IN THE UPPER TRIBUNAL Case No  HS/4737/2014

ADMINISTRATIVE APPEALS CHAMBER

 

Before UPPER TRIBUNAL JUDGE WARD

 

Attendances:

 

For the Appellant: Mr John Friel, counsel

 

For the Respondent:  Mr Sean Bowers, solicitor

 

Decision:  Although it is the respondent who has substantially succeeded, on a purely technical level the appeal is allowed.  The decision of the First-tier Tribunal sitting at the Competition Appeal Tribunal London WC1 on 7 July 2014 under reference SE205/14/00003 involved the making of an error of law and is set aside. 

 

Acting under section 12 (2) of the Tribunals, Courts and Enforcement Act 2007 I substitute the decision which the tribunal ought to have given:

 

The West London Free School is to be specified in Part 4 of the statement.

 

REASONS FOR DECISION

 

1. This case concerns the education of B.  I will refer to the appellant as her parent as that is the language of the statute.

 

2. The case raises questions of the interaction between the provisions of the Education Act 1996 which relate to the integration of pupils with statements of SEN (sections 316 and 316A) and the parental preference provision of section 9 of the Act. 

 

3. B’s parent wanted her to attend (as a first choice) the Centre Academy (“the R Academy”). This is a specialist independent school.  It is neither a special school nor a maintained school, nor a mainstream school for the purposes of section 316 and 316A.  The authority’s first choice (and so the school named in the statement) was Wood Lane High School (“the S High School”), a maintained special school (and so not a mainstream school for the purposes of ss316/316A).

 

4. If the tribunal decided that the R Academy was not to be named, B’s parent’s wish was that B should attend the West London Free School (“the T Free School”)..  This is non-maintained and is within the limited category of independent schools (as defined by s.463) which can constitute a mainstream school for the purposes of ss316/316A.

 

5. It was common ground that, as between the R Academy (preferred by the parent) and the S High School, the balancing exercise required by section 9 needed to be carried out.  It was, to the disadvantage of a placement at the R Academy, which the tribunal concluded would result in unreasonable public expenditure.  No challenge is made to that result of that comparison exercise.

 

6. However, the question then arose as to the parties’ fall-back positions.  B’s parent had indicated her wish in that event for mainstream education for B and the authority, recognising the impact of ss316/316A, was and is content for B to attend the T Free School, as indeed she now does.  The tribunal however, decided that it had no jurisdiction to name that school.  It did not explain its reasons for that view.  It is common ground that in declining jurisdiction and in failing to give reasons for so doing, the tribunal erred in law. I explain briefly why below.

 

7. But, submits Mr Friel, that is not the end of the matter.  In short, he submits that applying s316 is done through the provision made in the statement under s324.  On the authorities, s324 confers a wide discretion to which, inter alia, the results of applying a s9 analysis are relevant and thus, before the T Free School could be named, a further s9 comparison had to be conducted, this time between the T Free School and the R Academy.  I turn to the relevant statutory provisions and then examine the authorities.  I refer to the legislation as it stood at the time.  Much of the ground is however now covered, in England, by the Children and Families Act 2014.

 

8. 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].”

 

9. 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 the parent 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.”

 

As R Academy is not a maintained school, this provision is not directly relevant in this case, but it is relevant to understanding some of the case law.  

 

10. What is relevant to parental preference more generally, including where, as here, the initial preference is for an independent school, is section 9 of the 1996 Act, which provides:

 

“9. 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 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.”

 

11. Before reaching ss316/316A, it is necessary to note s319:

 

“319.— Special educational provision otherwise than in schools.

 

(1) Where a local authority are satisfied that it would be inappropriate for—

(a) the special educational provision which a learning difficulty of a child in their area calls for, or

(b) any part of any such provision,

to be made in a school, they may arrange for the provision (or, as the case may be, for that part of it) to be made otherwise than in a school.

 

(2) Before making an arrangement under this section, a local authority shall consult the child's parent.”

 

12. Sections 316 and 316A provide:

 

“316 Duty to educate children with special educational needs in mainstream schools

 

(1) This section applies to a child with special educational needs who should be educated in a school.

 

(2) …

 

(3) If a statement is maintained under section 324 for the child, he must be educated in a mainstream school unless that is incompatible with–

(a) the wishes of his parent, or

(b) the provision of efficient education for other children.

 

(4) In this section and section 316A“mainstream school” means any school other than–

(a) a special school, or

(b) an independent school which is not–

(i) a city technology college,

(ii) a city college for the technology of the arts, or

(iii) an Academy.

 

316A Education otherwise than in mainstream schools

 

(1) Section 316 does not prevent a child from being educated in–

(a) an independent school which is not a mainstream school, or

(b) a school approved under section 342,

if the cost is met otherwise than by a local authority.

 

(2) …

 

(3) Section 316 does not affect the operation of–

(a) section 348, or

(b) paragraph 3 of Schedule 27.

 

(4) If a local authority decide–

(a) to make a statement for a child under section 324, but

(b) not to name in the statement the school for which a parent has expressed a preference under paragraph 3 of Schedule 27,

they shall, in making the statement, comply with section 316(3).

 

(5) – (11) …

 

13. Section 348 of the 1996 Act provides:

 

“348.— Provision of special education at non-maintained schools.

 

(1) This section applies where—

(a) special educational provision in respect of a child with special educational needs is made at a school which is not a maintained school, and

(b) either the name of the school is specified in a statement in respect of the child under section 324 or the local authority are satisfied—

(i) that his interests require the necessary special educational provision to be made for him at a school which is not a maintained school, and

(ii) that it is appropriate for the child to be provided with education at the particular school.

 

(2) Where this section applies, the local authority shall pay the whole of the fees payable in respect of the education provided for the child at the school, and if—

(a) board and lodging are provided for him at the school, and

(b) the authority are satisfied that the necessary special educational provision cannot be provided for him at the school unless the board and lodging are also provided,

the authority shall pay the whole of the fees payable in respect of the board and lodging.

 

(3) In this section “maintained school” means a school maintained by a local authority.”

 

I have not received argument on this section and I mention it merely in order to explain the reference in s316A(3)(a).

 

14. It is clear that the mechanism for giving effect to s316 where it applies is through the statement, and so through s324(4): s316A(4) makes this explicit. It is clearly intended to create a duty where it applies.

 

15. The sequence, it seems to me is as follows.  There may be a preliminary step in some cases of considering whether it is inappropriate for the child to be educated in school:  that is the gateway to making provision out of school (TM v LB Hounslow [2009] EWCA Civ 859; [2011] ELR 137).  Among the reasons for considering the question are firstly that there is little point in the local authority naming a school (at any rate as sole provision) if its view is that it is inappropriate for a child to be educated in school; and further, that s316 only applies “to a child with special educational needs who should be educated in a school”(s316(1)) and thus working out whether s319 bites is logically before one can later assess whether s316 is in play.

 

16. In a case to which sch 27, para 3 applies and the parental preference is not defeated by either of the express conditions in that provision, then the school of preference must be named by the authority.  In a case where a preference under sch 27 para 3 case has been expressed , it is only once a parent has failed under that section that one comes to consider s316:  (R (MH) v Special Educational Needs and Disability Tribunal and LB Hounslow [2004] EWCA Civ 770; [2004] ELR 424).

 

17. In a case to which sch 27 para 3 does not apply, in exercising the discretion which s324(4) confers on an authority with regard to naming a school, as with all its powers and duties under the Education Acts, section 9 must still be applied.  The result of such an exercise is a factor to which regard must be had (Hampshire CC v R and SENDIST [2009] EWHC 626 (Admin); [2009] ELR 371) but does not exclude other factors (Watt v Kesteven CC [1955] 1 QB 408 at 424.)  Section 9 does not create a qualified right to the school of preference as does sch 27 para 3 but that school requires to be addressed at this point, as part of the duty to comply with s9.

 

18. It was not in dispute before me that the tribunal erred in law in declining jurisdiction, in that the parent was entitled to express a fall-back preference, encompassing a wish for mainstream education.  CCC v LB Tower Hamlets (SEN) [2011] UKUT 393 (AAC) at [28] certainly appears to support the parties‘ position and I rule accordingly.

 

19. At that point, therefore, when the fallback preference had been triggered, a local authority wishing to persist with placement in a special school would not be able to say that placement in a mainstream school would be incompatible with the wishes of the parent for the purposes of s.316(3) (even though there would not have been such incompatibility earlier, when the parent’s preference had been for a non-mainstream school).  The fallback preference could be defeated if the authority could show that a mainstream placement would be incompatible with the provision of efficient education for other children, but that is not suggested to be the case here.  Therefore, given the fallback preference had been expressed and the acceptance of its validity, the local authority was bowing to the inevitable in agreeing to mainstream provision.

 

20. The key questions in this case are, having arrived at this point in the analysis, (a) whether section 9 has any further life and (b) if it does, how it falls to be applied.

 

21. Mr Bowers’ submission was initially that s9 is relevant at earlier stages, but not thereafter.  First, it requires to be applied to the original school preferred by the parent, R Academy, as it was, to the disadvantage of that preference.  Then, he says, s9 has to be applied to a comparison of the parent’s fallback (T Academy) and the authority’s preferred school (S High School), which would equally be to the disadvantage of the preference for T Academy.  Thereafter, that is said to be the end of the relevance of section 9.

 

22. I acknowledge that the Court of Appeal in MH said that it was necessary to apply sch 27 para 3 at the outset and that that provision has no further relevance when a s316 exercise is being undertaken. It would however be in my view an over-simplification to treat sch 27 para 3 (when a qualifying preference is expressed for a maintained school) and s9 (when the preference is for a non-maintained school) as direct equivalents and from that to argue that the relevance of s9, like that of sch 27 para 3, is confined to the front end of the logical process.  The former is a provision applicable within a defined procedure, which – subject to defined exemptions - cuts across other provisions so as to create rights:  cf. MH at [69]).  The latter merely sets out a principle to which a local authority is required to have regard, among other considerations.  It also is subject to defined exemptions but its field of application is far wider (the exercise of functions under the Education Acts) and it operates outside the ambit of a defined procedure.

 

23. At this point the thought process is still heading towards the ultimate naming of a school under s324(4). The field of enquiry has been moved on under the impact of s316 and the fallback preference expressed, but to the extent that questions of parental preference continue to arise, I can see no reason to conclude that just because s9 has already been applied to a logically prior situation, that is the end of the scope for its application.  Suppose that it has been accepted  because of s316 that a mainstream school needs to be named:  if there are two candidate schools, otherwise equal in all respects, why should s9 not be applied to confer additional weight on the parent’s preference?  Further, because s9 involves something of a balancing exercise, there may be cases where parental preference tips the balance where the schools are not in all other respects equal.  Not to apply it would appear to be to fly in the face of the breadth of section 9, acknowledged in Mulla v Hackney Learning Trust [2014] EWCA Civ 397; [2014] ELR 350.

 

24. While I agree with Mr Bowers that it is not the function of s9 to reintroduce into consideration of whether a mainstream placement is required factors which ss316 and 316A have clearly excluded, I do not accept that the limitations of ss 316 and 316A on when mainstream education need not be provided so impinge upon the ground covered by s9 that they will in all circumstances deprive the latter section of further effect, which appeared to be the ground to which he moved in the course of argument.  When s316 applies and is given effect to via s324(4) it is those provisions which delimit an authority’s powers and duties:  s9 provides a mandatorily relevant factor to be taken into account in exercising them but cannot rewrite their extent.  In Bury MBC v SU  [2010] UKUT 406(AAC); [2011] ELR 14 I expressed the view at [28] and [29] that s9 cannot constrain the operation of s316 and I remain of that view for the reasons given; but that is not to say that s9 may not still be of relevance in cases where full effect has been given to s316, yet questions of parental preference may still remain: that was not the situation in Bury.  For instance, there might be two mainstream schools, one costing £60,000 per year and one £80,000 a year to provide for a pupil with special educational needs in a manner which avoided incompatibility with the provision of efficient education for other children.  Those substantial costs will not in general terms be relevant to the decision to place the child in a mainstream school as opposed to a special school: see e.g. Bury at [23], and Harrow LBC v AM [2013] UKUT 157 (AAC).  But as to which of the two, if the parent’s preference is for the more expensive, s9 continues to have an obvious role.  As regards the proviso in s9 that regard is to be had to the wishes of the parents “so far as that is compatible with the provision of efficient instruction and training”, that is - to the extent that other children are concerned -substantially saying the same as does s316(3)(b) and thus there may be limited scope for the proviso to apply once it has been determined that the provision required by s316 is to be mainstream.  Insofar as there is a difference (i.e. notably as regards the provision of efficient instruction and training in relation to the pupil concerned), I do not see any necessary conflict in applying section 9 in a context where, having first applied s316 and 316A in accordance with their terms, one has arrived at the conclusion that mainstream education is required and the only issue is as to which of two schools it should be provided at.

 

25. I do not see the above views as inconsistent with the observations of the Court of Appeal at [80] of MH.  Where the Court observed (strictly, obiter) that

 

“In the context of the s316 process, the Tribunal must, in our judgment, consider all candidates for nomination on an equal footing, whether they are proposed by the parent or by the LEA…”

 

it was doing so in the context of emphasising that the rights conferred by sch27 para 3 did not apply to the s316 process.  It does not appear that it was invited to consider s9 and it did not do so.

 

26. However, in considering how section 9 falls to be applied at such a point, I reject Mr Friel’s submission that the comparison required is between the parent’s first choice and the authority’s second.  In essence he is arguing for his client to “have her cake and eat it.”  On the one hand she wishes to assert a (fallback) preference for mainstream education so as to defeat under s316 the authority’s proposal of a maintained special school, on the other she wishes to ignore that fallback preference so as to be able to claim a comparison with her original choice.

 

27. As noted above, section 9 merely obliges a local authority to

 

” 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.”

 

28. Given the principle of the fallback preference, I cannot see that it does any violence to the language of the section to treat “the wishes of [the parent]” as encompassing first the initial preference and, once that has failed and the fallback preference been triggered, the latter preference.  Consequently, where the fallback preference has been triggered, the s9 principle would fall to be applied by reference to wishes under the fallback preference, just as before the fallback preference was triggered, it fell to be applied by reference to the original preference.

 

29. So understood, although s9 is capable of applying at this point of the analysis, it simply has no purchase as both the parent and the authority are agreed on a particular mainstream school once, applying ss316/316A, a mainstream school has been determined to be required.

 

 

CG Ward

Judge of the Upper Tribunal

1 April 2015