a three-judge panel of the Upper Tribunal in R(RB) v FtT [2010] AACR 2010.  The tribunal decided to review its previous decision because:

 

“…The Tribunal is satisfied that it is arguable that it misdirected itself as to …whether [School A] was able to meet V’s special educational needs and whether it should have adjourned the hearing to allow for further evidence to be called.  Further the Tribunal is satisfied that it is arguable that it misdirected itself as to the law on section 9 of the Education Act.”

 

It then went on to give Directions, running to over two typed pages, which were essentially targeted at a full re-hearing.  If the tribunal had had the benefit of the guidance in RB that “if a power of review is to be exercised to set aside the original decision because of perceived error of law, this should only be done in clear cases” it might not have decided to exercise the power based merely on “arguable” errors of law.  I have no doubt however that what the tribunal was doing, even though it does not say so in terms, was setting aside its decision of 9 February 2010 under section 9(4)(c) of the Tribunals, Courts and Enforcement Act 2007 and proceeding to re-decide the matter under section 9(5)(a), leading to the decision of 9 December 2010 now under appeal.

 

8. Section 9 of the 1996 Act provides:

 

“The Secretary of State and local 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. “

 

9. The basic structure of the duty to assess a child’s special educational needs in certain circumstances and then, if relevant conditions are met, for a local authority  to issue a statement of those needs is set out in Part IV of the 1996 Act and is sufficiently well-known not to require to be set out at length here.  Reference should however be made to section 324(4), which provides:

 

“(4) The statement shall—

(a) specify the type of school or other institution which the local authority consider would be appropriate for the child,

(b) if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement, and

(c) [not material].”

 

10. Schedule 27 makes provision for the making and maintenance of statements.  Paragraph 3(1) requires a local authority to make arrangements for enabling a parent of a child who is the subject of a proposed statement or proposed amended statement to express a preference as to the maintained school at which he wishes his or her child to be educated and to give reasons for that preference.  Sub-paragraph (3) provides:

 

“(3) Where a local 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.”

 

11. There is a different regime for parental choice for children who do not have statements of special educational needs.  Under section 86(1) of the School Standards and Framework Act 1998:

 

“(1) A local authority shall make arrangements for enabling the parent of a child in the area of the authority—

(a) to express a preference as to the school at which he wishes education to be provided for his child in the exercise of the authority's functions, and

(b) to give reasons for his preference.”

 

Section 98(7) of the 1998 Act establishes that section 86 does not apply to children with statements of special educational needs.

 

12. Provision (now in section 207 of the Education Act 2002) is made for regulations to govern the recoupment of costs between authorities when a child is educated by a local authority other than the one to which he or she  “belongs”.  The current provisions are the Education (Inter-authority Recoupment) Regulations 1994/3251.  Recoupment is required in respect of, among others, children with statements of special educational needs.  The amount is determined, in default of agreement between the authorities, by the Secretary of State. 

 

13. Bexley’s primary contention is that the First-tier Tribunal was correct in considering itself bound by Harrow; that case equally binds the Upper Tribunal and so the appeal should be dismissed.  This requires a careful analysis of what Harrow decided.  First, however, it is appropriate to look at section 9 in order to provide a context.

 

14. The materially identical predecessor to section 9 was section 76 of the Education Act 1944.  In Watt v Kesteven County Council [1955] QB 408, Kesteven did not operate a grammar school itself but had contractual arrangements with Stamford School, an independent school, to which it could send pupils, in respect of whom it paid the fees.  Mr Watt wished his sons to attend a Roman Catholic boarding school elsewhere.  Its fees were lower than those which Kesteven had agreed to pay to Stamford School. Mr Watt claimed that the authority was obliged by section 76 to send the boys to the school of his choice.  Denning LJ (as he then was) held that Kesteven had performed their duty when they made Stamford School available and thus “there was no occasion for section 76 to come into operation at all.” Parker LJ based his decision on the lack, at the material time, of a duty or power on the authority to do what Mr Watt was asking.  Birkett LJ agreed with both the other Lords Justices.  Thus the observations with regard to section 76 were obiter.  No challenge, however, is made to their approach.  Denning LJ said (at p 424)

 

“Section 76 does not say that pupils must in all cases be educated in accordance with the wishes of their parents. It only lays down a general principle to which the county council must have regard. This leaves it open to the county council to have regard to other things as well, and also to make exceptions to the general principle if it thinks fit to do so. It cannot therefore be said that a county council is at fault simply because it does not see fit to comply with the parent's wishes. And that is all that the father's complaint comes to in this case.”

 

15. Parker LJ observed (at p429):

 

“It was, I think, at one time contended on behalf of the plaintiff that the obligation to "have regard to the general principle that ..." meant that the authority must have exclusive regard to that general principle and, accordingly, that if and in so far as the parent's wishes were not incompatible with the two matters referred to, effect has to be given to these wishes. This, it seems to me, is plainly wrong, and indeed it was   in the end admitted that there might be other matters which an authority could take into consideration.”

 

16. Watt was followed by the Court of Appeal (Lord Denning MR, Fenton Atkinson LJ and Sir Gordon Wilmer) in Cumings v Birkenhead Corporation [1972] 1 Ch 12.

 

17. Returning to Harrow, that case concerned the educational needs of F. Harrow wanted her to attend Whittlesea School, which Harrow themselves maintained. F’s mother wanted her to attend Grangewood School, maintained by LB Hillingdon.  The Special Educational Needs Tribunal found as fact that it would cost Harrow between £11-12,000 if F were to attend Grangewood.  It had not addressed the impact on Hillingdon’s resources.  The case came before Moses J.  After referring to the tribunal’s conclusion that “F’s attendance at Grangewood School would not be compatible with the efficient use of their resources”, he identified the issue as being whether the tribunal erred in law in having regard only to Harrow’s resources, and in failing to undertake a comparison between the costs of educating F at Whittlesea in Harrow as opposed to Grangewood in Hillingdon.  At [18] – [23] he addressed the question “To whose resources does paragraph 3(b) of Schedule 27 refer?” (“3(3)(b)” was doubtless intended.)  He concluded, for reasons it is not necessary to set out, that it was the resources of Harrow with which it was concerned.  He then drew attention to the need to balance the efficient use of resources against parental preference. It is clear both from the language adopted by Moses J and by the authorities to which he referred that he was addressing the sch 27, para 3(3) test rather than that under section 9, as some of the cases concerned the equivalent test for children without statements now contained in section 86 of the 1998 Act but then in section 411 of the 1996 Act.

 

18. While his judgment set out the relevant law, including section 9, in my view it is not evident from his judgment that he was asked to consider any submission, akin to that in the present case, based on section 9 of the 1996 Act.

 

19. It should however be noted that in relation to that provision he observed:

 

“It is plain that parents of all children have a right to express a preference for a particular school whether the children have special educational needs or no (compare section 411(1) with paragraph 3(1) of schedule 27).  Moreover, a local education authority and funding authority are subject to an overriding general obligation to comply with those wishes, so long as that is compatible with efficient education, and it is not unreasonably expensive (see section 9 of the 1996 Act).”

 

20. B’s mother then appealed to the Court of Appeal.  The lead judgment was given by Sir Christopher Staughton.  He observed “There is only one point which is still in issue.  It arises from schedule 27 of the Education Act 1996….” To similar effect were Simon Brown LJ: “The central question raised by this appeal is what is meant by the word “resources” in paragraph 3(3)(b) of schedule 27 to the Education Act 1996” and Otton LJ, saying that Moses J “found that in the absence of the provision equivalent to section 411(5) the reference to resources in 3(3)(b) of schedule 27 did not include the resources of another authority.”  The Court of Appeal was unanimous in holding that the word “resources” as used in sch 27, para 3(3) included the resources of the receiving authority (Hillingdon) as well as those of the statementing authority (Harrow.)  The language throughout is to “resources” (i.e. the wording of schedule 27, para 3, rather than of section 9) and references to “balancing” are from their context to the balancing exercise required by the caselaw authorities in respect of sch 27, para 3.

 

21. In relation to section 9, Otton LJ observed that:

 

“Ever since the Education Act 1944 there has been a general presumption that children will be educated in accordance with the wishes of their parents so long as compatible with the avoidance of unreasonable public expenditure and the provision of efficient education (see section 76, now re-enacted as section 9, Education Act 1996).”

 

22. He then went on to observe that:

 

“In 1980 this general principle was enhanced and parents acquired a legal right, except in relation to children with statements, to express a preference, albeit a qualified preference, for the school the child was to attend (see section 6 Education Act 1980)”

 

and then that the Education Act 1993 “extended the same qualified right of preference to the parents of statemented children.”  He thus treated section 9 as part of the context for the exercise with which he was concerned. Likewise, Sir Christopher Staughton indicated that:

 

“[Section 9] does perhaps lend some colour to the special provision as to the efficient use of resources both in section 411 and in schedule 27.  But I certainly do not find it conclusive as to whether one is looking at the resources of the sending local authority or at the overall use of resources providing education for the particular child.”

 

Simon Brown LJ regarded the section as something with which his preferred construction of sch 27, para 3(3) “chimes”.  Section 9 was in my view accordingly being treated by all three Lords Justices as an aid to construction of sch 27, para 3 and not as giving rise to an independent issue in the appeal.

 

23. The decision of the House of Lords was given in a single speech by Lord Slynn of Hadley, with whom the other Law Lords concurred.  Lord Slynn stated at the outset (at 877j) that:

 

“...this appeal is concerned with a right of a local education authority not to give effect to a parent’s preference for a special school for her child on the grounds that the local education authority considers that the provision of such a place would be incompatible with the efficient use of resources”.

 

He was there using the language of sch 27, para 3(3).

 

24. He went on to set out the history of the matter, recording among other matters (at 879j) that:

 

“Moses J accepted that parents have a right to express a preference for a particular school whether or not the children have special needs and that a local education authority has an overriding general obligation to comply with those wishes, so long as that is compatible with efficient education and it is not unreasonably expensive”

 

before going on to set out the decision of Moses J in relation to para 3(3)(b).  It is evident from the passage in the judgment of Moses J, quoted at [19], that where Moses J is quoted by Lord Slynn as addressing “an overriding general obligation”, that was a reference to section 9.

 

25. Lord Slynn, having set out the background, then went on to decide whether the relevant resources were only those of the placing authority (Harrow) or also those of the receiving authority (Hillingdon), concluding the former to be the case and so reversing the decision of the Court of Appeal.

 

26. Even this much was academic on the facts. There had between the hearings in the Court of Appeal and the House of Lords been a further tribunal hearing which had concluded that even having regard to the resources of both authorities, the tribunal’s decision would be no different: see 880 d-f.  As Lord Slynn observed, “Despite this result it is accepted that the point of law arising out of the earlier proceedings ought to be decided by your Lordships’ House.”

 

27.  Lord Slynn reached his conclusion by deciding that there was a difference in the statutory schemes applicable to special schools and to other schools and that one could discern from legislative omission in the former that it was not intended to replicate the position under the latter under which the resources of the receiving authority came to be considered (880g-881g).  He drew support for this view also from the funding regime applicable to special schools (881j); the territorial basis of a local authority’s responsibility for children who are “in their area” under section 321(3); the terms of the Code of Practice (882 a-c) and considerations of practicality (882e).  He also dealt with a number of other points that had been raised, at 882d, f and h.  None of the points alluded to in this paragraph were said to concern, or in my view in any way did concern, section 9.

 

28. It is thus that I come to the paragraph which lies at the heart of this case.  I find it, with respect, difficult to interpret, which is why I have set out at some length its context within the Harrow litigation. Lord Slynn observed:

 

“I do not consider that section 9 of the Act means that parental preference is to prevail unless it involves unreasonable public expenditure. In dealing with special schools, the authority must also observe the specific provisions of paragraph 3(3) of Schedule 27. This does not mean that the parent loses the right to express a preference. A preference may be expressed but it is subject to the qualifications set out in para 3(3), one of which is the efficient use of resources – in my opinion the responsible local education authority’s resources. It may be as a result that a child seeking to go to a special school out of his own local education authority's area may have more difficulty in doing so than a child seeking to go to another school. But that is what, in my view, Parliament has clearly provided.”

 

29. In analysing the paragraph quoted above, it is necessary as a preliminary to record that when Lord Slynn referred to “special schools” he may have been intending to refer to the education of children with a statement of special educational needs seeking a place at a maintained school, for it is that which is the correct statutory basis of the distinction which he drew in support of his view on para 3(3).  A child with a statement of special educational needs of course may or may not come to be educated in a special school (although in the case with which Lord Slynn was concerned it was two special schools that were in fact involved.)  In the following paragraph, I continue to use Lord Slynn’s language.

 

30. In “special school” cases, he observes that the authority must “also” observe the specific provisions of para 3(3).  This suggests that both section 9 and para 3(3) have to be complied with. However, “this does not mean that the parent loses the right to express a preference”.  The right which he is asserting will not in consequence be lost cannot in my view be para 3(3), for that is a right, albeit subject to conditions, being grafted on.  The right not being lost is the section 9 right to express a preference. “A preference [in my view, the section 9 preference] may be expressed but it is subject to the qualifications set out in para 3(3).”  In my view therefore, the natural reading of Lord Slynn’s remarks is that in a case falling within para 3(3), although section 9 continues to exist it has little or no independent function or operation distinct from the para 3(3) test.  This in essence is what Mr McManus QC, for Bexley, invites me to draw from this paragraph and I agree that it is the correct reading, though it is one which, with respect to Lord Slynn, in my view leaves it unclear how the status of being “subject to” is intended to operate.

 

31. However, was Lord Slynn in this passage deciding, as part of the ratio decidendi of the case, anything about whether section 9 had a role in a case in which sch 27, para 3(3) had defeated the parental preference, and if so, about the extent of the role?

 

32. At first glance, the reference to section 9 in the opening sentence reads oddly.  Lord Slynn had not previously been addressing section 9.  The authorities such as Watt and Cumings do not suggest that “parental preference is to prevail unless it involves unreasonable public expenditure” (see [14]-[16] above), so why mention it?  Those who had apparently held such a view, however, were Moses J (expressly quoted by Lord Slynn earlier) and perhaps also Otton LJ (see [21] above.)  I conclude that Lord Slynn was by this sentence seeking to counter the suggestion made in the lower courts in the course of the Harrow litigation.  He did not need to do so for the purposes of his argument about sch 27, para 3(3) and it may be that his concern was to avoid the perpetuation of a mistaken view and/or to explain why section 9, properly understood, did not have the effect of rendering otiose his consideration of sch 27, para 3(3).

 

33. Their Lordships were deciding (in the singular) “the point of law arising out of the earlier proceedings”. There is, as has been seen, no indication in the judgments of Moses J or the Court of Appeal that there was a point about the role, if any, of section 9.  The issue was about whose resources were relevant for para 3(3).  Lord Slynn did not (see [23] above) say that the role of section 9 was part of the issue before the House of Lords. I accept too, as argued by Mr Wolfe, that Lord Slynn did not need to decide the point for the purposes of his decision and did not indicate that he did need to.  If the House of Lords had been intending to resolve the question of the role of section 9, one might have expected to see analysis and argument covering such matters as the nature of the section 9 duty as understood by the courts, the significance (if any) of the difference in wording between “resources” in para 3, as interpreted by the House of Lords, and “public expenditure” in section 9 and so on, but this and other analysis on the point is absent. 

 

34. Mr McManus QC, who appeared in Harrow before all the courts which considered the case, sought to assure me that the section 9 point was before the courts.  However, I need to concern myself not with the arguments which might have been put, but with how the courts have chosen to express themselves in the formal, public expression of their views, as to which my view is set out above.

 

35. Mr McManus also asserts that the House of Lords would not have agreed to hear an appeal on the para 3 point, as being a point of law of general importance, if the outcome was vulnerable to being defeated by the operation of section 9.  As to that, if it were the case that section 9, correctly understood, would inevitably be liable to cut across the operation of para 3, then there might conceivably be a point. But, as seen above, that is not so.  Lord Slynn correctly negatived the mistaken view that section 9 might have such an effect.  Merely because there was a possibility that section 9, weak though its impact is, might lead to a different result in a minority of individual cases does not in any way detract from the usefulness of giving guidance to those concerned with the operation of para 3 as to whose resources were relevant.

 

36. I therefore conclude that Mr Wolfe is correct in his submission that the quoted paragraph of Lord Slynn’s speech does not form part of the ratio of the case’

 

37. As to it being the resources of the placing authority that are relevant under sch 27, para 3, the Upper Tribunal is bound to follow Harrow (though Mr Wolfe reserves the point should the case progress sufficiently far). As to the role of section 9, however, the remarks are obiter and not binding on the Upper Tribunal.  Even as obiter dicta however, the remarks of a unanimous House of Lords clearly merit due respect and I return to them below, after consideration of the status and relevance of other authorities.

 

38. In C v Buckinghamshire County Council [1999] EWCA Civ 926; [1999] ELR 179, the local authority wanted a maintained school to be named, the parents an independent school. Thus the situation was not on all fours with the present case, as the parents in Buckinghamshire could not potentially benefit from the underpinning of their preference by sch 27, para 3.  Sedley LJ, with whom Thorpe and Stuart-Smith LJJ were in agreement, observed:

 

“The relevance of parental preference

 

Section 9 is on the face of it relevant to all statutory functions under the Act, including functions relating to children with special educational needs under Part IV. Mr. Oldham’s contention, however, is that Part IV provides a self-contained code which, when one examines it, gives parents much firmer rights than does section 9, making section 9 redundant in special educational needs cases.

 

Schedule 27 is carefully designed. Paragraph 3(3) makes it mandatory for the statement to name the preferred school unless it is unsuitable for the child or incompatible with the efficiency of the school or the efficient use of resources. As Laws J. observed, this is far stronger than anything conferred by section 9, which establishes no more than an obligation to have regard for a general principle of parental preference, qualified likewise by considerations of efficiency and expense. But the limitation spelt out by paragraph 3(1) is that the expressed preference for a child with special educational needs must be for a school in the state sector, whether mainstream or special. The question is whether this by necessary implication excludes the broader section 9 principle.

 

In my view it does not. Parents like Mr. and Mrs. C whose preference is for an independent special school, while they cannot specify it (with potentially compulsory consequences) under paragraph 3, are free to advance their preference as part of their representations under paragraph 4. If they do so, the local education authority - and so, in due course, the Tribunal - is required by paragraph 5 to take it into account before finally deciding the contents of the statement. This much Mr. Oldham accepts. The argument therefore shrinks to this little measure: does the authority consider the expressed preference for an independent special school in such circumstances without any statutory underpinning, or does it consider it in the light of section 9? I see nothing either in Part IV (which includes Schedule 27) or in section 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 section 9 is intended to remain in play…

…

In my judgment therefore Laws J. was correct in the conclusion which he reached on this issue. He said:

“In my view, even in a case where Schedule 27, paragraph 3 has no application because the parents’ preference is for an independent school, section 9 raises a relevant factor for the local education authority’s consideration in the performance of their duties under Part IV of the 1996 Act.”

 

He considered that the local education authority’s argument ignored

“a critical difference between section 9 and Schedule 27. The former requires the local education authority only to have regard to the principle of parental choice. But Schedule 27, paragraph 3 requires the local education authority to give effect to parental choice, subject, of   course, to the important qualifications there stated. The difference is very important. Schedule 27, paragraph 3 .... has teeth which section 9 lacks.”

It follows that the Tribunal, while it was right to hold that Schedule 27 “limits the issue of parental preference to maintained, grant-maintained or grant-maintained special schools”, was mistaken in concluding that   this cut down (the word they use is “qualified”) the operation of section 9.“

 

39. Accordingly, there is nothing intrinsic in the special educational needs regime to detract from the applicability of section 9; and it must be inferred from the existence of the sch 27 para 3 regime for state schools that section 9 carried on in the case of independent schools which were not the subject of the further legislation by Parliament.  Buckinghamshire accordingly does not provide binding authority for the present case which concerns whether and how section 9 might survive when Parliament has made, in the case of maintained schools, express provision to confer additional rights (or “teeth”), but the conditions attaching to them have not been met.

 

40. While Thorpe LJ in his concurring judgment was prepared to accept that “in a case where there appears to be parity of facilities, parental preference may be the decisive factor”, in my view his remarks are directed primarily to the importance of ascertaining the reasons behind a parental preference, as it is if they “rest on a sure foundation of accurate information and wise judgement” that they will carry more weight.  Even then, he does not suggest that parental preference will be the decisive factor, even where cost and other facilities appear equal.  These dicta accordingly do not materially assist with resolving the issue with which I am faced.

 

41. Another case which could in practice have virtually binding authority on me would be the decision of the three judge panel in Dudley MBC v JS [2011] UKUT 67 (AAC).  (For the precedential status of such decisions see Dorset Healthcare Foundation NHS Trust v MH [2009] UKUT 4(AAC).)  However it seems to me that Dudley did not address the main point that is in issue in the present case.  The three judge panel was concerned with when and how transport costs fell to be taken into account.  Certainly it assumed that sch 27, para 3(3), then section 9, would have to be applied sequentially and the costs of transport taken into account: see [41] and [42] of its decision. (Its reference in [36] of its decision to para 3(3) as the “primary” duty should in my view be understood in this light.) Only if the parents lost under those provisions was it necessary to consider whether the parental preference could be accommodated if the parents themselves were to meet the transport costs [43].  However, there is no discussion of whether Harrow reduces or eliminates the room for section 9 to operate, the central feature of the present case, and indeed Harrow is not mentioned in the Dudley decision at all. While O v Lewisham [2007] EWHC 2130; [2007] ELR 633, which to some extent discusses Harrow, is mentioned, this is insufficient to persuade me that the panel had Harrow firmly in mind, for reasons set out at [46] below.)  The decision is thus of very limited assistance to resolving the matters with which I am presently concerned.

 

42. The remaining authorities cited to me are decisions either of a single judge of the High Court or of the Upper Tribunal.  The correct approach to those is set out in Secretary of State for Justice v RB [2010] UKUT 454 (AAC):

 

“40. On the other hand, for the reasons given below, it seems to us equally clear that, where the Upper Tribunal is exercising a jurisdiction formerly exercised by the High Court, it need not regard itself as formally bound by decisions of the High Court. Subject to one qualification, we think the position should be the same as where the High Court is dealing with decisions of co-ordinate jurisdiction:

“that he will follow the decision of another judge of first instance, unless he is convinced that that judgment is wrong, as a matter of judicial comity; but he is not bound to follow the decision of a judge of equal jurisdiction” (see e.g. Huddersfield Police Authority v. Watson [1947] K.B. 842, 848, per Lord Goddard C.J.)

41. The one qualification that we would suggest to this formulation arises from the particular nature of the Upper Tribunal’s jurisdiction, in line with the statement of Lady Hale in AH (Sudan) v Secretary of State [2007] UKHL 49 para [30] (repeating comments she had made in the Court of Appeal in Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, [2002] 3 All ER 279). She emphasised the highly specialised character of some legislation before the tribunals, and the need for the higher courts to respect their expertise.  Consistently with that approach, where such specialised issues arise before the Upper Tribunal, it may in a proper case feel less inhibited in revisiting issues decided even at High Court level, if there is good reason to do so.”

 

43. Against that background, I turn to Lewisham. This case did concern two maintained schools. At the time of the case, there was still a distinction, now removed in legislation, between a “local education authority” and a “local authority”, albeit both functions might be, and in London were, performed by the same body corporate.  It was argued that the substantial cost to Lewisham LEA of placing O as his mother wished would in very large measure be offset by savings to Lewisham as local authority (exercising its social services functions) and that the resulting reduced cost differential was of an amount such that it was conceivable that applying the section 9 test might result in O’s mother’s choice prevailing.  Because it was accepted that Harrow provided binding authority that it was the resources of the placing LEA that were relevant, the savings on social services could not help O’s mother unless, notwithstanding that she was caught by the disqualifying factors in sch 27, para 3, she could rely on section 9.

 

44. Mr Nicol QC considered Buckinghamshire  and also similar dicta by Sedley LJ in Oxfordshire County Council v GB and others [2001] EWCA Civ 1358; [2002] ELR 8.  He reached the conclusion, as do I, that Buckinghamshire was not determinative of the point before him.  He considered a submission that if, as Sedley LJ had put it, para 3(3) “supersedes” or is “substituted for” section 9 where the parental preference is for a maintained school, there could be no scope for the section in such a case.  He concluded:

 

“15. Lord Justice Sedley emphasised the generality of the duty in s. 9. It was central to the decision of both cases that that general duty would continue to apply if the conditions of the more onerous obligation were not satisfied. In these two cases, paragraph 3(3) did not apply because the parents' choices were for schools in the independent sector, but in my view, the same principle would apply if the obligation in that paragraph did not apply for some other reason. The fact that there is no obligation to comply with the parents' wishes is not a sound reason for displacing the duty to have regard to them.

 

16. Accordingly, in my judgment s.9 does still apply even where the parents' preference is for a school in the maintained sector. Of course, that will be of little relevance or help to a parent in the Appellant's position if the term 'public expenditure' is no wider than 'resources'. This was the central issue between the parties in the present appeal   and I now turn to that question.”

 

45. Mr Nicol QC then dealt with that question (to which I return below), in the course of which he had to address Harrow.  This led him to raise in the course of argument why it was that the House of Lords did not canvass the alternative possibility of section 9 applying.  He, too, noted that on the facts the matter had moved on between the Court of Appeal and the House of Lords.  Whether that was in fact the reason why the point was not canvassed I am not so sure, given that it does not appear in the judgments at first instance or the Court of Appeal either, but the fact remains that it appears that it was not.

 

46. However, perhaps because of the way in which the point arose in Lewisham, the judgment does not contain any analysis of the paragraph of Lord Slynn’s speech in Harrow with which I have had to deal.  (I interpolate that it is for this reason that I am not prepared to assume that the three judge panel in Dudley had Harrow before them or were otherwise fully aware of the issues raised by it, merely because they referred to the Lewisham case.)

 

47. Section 9 is not a strong provision.  The duty created is only one to “have regard”.  And what it is necessary to have regard to is not the views of parents, but (my emphasis)  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.”  If “public expenditure” in section 9 meant the same as “resources” in para 3, it would be more difficult to think of circumstances in which a case that had fallen foul of the conditions attaching to para 3 could be retrieved by reliance on section 9.  It is because following Lewisham the two terms have been declared to have different meanings that arguments such as those in the present case have emerged.

 

48. While early cases on section 76 of the 1944 Act did in fact concern the expenditure of local education authorities, I can find no indication that it was necessarily so limited.  Indeed, I agree with Mr Nicol QC that it would have been surprising if Parliament had intended that expenditure by public bodies other than the LEA did not likewise have to be taken into account when determining how section 9 fell to be applied to a parental preference.  I bear in mind that it was legislating in 1944 (i.e. in the later stages of World War II when no doubt public finances were under strain).  This impression is further strengthened by the fact that section 76 of the 1944 Act did, and section 9 of the 1996 Act does, apply not only to LEAs (now local authorities) but also to the Secretary of State, who would have every reason to be concerned with the impact on “public expenditure” in a broader sense.  If when what is now para 3 was first enacted, or when it was consolidated into the 1996 Act, provision could have been made to bring “public expenditure” and “resources” into accord if it had been considered appropriate, but it was not.

 

49. In S v Somerset County Council [2002] EWHC 1808 Admin, Sir Richard Tucker followed C v SENT [1997] ELR 390.  He did so based in part on the view espoused in that case that if Parliament had intended local [education] authorities to take into account the costs borne by health authorities he would have expected it to be set out clearly in the legislation.  I have respectfully reached a different view, for the reasons given at [48].  He also considered that section 322 of the 1996 Act, which creates a duty on certain other public bodies to help the local authority would be unnecessary if section 9 bore the wider construction.  I respectfully disagree on this point also.  Section 322 provides a qualified right to obtain assistance (including, it seems to me, the provision of financial information), but the extent of the local authority’s ability to obtain that assistance is an altogether different question from whether, if it can be provided (and parental preference is thereby met) but at a cost in public expenditure terms, it should be.  For these reasons and for the further reasons given by Mr Nicol QC in Lewisham and those given by HHJ Pearl (sitting as a judge of the Upper Tribunal) in K v LB Hillingdon [2011] UKUT 71 (AAC), I conclude that ”public expenditure” in section 9 is not restricted to the resources of the placing local authority (previously LEA).

 

50. Where then does this leave the interaction between para 3 and section 9?  Weak the section may be, and in a part of the 1996 Act concerned with very general duties, but it seems nonetheless to have been accepted that a failure to comply with the section (or its predecessor) was capable of being enforced, though there was clearly room for debate in Watt and Cumings as to the appropriate method of enforcement for different categories of breach.  If, as appears to have been the case (see [22] above), the intention was by the Education Act 1993 (which introduced the equivalent of para 3) to confer  rights which they had not previously enjoyed on the parents of children with statements of special educational need in respect of preferences for state education, there is no obvious reason why the enforceable right (albeit subject to conditions) for a preference to be given effect to should result in the weaker, but different, right for regard to be had being taken away.  Legislation often provides overlapping remedies.  For his part, Lord Slynn in Harrow does not suggest that the section 9 right was taken away, but that the two rights in some sense co-existed, although the intended interaction is not made very clear.

 

51. In my respectful opinion, the key to understanding what I regard as the obiter dicta of Lord Slynn is to be found in the gulf between the section 9 right, truly understood, and the para 3 right in terms of practical usefulness to parents in the great majority of cases.  It does not follow even in a situation where there is no adverse implication for “public expenditure”, understood broadly, that parental preference will necessarily prevail and one suspects that in practical terms it will often, indeed usually, be whether or not a right can be enforced under para 3 that will be determinative in cases where a place in a maintained school is sought.  Where Lord Slynn observes:

 

“This does not mean that the parent loses the right to express a preference. A preference may be expressed but it is subject to the qualifications set out in para 3(3), one of which is the efficient use of resources – in my opinion the responsible local education authority’s resources”

 

I take it as a recognition of the practicalities, in the light of the weakness of section 9, a matter which was in the forefront of his mind, he having corrected a mistaken view in the courts below by the first sentence of the paragraph.

 

52. I also respectfully consider that where in Buckinghamshire  Sedley LJ speaks, also obiter, of para 3 “superseding” or being “substituted for” section 9, that too was a reflection of the more onerous nature of the duty created by para 3. I reach this conclusion as, like Mr Nicol QC, I consider that in his decision Sedley LJ afforded a high degree of primacy to the universality of the section 9 obligation.

 

53. Mr Wolfe further argues that Bexley’s interpretation would mean that “public expenditure” changes its meaning according to whether a case is one in which para 3(3) is, or is not, additionally in play.  I do not find it necessary to address this, and he does not need it in order to succeed.

 

54. It follows that I respectfully agree with the conclusions of Mr Nicol QC at para 16 of his judgment that section 9 does still apply even where the parents' preference is for a school in the maintained sector.  He reached this conclusion in the face of an argument from Counsel that para 3(3) meant there was no scope for section 9 and it is implicit in his conclusion that, as section 9 is a separate, distinct test, it might (not that it would) yield a different result from that produced by para 3(3).

 

55. In R(Hampshire CC) v R and SENDIST [2009] EWHC 626; [2009] ELR 371 the court was concerned not with the resources of the LEA but with whether the parental preference fell foul of the condition in para 3 that it should not be incompatible with the provision of education to others.  So far as the question of the interaction with section 9 is concerned, there is no distinction between the two limbs of para 3(3)(b).  Stadlen J, in remitting the case, observed as follows:

 

“59 If they do not conclude that J's attendance would be incompatible with the provision of efficient education for the children, that is the end of the matter and they then are under an obligation under paragraph 3 to direct the Council to specify X School in J's statement. If, on the other hand, they find that his attendance would be incompatible with the provision of efficient education for the children with whom J would be educated, then they must go on to consider their discretion under section 324 of the Act. Section 324(4) requires them to specify the name of any school or institution which they consider would be appropriate for J, and should be specified in the statement. That, in my judgment, involves an exercise of discretion and it is one in which they are entitled, and indeed bound, to take into account and balance all relevant factors.

 

60 One of the matters that they will have to take into account in addressing their discretion under section 324(4) is what, if any, impact section 9 of the Act has? That exercise will involve their considering whether educating J in accordance with the wishes of his mother, that is to say at X, would be compatible with the provision of efficient instruction and training.“

 

This decision is thus entirely consistent with the decision in Lewisham, although I accept that the judgment does not address Harrow at all.  However, for the reasons above, I conclude that neither Lewisham nor Hampshirew was, as Mr McManus submits, wrongly decided.

 

56. It follows that, subject to questions of materiality, the First-tier Tribunal erred in law in considering that it was bound by Harrow not to apply a section 9 test (or to apply one the operation of which was co-extensive with the operation of para 3.)

 

57. The tribunal ought, then, to have carried out the exercise which section 9 requires.  Here the tribunal found that was no additional public expenditure in [V] attending the [B school].  When it comes to the application of section 9, the requirement for compatibility with the avoidance of unreasonable public expenditure does not bite, for, on the understanding of “public expenditure” in Lewisham and in this decision, there is none which additionally attaches to the parental preference, whether unreasonable or otherwise.  There is no suggestion in this case that to place V in either school would be incompatible “with the provision of efficient instruction or training”, so that is likewise a non-issue.

 

58. So it comes down to what are the implications of complying with the section 9 duty, without any implications resulting from the qualifications imposed by the wording beginning “so far”, when the local authority is performing its duty of naming a school under section 324(4).  It is not in dispute that the same duties would apply to the First-tier Tribunal where it had to decide the question on an appeal (and see e.g. Hampshire at [19]) and I can see no reason to conclude that they would not also apply to the Upper Tribunal, were it to be re-making the decision under section 12(2)(b)(ii) of the Tribunals, Courts and Enforcement Act 2007.

 

59. That in turn takes one back to the authorities on section 9.  It follows from the observations of  Denning and Parker LJJ in Watt, quoted in [14] and [15] above, both that a local authority may have regard to other matters besides the “general principle” that is the subject of section 9 and that they may make exceptions in individual cases.  Obiter those observations may have been, but they respectfully seem to me to be plainly correct.

 

60. There is thus a rather broad discretionary exercise to be undertaken, to which the preference of V’s mother (and, in particular, the reasons for that preference: see Sedley LJ in Buckinghamshire) will be material.  There will be other considerations also.  Given the breadth of the discretion it is not possible to say that the tribunal’s error was not material.  Mr McManus QC has valiantly sought to persuade me (although it was not Bexley’s original written case in response to the appeal) that, if I were to allow the appeal, there is sufficient to enable me to substitute a decision myself.  I disagree. He directs me to a passage in the original tribunal’s decision where the tribunal concluded there was no material benefit to V in placing her at school B.  However, that decision was set aside as part of the review process: see [7] above.  He then seeks to argue that in the decision now under appeal the tribunal, by indicating that “we remain firmly of the view that [school A] can meet [V’s] needs” must be taken to have adopted its earlier findings that there was no material benefit to V in sending her to school B. However, that is not what they are saying: their observation relied upon is confined to the adequacy of school A, not the relative merits of school A and school B.  While, as noted in [4] above, the tribunal does say that “as we set out below we see little, if any, educational benefit of placing [V] in [school B],” the primary findings on which that conclusion is based (and the reasoning behind it) is not set out as the tribunal had apparently intended.  In these circumstances I neither consider it appropriate to rely on the existing findings of the First-tier Tribunal to substitute a decision myself nor to take on the role of the specialist members of the tribunal in assessing educational considerations in order to make further findings.  The gap in the tribunal’s findings and reasoning in the respect identified will have to be addressed on the rehearing.

 

61. I do however, if the case is not to be liable to come before the Upper Tribunal a second time, with additional costs to the parties and possible detriment to V, need to rule on an issue canvassed in argument, namely whether, notwithstanding that there is no additional “public expenditure”, unreasonable or otherwise, involved, the additional cost which there will be to Bexley (as to which there has been no challenge before me) is nonetheless still capable of constituting a material consideration.

 

62. In my opinion, it is.  The duty under section 324 is imposed on an individual local authority, not the public sector generally.  Each local authority is under a legislative regime requiring annual budgeting and may be subject to external capping of the amount it can raise in respect of council tax.  Local authorities have been said to owe a fiduciary duty towards local taxpayers.  These are matters which have to inform any decision on a local authority’s part which involves the expenditure of money.  If it had been the legislative intention to exclude consideration of such matters, I would have expected to see it expressly stated.  I do not think it can be inferred from the mere enactment of para 3, or from the fact that it and section 9 impose, as I and others have held, cumulative tests.  I acknowledge that my view may mean that section 9 adds little in some cases.  But that in my judgement is a consequence of the weak wording of section 9.  Section 9 must be properly applied as it stands to the exercise of the section 324 duty, but that does not exclude consideration of the financial impact on Bexley or any other relevant consideration. The tribunal’s findings do not suggest that there is any way by which Bexley could obtain relief from the £25,000 odd that it would be paying out annually and Mr Wolfe does not suggest otherwise.

 

 

 

CG Ward

Judge of the Upper Tribunal

1 June 2011