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Neutral Citation Number:	2011 UKUT 71 AAC
Reported Number:
File Number:	HS 2846 2010
Appellant:	K
Respondent:	London Borough of Hillingdon
Judge/Commissioner:	His Honour Judge Pearl
Date Of Decision:	11/02/2011
Date Added:	07/03/2011
Main Category:	Special educational needs
Main Subcategory:	Special educational provision - naming school
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2011] AACR 31. Special educational provision – naming of school – unreasonable public expenditure – whether reasonableness limited to educational benefits The statement of special educational needs as amended ahead of the child’s transfer to secondary school named a local authority maintained special day school as meeting her needs. The parents appealed, contending that a named independent residential school better met her needs. Section 9 of the Education Act 1996 as amended provides that 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. In assessing the comparative costs of the two schools the First-tier Tribunal stated that it had no jurisdiction to deal with social and health reasons however compelling they might be and dismissed her appeal. It decided that the child should be placed at the day school and placed a year below her chronological age. The parents appealed to the Upper Tribunal, contending that there had been an unlawful failure by the tribunal to consider wider benefits in deciding whether additional public expenditure would be unreasonable, relying on O v London Borough of Lewisham [2007] EWHC 2130 (Admin); [2007] ELR 633. The local authority argued that O was wrongly decided and in conflict with the House of Lords’ interpretation in B v London Borough of Harrow [2000] 1 WLR 223; [2000] ELR 109. The authority maintained that, notwithstanding the fact that the legislation as amended made no distinction between a “local education authority” and other functions of the local authority, section 9 (and Schedule 27, which applied to cases where parents preference was for a maintained school) dealt with the Education Act and educational provision, and the exercise that faced a local authority (and a tribunal on appeal) was the balance between educational advantages and additional cost. Held, allowing the appeal, that: 1. local authorities and the tribunal should inform themselves of the full picture and adopt a holistic approach in accordance with the natural meaning of the term “public expenditure” in section 9, and also with the phrase “efficient use of resources” in paragraph 3(3) of Schedule 27: citing W v Leeds City Council and Special Educational Needs and Disability Tribunal [2005] EWCA Civ 988; [2005] ELR 617, which was followed in O (paragraphs 23 and 24); 2. the House of Lords’ interpretation in B of the word “resources” in paragraph 3(3) did not require an interpretation of section 9 which confined “expenditure” to expenditure by the local education authority. The legislation, as further amended in 2010, enabled and indeed obliged the local authority and the tribunal on appeal to look at the public purse generally, and not exclusively the costs that fell within the education budget (paragraph 27); 3. accordingly the tribunal had misdirected itself in law in failing to take account of the wider benefits to which they referred when deciding whether the extra public expenditure that would be incurred if the parents’ preferred school were identified as the School in Part 4 of the statement would or would not be “unreasonable” on the facts of the case (paragraph 30); 4. in deciding first that the child should be placed at the day school and then deciding that what would otherwise (on their own finding) be an unsuitable placement should be made suitable by her being placed a year below her chronological age (without even that being reflected, as it needed to be, in an amendment to Part 3), it appeared that the tribunal had erred in making the provision fit the placement, rather than adopting the correct approach, which was to decide first what provision was required and specify it in Part 3, and then, secondly, to go on to decide at which school that provision was to be made: S v Swansea [2000] ELR 315 cited (paragraph 36). The judge remitted the case for rehearing before a differently constituted tribunal.
Decision(s) to Download:	[2011] AACR 31ws.doc