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Upper Tribunal (Administrative Appeals Chamber)
You are here: BAILII >> Databases >> Upper Tribunal (Administrative Appeals Chamber) >> Dudley Metropolitan Borough Council v JS [2011] UKUT 67 (AAC) (11 February 2011)
URL: http://www.bailii.org/uk/cases/UKUT/AAC/2011/67.html
Cite as: [2011] UKUT 67 (AAC)
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ADMINISTRATIVE APPEALS CHAMBER
Before: His Honour Judge David Pearl
Judge J Mesher
Judge S M Lane
Attendances:
For the Appellant: Mr J Auburn of Counsel
For the Respondent Mr R Holland of Counsel
Decision:
Dudley Metropolitan Borough Council’s appeal to the Upper Tribunal is dismissed. The decision of the First-tier Tribunal dated 19 November 2009 did not involve an error on a point of law, for the reasons given below, and accordingly stands.
REASONS FOR DECISION
Introduction
1. This case concerns a young boy (J) who at the date of the decision of the First-tier Tribunal on 19th November 2009 was 4 years of age. He has a diagnosis of autism. The First-tier Tribunal states that although formal testing has not been possible, it is thought that J has moderate learning difficulties, and speech and language impairment independent of his autism.
2. The Dudley Metropolitan Borough Council (LA) gave J a Statement of Special Educational Needs (SEN) dated 7th April 2009 in which it states at Part 4 that J’s needs can be met at Halesbury School, the nearest appropriate school to J’s home, but that in accordance with parental preference, J can attend another school, The Brier School (where he had already started in the reception class), but on the specific condition that the parents arrange, and if necessary pay for, his transport to and from The Brier School. Both schools are LA maintained special schools.
3. The parents (Mr and Mrs S) appealed against the contents of the Statement, as they were entitled to do, by virtue of s 326(1A)(b) Education Act 1996.
4. The parents disagreed with the view of the LA that Halesbury could meet J’s needs, and requested the tribunal solely to name The Brier School. It was common ground before the First-tier Tribunal that were The Brier School solely to be named in Part 4, then the LA would be responsible for J’s transport to and from the school, in accordance with the Education Act 1996. However, the LA argued that The Brier School should not be named, because it was not J’s nearest appropriate school.
5. The difference in the distances from the two schools and the parents’ home is not great. The First-tier Tribunal states that Halesbury is 1.1 miles closer to the parents’ home, thus the additional cost of transport to The Brier School, if the LA were responsible for it, is very small. The tribunal appears to have accepted that it would be between £195 per year (for shared transport) and £312 (for individual transport). It did not comment on the LA’s view that J could be reasonably expected to walk to either school, so that it would be under no obligation to arrange travel in any event. That is a view that the LA has not subsequently maintained.
6. The First-tier Tribunal decided, having considered all of the detailed evidence presented to it, that both schools could meet J’s needs, and to that extent both were appropriate placements.
7. Parental preference was for The Brier School, and the only barrier to acceding to parental preference, said the First-tier Tribunal, was the cost of transport. The tribunal concluded that the Education Act goes further than to ask for a simple cost comparison, and that it “would be reasonable in our view to take into account other circumstances which impinge on the issues of parental preference and efficiency of the use of resources.” Two factors were specifically referred to by the tribunal.
8. The first factor was that Mrs S is unable to drive for medical reasons. The second was that J already went to The Brier School and there was an established communication peer group. It was concluded that therefore, given the very small difference in the cost of transport, J’s attendance at The Brier School would not constitute an inefficient use of resources.
9. For those reasons, the appeal by Mr and Mrs S was allowed, and the tribunal directed that The Brier School alone should be named in Part 4 of the Statement.
10. The LA sought permission to appeal “on the grounds that the decision of the First-tier Tribunal, in making a decision in relation to the provision of free transport, exceeded its powers and strayed into matters over which it had no jurisdiction.”
11. The application for permission to appeal came before Judge Angela Bowen, who was the Chair of the panel that had determined the case. Judge Bowen granted permission to appeal on the grounds that it was at least arguable that there was a conflict of authority (between the decision of Upper Tribunal Judge Ward in MH v Nottinghamshire County Council [2009] UKUT 178 (AAC) and the decision of Gibbs J in Essex County Council v SENDIST [2006] EWHC 1105 (Admin), [2006] ELR 452) and that “the matter should properly be resolved at a judicial level that permits a precedent to be established.”
12 Accordingly, the matter came before the Administrative Appeals Chamber of the Upper Tribunal sitting as a three member judicial panel as directed by Upper Tribunal Judge Rowland by Order dated 15th April 2010. We heard submissions on 30th November 2010. We were told by Counsel that the LA had in fact complied with the decision of the First-tier Tribunal, and that it remained the intention of the LA that J should continue to attend The Brier School. A letter from the LA dated 16th November 2010 states that the LA would continue to provide free transport for J to attend the school of preference, The Brier School, irrespective of the result of the appeal. The appeal therefore is academic in so far as the facts of this case are concerned, but we decided that the issues raised in this appeal were of general importance, and that it would be appropriate for the Upper Tribunal to hear submissions and to issue a finding on the submissions. We agree with the letter from the LA that the issue is one which affects local authorities and parents generally.
13. We explained to the parties that as neither party would be prejudiced by awaiting a decision in this case, we would reflect on the submissions that had been presented to us, and issue our reasoned judgment as soon as we were able so to do.
Grounds of appeal
14. The LA submits that the First-tier Tribunal erred in law, and it cites in support the decision in MH v Nottinghamshire County Council. In that case, Judge Ward considered the interaction between the SEN provisions contained in Part IV of the Education Act 1996 and those relating to school transport in Part IX. Part 4 of the Statement in that case said:
“The LA believes that L’s needs could be met at her local maintained school (Ash Lea School), therefore L will attend the LA 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.”
15. The parents in that case appealed, and the First-tier Tribunal concluded that both schools could clearly meet L’s needs and thus the issue turned on parental preference. It concluded that funding transport for L to attend Foxwood would not be an efficient use of the LA’s resources, and dismissed the appeal. On the appeal to the Upper Tribunal, Judge Ward held that a First-tier Tribunal does not have jurisdiction “as such to order that transport be provided.” He decided that the tribunal, having decided that Ash Lea was suitable, should simply have stopped there and that, by proceeding to rule on the relative transport costs, the tribunal was straying beyond its jurisdiction and thereby was in error of law. Judge Ward said in paragraph 17 that:
“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 parental preference, a comparison of costs, including transport, would have been necessary, but it was not.”
16. He set aside the decision of the First-tier Tribunal and substituted the following in Part 4 of the Statement:
“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.”
17. The submission by Mr Auburn on behalf of the LA in this case, as it had been in the Nottinghamshire case, is that once a tribunal has found that both of the schools can meet needs, there is no longer a jurisdiction to consider an efficient use of resources. Such a consideration by the tribunal is only appropriate where there is an issue of potentially overriding parental preference. It was submitted by Mr Auburn that the only lawful result of the tribunal’s finding that the LA preferred school met needs would have been to dismiss the Part 4 appeal as the existing wording of Part 4 was correct.
18. The LA therefore sought a decision in this case to allow the appeal and to substitute the following in Part 4 of the Statement:
“Both Halesbury and The Brier School are appropriate for J’s needs. J’s parents have expressed a preference for J to attend The Brier School, to which the LA gives effect. J is to attend The Brier School. The Brier School is further from J’s home than Halesbury, and it has been determined by the LA, applying Part IX of the Education Act 1996, that J’s parents are responsible for his transport to and from The Brier School.”
19 When refusing to review the decision and refusing the application for permission to appeal, Tribunal Judge Bowen stated that the law permits transport costs to be taken into consideration in deciding whether naming one particular school or another might constitute an inefficient use of the LA’s resources under Schedule 27 to the Education Act 1996, or unreasonable public expenditure under s 9. She said that the Tribunal must balance the statutory weight of parental preference against the extra cost of that option in deciding whether the extra cost is in fact an inefficient use of resources, relying in particular on the Essex County Council case.
20. In that case, it was argued by the LA that the extra costs of taking the child to the school of parental preference constituted an inefficient use of resources. Both the school of parental preference and the LA’s named school were deemed appropriate schools. Gibbs J emphasised the importance that Parliament attached to the expression “parental wishes”, and that the question requiring an answer was ‘will the costs be so high as to be incompatible with the efficient use of the LA’s resources?’ He said that it would be a matter of fact and degree in each case. The Judge, on the appeal, concluded that the tribunal was entitled to find that the extra expenditure on transport to the parent’s preferred school was in no way disproportionate when balanced against the effect of refusing the parent’s reasonable wishes.
Statutory provisions
21. The statutory provisions in the Education Act 1996 that we are required to consider, as in force at the date of the tribunal’s decision (19 November 2009), are as follows. There has subsequently been a significant amendment with effect from 5 May 2010, substituting references to a “local authority” for references to local education authorities (Local Education Authorities and Children’s Services (Integration of Functions) Order 2010 (SI 2010/1158)). Section 9 stated:
Education in accordance with parental wishes
Pupils to be educated in accordance with parents' wishes
In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State, local education authorities and the funding 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.
22. Section 324 deals with Statements of Special Educational Needs. It was as follows:
(1) If, in the light of an assessment under section 323 of any child’s educational needs and of any representations made by the child’s parent in pursuance of Schedule 27, it is necessary for the local education authority to determine the special educational provision which any learning difficulty he may have calls for, the authority shall make and maintain a statement of his special educational needs.
(2) The statement shall be in such form and contain such information as may be prescribed.
(3) In particular, the statement shall–
(a) give details of the authority´s assessment of the child´s special educational needs, and
(b) specify the special educational provision to be made for the purpose of meeting those needs, including the particulars required by subsection (4).
(4) The statement shall–
(a) specify the type of school or other institution which the local education 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) specify any provision for the child for which they make arrangements under section 319 and which they consider should be specified in the statement.
(5) Where a local education authority maintain a statement under this section, then–
(a) unless the child´s parent has made suitable arrangements, the authority–
(i) shall arrange that the special educational provision specified in the statement is made for the child, and
(ii) may arrange that any non-educational provision specified in the statement is made for him in such manner as they consider appropriate, and
(b) if the name of a maintained, grant-maintained or grant-maintained special school is specified in the statement, the governing body of the school shall admit the child to the school.
(6) Subsection (5)(b) does not affect any power to exclude from a school a pupil who is already a registered pupil there.
(7) Schedule 27 has effect in relation to the making and maintenance of statements under this section.
23. Schedule 27 sets out the provisions relating to the making and maintenance of statements under section 324. We need only set out paragraph 3:
Choice of school
3 (1) Every local education authority shall make arrangements for enabling a parent on whom a copy of a proposed statement has been served under paragraph 2 to express a preference as to the maintained, grant-maintained or grant-maintained special school at which he wishes education to be provided for his child and to give reasons for his preference.
(2) Any such preference must be expressed or made within the period of 15 days beginning–
(a) with the date on which the written notice mentioned in paragraph 2(b) was served on the parent, or
(b) if a meeting has (or meetings have) been arranged under paragraph 4(1)(b) or (2), with the date fixed for that meeting (or the last of those meetings).
(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.
(4) A local education authority shall, before specifying the name of any maintained, grant-maintained or grant-maintained special school in a statement, consult the governing body of the school and, if the school is maintained by another local education authority, that authority.
24. Section 508B (travel arrangements for eligible children) was inserted into the Education Act 1996 by the Education and Inspections Act 2006.
LEAs in England: travel arrangements for eligible children
(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) in the case of a child who is an eligible child by virtue of falling within any of paragraphs 3, 5, 7, 10 and 13 of Schedule 35B, the place other than a school, where the child is receiving education by virtue of arrangements made in pursuance of section 19(1), referred to in the paragraph in question.
(11) Regulations may modify subsections (1) and (2) to provide for their application in cases where there is more than one relevant educational establishment in relation to a child.
25. The relevant definitions of “eligible child” in Schedule 35B appear to be (depending on how far away the schools are from the parents’ home) in paragraphs 4 and 6:
4. 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 within walking distance of his home,
(b) 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, and
(c) having regard to the nature of the routes which he could reasonably be expected to take, he cannot reasonably be expected to walk to the school mentioned in paragraph (a).
The definition in paragraph 6 applies where the qualifying school is not within walking distance and contains the same condition as in paragraph 4(b), in paragraph 6(c), and omits the condition in paragraph 4(c).
Submissions
26. It is submitted by the LA in this appeal that transport is a non-educational provision and that therefore the First-tier Tribunal has no jurisdiction to determine entitlement to it. Eligibility to free transport, so it is submitted, is the subject of a separate statutory regime in part IX of the Education Act 1996 and in particular s 508B. It is argued that LAs are obliged only to provide free transport for SEN children to their nearest suitable school, and not to a further away school of parental preference. The Appellant in effect is stating that the tribunal fell into error in seeking to determine compatibility with the efficient use of resources, and that that is relevant only in a case where the LA seeks to override parental preference (as in the Essex case). In this case, the LA has given effect to parental preference and named it in the Statement. It is submitted that there was no basis for the tribunal to consider the efficient use of resources and that the tribunal’s decision as regards eligibility to free school transport was beyond its jurisdiction.
27. In submissions before us, Mr Auburn developed his primary submission that disputes as to eligibility for free school transport are determined by LAs with no right of appeal to the First-tier Tribunal, and in consequence are subject to judicial review (Part IX, s 508B and Schedule 35B Education Act 1996). Mr Auburn specifically urged on us that “transport” is not educational provision, and s 324(5)(a)(i) imposes a duty only to arrange for educational provision. He submitted that the cornerstone of the statutory regime for determining eligibility for free transport is “the nearest suitable school principle.”
28. Mr Auburn submitted that there is no conflict between the Nottinghamshire case and the Essex case. He submitted that transport costs (as an item of non-educational need) are indeed taken into account, but only when deciding whether to override parental preference as to placement due to incompatibility with the efficient use of resources. It is argued that in the present case, as in Nottinghamshire, there is no such issue, for the simple reason that the LAs were not seeking to override parental preference as to placement.
29. Mr Holland, for the parents, submitted that while the LA may name a nearer school, there is nothing to prohibit it from naming a school that is further away. He submitted that the LA should balance any additional benefits to a child in respect of any extra cost, and that a costs difference may not in some cases be incompatible with the efficient use of resources. It was urged on us that transport must plainly be a relevant factor when considering the efficient use of resources and the relevant merits of competing schools.
Conclusions
30. There are a number of important principles that need to be set out at the outset, in advance of our consideration of the above submissions in paragraph 46 below.
31. First, there appears to be no reason in general why more than one school should not be specified in a Statement if, in the view of the LA (or of the tribunal on appeal) more than one school would equally answer the child’s needs. This is expressly stated as a correct proposition of law by Sedley J in R v London Borough of Havering ex p K [1998] ELR 402, at 404B. That general proposition is supported by the decision of the Court of Appeal in R (on the application of M) v Sutton London Borough Council [2007] EWCA Civ 1205, where indeed it was held that a LA was required to name an alternative school or type of school which it considered suitable for the needs of the child if specifying the parents’ preferred school in Part 4 of a Statement only on condition that the parents were responsible for transport there. On the facts of the present case, the First-tier Tribunal accepted as a matter of fact that both schools were suitable.
32. Secondly, and again as set out clearly by Sedley J in the Havering case, transport is a non-educational provision for the purposes of s 324(5)(a)(ii) Education Act 1996. This principle has been recently reaffirmed in MM & DM v London Borough of Harrow [2010] UKUT 395 (AAC).
33. Thirdly, s.324(5)(a)(i) requires a LA to arrange that the special educational provision specified in a Statement, necessarily including the specification of a school or schools or a type of school to be attended, is made for the child. Thus, if only one school is specified in Part 4 of a Statement, the LA must make arrangements for the child to attend that school and, if it is a maintained school, the governing body must admit the child (s.324(5)(b)).
34. In our judgment, if that is the case, a LA would at the least be in very great difficulty in maintaining that a duty that would otherwise arise for it to make travel arrangements to and from that school under s.508B is excluded because the definition of “eligible child” is not met under the “nearest suitable school” principle. For the test under that definition in Schedule 35B is not simply that a closer school exists that is suitable for the child’s special educational needs. The test is whether suitable arrangements have been made by the LA (or will be made, if the statement is looking to the future) for the registration of the child at a qualifying school nearer to home. If the LA is required by s.324(5)(a)(i) to arrange that the child attends the parents’ preferred school because it is the only school specified in the Statement, how can it possibly make any arrangements for the child to be registered at another, nearer, school, even if that school could provide suitably for the child’s special educational needs? That in our judgment is the essential point that Sedley J was making in the Havering case at 408D when he said that it was not open to a LA simply in effect to review the Statement in making decisions about, for instance, school attendance or paying for transport.
35. It is therefore crucial to identify the circumstances when a LA, or a tribunal on appeal, is required or empowered to specify only one school in Part 4 of a Statement of SEN and the circumstances when it is required or empowered to name more than one school or an additional type of school, whether on a conditional basis or not. We discuss this issue in the particular context of comparisons of transport costs to the schools concerned and without at this stage any consideration of the existing case-law.
36. We start from the position that Schedule 27 para (3)(3) Education Act 1996 is the primary duty in cases like the present where two maintained schools are in issue and that it takes priority over the more general duty as set out in s 9 Education Act 1996 unless the duty in Schedule 27 para 3(3) does not arise, in which case the duty to have regard to parental preference may come into play. (Section 9 will of course be the primary duty in cases where the parents’ preferred school is non-maintained, falling completely outside Schedule 27, para 3(3)). Thus, in a para 3(3) case the LA must name the parents’ choice of school in Part 4 of the Statement in circumstances where the LA cannot make out one of the exceptions to this duty in para 3(3)(a) or (b). Para 3(3) does not state in so many words that the LA (or the tribunal on appeal) must in those circumstances specify that school alone. Nor does it in so many words state that more than one school can be specified, although where the parents have expressed a preference for one maintained school, the context could be argued to point against such a conclusion if neither of the exceptions is made out. The general statement of Sedley J in his ex tempore judgment in Havering (see paragraph 32 above) was not made in the context of the para 3(3) duty and is not to be taken as any authority on the effect of that specific duty.
37. It is helpful then to approach the various factual permutations that could be faced by a tribunal on an appeal in a para 3(3) case in stages. For simplicity, we restrict the discussion below to circumstances where the only potential impact on the efficient use of resources that needs to be considered is in the form of transport costs.
38. First, if the tribunal concludes that the nearer school or schools or type of school put forward by the LA are unsuitable for the child and his special educational needs, then there is no dispute as to the consequence. The parents’ preferred school alone must then be specified in Part 4 of the statement. The child concerned will accordingly be an eligible child in relation to the school and the LA will be responsible for transport costs if the other conditions under s.508B are satisfied.
39. Outside that situation, where, as in the present case, a tribunal finds all the schools put forward to be suitable, comparative travel costs must be considered if that issue has been put into play by the LA. Here, travel costs plainly were put in play by the form of the Statement under appeal.
40. In our view, the first stage must be to consider the additional travel costs that would be incurred if the parents’ preferred school were to be specified alone in Part 4 of the Statement and the LA accordingly came under a duty under s. 508B to fund travel arrangements. If the tribunal concludes either that the additional cost is not incompatible with the efficient use of resources at all or that any prima facie incompatibility is outweighed by the educational and other advantages to the child of attending the parents’ preferred school (we do not need to consider at this point exactly how or at what point balancing exercises are to be carried out), then in our judgment the consequence must be that only the parents’ preferred school is to be specified in Part 4 of the Statement. Even if the tribunal considers that a nearer school or type of school put forward by the LA is educationally suitable for the child, it should not in these circumstances be specified in the Statement.
41. If, when the parents have “won” on para 3(3), the LA were allowed to put a condition on the child’s attendance at the parents’ preferred school, such as that the parents be responsible for transport, with the nearer school specified if that condition is not met, that would undermine the primacy given by Schedule 27, para 3(3) to the parents’ expressed preference and would be inconsistent with the conclusion that it would not be incompatible with the efficient use of resources for the LA to meet the transport costs.
42. If the tribunal concludes that there would be an incompatibility with the efficient use of resources for the LA to meet the additional transport costs to the parent’s preferred school, then there is no requirement to specify the latter. The tribunal should then consider whether that school should nonetheless be specified taking account of the duty to have regard to parental preference under s 9. If the conclusion is to that effect after taking into account transport costs to the parents’ preferred school as in paragraph 40 above (and applying the potentially broader calculus of “unreasonable public expenditure”: see the illuminating judgment of Mr Andrew Nicol QC, as he then was, in O v London Borough of Lewisham and SENDIST [2007] EWHC 2130 (Admin)), then for the same reasons the parents’ preferred school alone should be named in Part 4 of the Statement.
43. If the parents’ preferred school has not been named at the first stage, under either statutory basis, the tribunal should go on to consider a further stage of enquiry, by asking whether, if the LA did not have to meet the additional transport costs, the parental preference could to that extent be accommodated without incompatibility with the efficient use of resources. If so, then there is the authority of the Court of Appeal in Sutton, binding on the Upper Tribunal, that the parents’ preferred school can be specified in Part 4 of the Statement on the condition that the parents take responsibility for the costs of transport to and from the school. Moore-Bick LJ said there that:
“Paragraph 8:87 of the [Special Educational Needs] Code of Practice [issued by the Secretary of State for Education and Skills] proceeds on the assumption that it is lawful for a local authority to name a school preferred by the child’s parents on condition that they agree to meet all or part of the transport costs and in my view a conditional nomination of that kind is consistent with the statutory provisions, provided that the authority also complies with its obligation to specify the type of school or, if it considers it appropriate to do so, the specific school, which it considers to be suitable for the child.”
In our judgment, that does not apply when a parental preference has primacy at the first stage of enquiry (paragraphs 39 to 42 above).
44. The LA followed the approach of the previous paragraph in the present case in the Statement of 7 April 2009. It was able to protect itself from a claim for transport costs to be met under s.508B, by virtue of the effect of s.324(5)(a)(i), by the additional specification of Halesbury. For that reason, recalling that the present discussion is limited to situations where the tribunal accepts that the nearer school is suitable for the child, in this category of case the tribunal must also ensure that that school is specified in Part 4 of the Statement. The Statement must be capable of standing alone as a complete and coherent statement of the child’s special educational needs and the educational provision that is to be provided. It is therefore not enough in such cases for the tribunal merely to record a finding about the suitability of the nearer school in its reasons for decision. We do not think that it matters whether in these circumstances the specification of the parents’ preferred school is to be regarded being made under Schedule 27, para 3(3), or under s.9.
45. In our judgment, apart from the authority of the Court of Appeal, specifying the parents’ preferred school subject to a condition that the parents are to be responsible for the transport costs is not an improper assertion of jurisdiction by the tribunal over the question of whether the LA is obliged to make transport arrangements under s.508B. But the tribunal must, to make the Statement a practical, realistic and helpful document, have regard to the statutory background to those obligations. To that end, we see nothing wrong in tribunals endorsing the setting out in Part 4 of the Statement of the LA’s view that it will not be responsible for the transport costs. That is not the tribunal purporting to make the decision about the LA’s obligation. It is merely a helpful setting out of the LA’s view.
46. Where does that leave the submissions that were made to us about whether the tribunal of 9 November 2009 had exceeded its jurisdiction and where does it leave the decisions of Gibbs J in the Essex case and of Judge Ward in the Nottinghamshire case?
47. We reject Mr Auburn’s submission for the LA that the First-tier Tribunal had no jurisdiction to consider the issue of the efficient use of resources (including transport costs) because the LA had already given effect to parental preference by specifying The Brier School in Part 4 of the Statement. That specification had not given full effect to parental preference, which was for The Brier School to be specified alone and unconditionally, without any reference in Part 4 of the Statement to the condition of the parents’ taking responsibility for transport costs or to Halesbury School in addition. Accordingly, the tribunal was not merely empowered but was obliged to consider whether the parents were entitled to the benefit of Schedule 27 para 3(3) (or of s 9) in the way set out in paragraphs 39 to 42 above. That required consideration of the efficient use of resources. There can be no doubt, quite apart from the existence of the many decisions proceeding on the same basis, that the expense of the transport costs that the LA would be statutorily obliged to meet if solely The Brier School were specified in Part 4 of the statement was a relevant part of that consideration.
48. Mr Auburn had relied on the Essex decision. He said that that was a case where the LA had been overriding parental preference and showed that that was the only situation in which consideration of efficient use of resources could arise.
49. The first part of that submission is of course correct. The case arose from the parent’s request under Education Act 1996, Schedule 27, para 8, for the name of the school currently specified in the Statement to be substituted by the name of another maintained school about 11 miles further away from her home. The ground was that severe personal difficulties suffered by the child at the currently named school were affecting her educational progress. The LA declined to make the substitution and argued to the tribunal that the child was appropriately placed at her existing school (although it was accepted that the other school was at least equally suitable for her) and that the transport costs of £4,615 per year (amended at the hearing to at least £5,130 per year) for her to attend the other school would be an inefficient use of resources. Schedule 27, para 8(2) required the request to be granted unless either of the two “defences” identical to those in paragraph 3(3) were established. The tribunal considered the somewhat conflicting evidence from the LA and concluded that the likely additional annual transport costs were between £2,000 and £4,000 and that this figure was not of a magnitude to make it incompatible with the efficient use of resources. Gibbs J dismissed the LA’s appeal to the High Court, holding that the tribunal had been entitled to evaluate the evidence as it did and then to judge that the additional transport costs were not disproportionate when balanced against the effect of refusing the parent’s reasonable wishes. It did not therefore have to go on to a second stage of a balancing exercise involving the assessment of the relative merits of the two schools and a broad range of relevant educational factors. In the course of his judgment, Gibbs J made a number of general remarks about the proper approach to the assessment of incompatibility with the efficient use of resources, with which we do not need to concern ourselves.
50. We can see nothing in his judgment to support the second part of Mr Auburn’s submission or to suggest that he was doing anything more than dealing with the case in front of him, where the efficient use of resources and the question of transport costs were plainly central to what the tribunal had to decide. We see no suggestion that those factors could not be relevant in cases that arose in some other way. It follows that there is no inconsistency between the Essex decision and our conclusions of law set out above.
51. In relation to the Nottinghamshire case, it follows from our rejection here of substantially the identical submission by Mr Auburn to that made and accepted by Judge Ward in that case, that the reasoning in the decision, and in particular the conclusion in paragraph 17 of the decision, should not now be followed. We note that in the Nottinghamshire case the parents were not represented, while we had the advantage of robust submissions from Mr Holland, as well as the more in-depth examination of the issues that is inevitably involved in a decision of a panel of three judges. We also note that the order substituted by Judge Ward in his case after setting aside the decision of the tribunal was entirely consistent with the approach set out in paragraphs 43 to 45 above. It left the substance of what had been confirmed by the tribunal in that case in place, but made it crystal-clear in the final sentence that there was merely a recording of the LA’s determination that the parents were responsible for L’s transport to and from Foxwood (or perhaps more accurately that it would not meet those costs), not any assertion of any jurisdiction over that issue by the First-tier or Upper Tribunal.
The application of the principles to the present case
52. We conclude that the First-tier Tribunal in the present case was entitled and obliged, having found that both Halesbury and The Brier Schools could appropriately meet J’s educational needs, to consider the incompatibility of his attendance at The Brier School, on the basis that the LA would be responsible for transport costs, with the efficient use of resources. The tribunal did that and concluded that given the very small difference in transport costs (at the most £312 per year), weighing the potential advantages to J of attending The Brier School against the relative costs it would not an inefficient use of resources for him to do so. It directed that only The Brier School should be named in Part 4 of the Statement. For the reasons given above that was the correct response to the conclusion on Schedule 27, para 3(3) and it was right not to specify Halesbury School even though that school had been found to be suitable for J. The inevitable consequence, as it seems to us for the reasons given in paragraph 33 above, is that the LA would have to make and pay for the transport arrangements to The Brier School, but the tribunal was rightly not directly concerned with that consequence and said nothing about it in its decision. Accordingly, there was no error of law in the substance of the tribunal’s decision.
53. The reasons given in the document signed on 19 November 2009 were brief. Nor was it entirely clear what weight the tribunal gave to the fact that J’s mother was unable to drive for medical reasons. The tribunal did not formally separate out its consideration of the issue of the efficient use of resources into the two stages recommended by Gibbs J in the Essex case or say clearly at what stage it was putting into the balance the advantages to J of attending the parents’ preferred school. However, given the nature of the case and the very small additional transport costs involved, in our judgment it was proper for the tribunal to take a slightly more impressionistic approach concentrating on the outcome. The LA could have been in no real doubt why the tribunal had decided the appeal against them. There was therefore no error of law on the ground of inadequacy of reasons. And, even if an inadequacy should have been found, we would have exercised the discretion contained in s.12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 not to set the tribunal’s decision aside, the relevant factors including in particular the LA’s undertaking in its letter of 16 November 2010 to provide and to continue to provide free transport for J to The Brier School regardless of the outcome of the present appeal.
54. Accordingly, the LA’s appeal to the Upper Tribunal is dismissed.
(Signed on original):
His Honour Judge David Pearl
Judge J Mesher
Judge S Lane
Judges of the Upper Tribunal