Local Government - February 2009

Special Educational Needs – recent decisions

Waking day curriculum: when is it an educational need?
B County Council (Appellants) v (1) Mr and Mrs H (2) Chair of the Special Educational Needs & Disability Tribunal (respondents) & BH (Interested Part) (2008)

Facts: Mr and Mrs H’s child, C, was severely autistic, had a diagnosis of ADHD and was non-verbal. He had severe learning difficulties. C’s school was closing so the local authority issued an amended statement naming a maintained school and suggested that C reside at a children’s home on the school’s site. H’s preference was for an independent residential special school for autistic children. The local authority recognised that C needed a consistent approach across school and residential care settings.

SENDisT Judgement: SENDisT advised that C’s placement at the children’s home would require parental consent and as H withheld consent, it was outside the tribunal’s jurisdiction to name the provision proposed by the authority, even though they had deemed the provision proposed to be appropriate. The Tribunal therefore concluded that H’s preferred school should be named. The authority appealed the decision on the basis that it was not part of the Tribunal’s function to make an order in relation to non-educational provision and had no jurisdiction therefore with regards to the children’s home. Having determined that the school proposed by the authority was suitable, it was argued that the tribunal should have named it.

High Court Judgement: The appeal was allowed by the High Court. Mackie QC sitting as a judge agreed that the tribunal’s jurisdiction was limited to C’s special educational needs, and having decided that the provision at the proposed children’s home was not part of the special educational provision, the tribunal had no power in relation to it. The Tribunal had therefore erred in not naming the school proposed by the local authority. On the need for ‘consistency’ Mackie QC said, ‘A reference to “consistent approach” can be made in Part 3 (under the heading “Special Educational Provision”) without it becoming a special educational need…..There should not usually be a need to place “consistency” into either educational or non-educational pigeon holes when this noun refers to co-ordination between the two. Similarly there is no warrant for classifying consistency as “education” so as to bring into the education pigeon home non educational features…”

Commentary: This judgement provides helpful guidance to local authorities as to where the dividing line between educational and non-educational needs may be drawn and as to the language that can be used in Parts 2 and 3 of statements to convey a child’s need for consistency between school and home without forcing a conclusion in part 4 that only a residential school will suffice. Underhill J’s observations last year in The Learning Trust v SENDisT and MP [2007] were similarly helpful when combating arguments that a residential placement is required where there is an agreed need for consistency. In that case Underhill noted ‘..the need for consistency of approach is not the same as a need for an educational programme beyond the normal school day..’. The determination as to what constitutes an educational or non-educational need remains a question of fact for the LEA, and if necessary SENDisT, to determine on a case-by-case basis. The courts have maintained that the need for consistency in and out of school does not necessarily mean the child has an educational need for a waking day curriculum. The High Court reached a similar decision this month in R (on the application of TS) v (1) Angela Bowen (Chair of SENDIST) (2) Solihull Metropolitan Borough Council which again concerned the choice of school for an autistic child with severe and severe needs. The LEA again accepted that the child needed consistency of approach across school, home and community settings but argued that insofar as that was an educational need, it was met by the provisions in Part 3 of the statement for “regular liaison between staff and agencies … and his family in order to facilitate consistent methods and approaches and respond to any difficulties should they arise” and for “Teachers, therapist, professionals and parents all to meet on a termly basis to monitor [the child’s] progress and to carefully and systematically plan a co-ordinated programme for the following term”. The High Court Agreed.

Non-educational costs: should they be taken into account?
O v (1) Lewisham London Borough Council (2) Special Educational Needs & Disability Tribunal (2007)

Facts: O’s son, S, was an 11 year old with severe and complex difficulties. His Statement was amended when the time came for him to transfer to secondary school. The authority identified a maintained day special secondary school as the school. O’s preference was for a maintained special school which was primarily residential.

SENDisT judgement: SENDisT held that S’s educational needs did not require a residential setting and that a residential school would be an inefficient use of recourses since it would cost approximately £20,000 more per year than a placement at the day school. The tribunal did not accept that it should bring into account the cost of respite care, amounting to about £16,588 per year, provided to O by the local authority as part its social services obligation under the Children Act 1989. O appealed the decision on the grounds that the tribunal should have considered the effect of s.9 of the 1996 Act and that s.9 had a wider scope than para.3(3) (under which it was accepted that the authority could only take account of the costs and any saving as an LEA when considering “the efficient use of resources”). It was submitted that “public expenditure” under s.9 was not confined to the costs to the local authority as an LEA but would also include savings on the costs of respite care and that if the tribunal had had proper regard to s.9 and the evidence about cost savings it might have concluded that the residential school should be specified.

High Court judgement: The appeal was allowed. Andrew Nicol QC, sitting as a deputy high court judge, ruled that other public expenditure could be taken into account. S.9 did apply even where the parents’ preference was for a school in the maintained sector. An LEA could call for assistance from a local health board, primary care trust or local authority when it needed help in the exercise of any of its functions and there was no reason why the help should not take the form of information as to the costs of services which that other authority would incur or would save if the parents’ choice of school was adopted. LEAs and the tribunal should inform themselves of the ‘full picture’ and adopt a ‘holistic approach’ in accordance with what Andrew Nicol QC regarded as the natural meaning of the term public expenditure in s.9. The statement could include non-educational provision which the LEA was satisfied would be made available by some other body. Andrew Nicol QC said it was implicit in the tribunal’s decision that it did not consider s.9 to be relevant and that if the tribunal had taken account of the evidence that the cost of the residential school was very considerably matched by savings on other public expenditure it was possible that it would have named the residential school.

Commentary: Prior to this decision it had been widely accepted that where parental preference is for a maintained school an assessment of the relative costs of placement is carried out in accordance with Schedule 27, para 3 of the Education Act 1996 such that the parent’s preference should be named unless ‘unsuitable’ or ‘incompatible with the provision of efficient education’. When the parent proposed an independent school schedule 27 is not applicable and the more general principle set out in s.9 of the Education Act 1996 applies, such that LEAs ‘shall have regard to the general principle that pupils are to be education in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and the avoidance of unreasonable public expenditure’. It had been furthermore accepted that the only costs that the Tribunal could take into account when considering whether or not a placement sought by a parent was ‘incompatible with the provision of efficient education’ for the purposes of schedule 27 or ‘with the avoidance of unreasonable public expenditure’ for s.9 were the costs of the LEA and not costs to other services.

Following the judgement of Andrew Nicol QC, this no longer appears to be the case, as he states that s.9 can apply even where the parental preference is for a maintained school, and that s.9 is not limited to the costs incurred by the LEA. This judgement is problematic for LEAs seeking to show a tribunal that a residential placement is an inefficient use of resources. Local authorities might be relieved therefore to hear that there remains scope for arguing in SENDisTs that the decision is in fact incorrect and should not be followed.

In brief, the following arguments can be made against the judgement:-

O v Lewisham conflicts with two earlier High Court decisions (C v SENT and S v Somerset). Tribunals should therefore consider the matter afresh and determine which of those conflicting decisions they should follow.
House of Lords in B v London Borough of Harrow and ors [2000] established that where a parents’ preference is for a maintained school, the parental preference test to be applied is ‘inefficient use of resources’ under Schedule 27, para 3 of the EA 1996. Their Lordships held that, in applying that test only the resources of the respondent LEA are to be taken into account. Can be argued that Lewisham should not therefore be followed.
In judgement of the Court of Appeal in C v Buckinghamshire County Council [1999], which established that s.9 should be applied where the parental preference is for an independent school, Lord Justice Sedley commented that where the choice is between two maintained schools, the general duty in s.9 is ‘superseded’ by the more onerous duty in the Schedule’.
To follow Lewisham would create undesirable difference in rules to be applied when a parent expressed preference for a maintained school, where schedule 27 should generally be followed and expenditure other than that of the LEA cannot be taken into account (Harrow), and preference for independent school where s.9 follows and public expenditure can, in accordance with the Lewisham case, be taken into account. This would make it easier for parents who express a preference for an independent school to have their wishes fulfilled than it will be for parents who propose a maintained school. Contrary to the primary duty on LEA’s under s316 of the 1996 Act to educate children with special educational needs in maintained mainstream schools.
Parliament has provided for the resources of social services and health authorities to be considered by those authorities themselves under s322 when a request is made to them.
Clear distinction is drawn in SEN code and within the body of a statement of special educational needs between educational and non-educational provision and between the LEA and other public authorities. In the Lewisham case Andrew Nicol QC appears to have been under the impression that the contents of Parts V and VI of the statement was a matter for the Tribunal to consider ‘in the event of an appeal’, and did not recognise that such non-educational provision are in fact expressly outside the Tribunal’s jurisdiction.
If public expenditure in s 9 is taken to include expenditure of authorities other than the LEA we would be left with situation where SENDisT is required to adjudicate on costs of services and provision which are clearly outside of its jurisdiction. Moreover, SENDisT would be left to determine issues as to the cost of services provided by parties, such as social services, who cannot be a party to the appeal and are unable therefore to make representations to the tribunal as to those costs.
Practical difficulties would follow as it will be very hard for LEAs to produce any, let alone accurate, evidence about such costs. Non-educational costs or savings can also fluctuate and this could not easily be taken into account.
Unfortunately the issue does not appear to have been tested since the judgement in Lewisham but no doubt the question will arise again. Local authorities are therefore advised to be alert to the arguments and to be ready to put forward strong arguments as to why Lewisham should not be followed. Councils should seriously consider appealing any negative decision at the tribunal which hinges on the decision in Lewisham.

Another important case on the question of resources last year was Coventry v Browne [2007]. It has long been established that the costs that Tribunal should consider under s. 9 and Sch. 27 para 3 are the ‘marginal costs’, and monies that would be spent whether or not a child attended a particular provision should be ignored, (see Oxfordshire County Council v GB and Others [2001]). In Coventry v Browne it was accepted that expenditure from the schools delegated budget was to be treated as expenditure from the LEA’s budget. Thus where the school would spend more money if the child attended (even if no more money would pass from the LEA to the school in that year as a result) that additional expenditure by the school was to be taken into account when assessing the marginal cost.

Transport costs: have you made a part 4 agreement?
R (M) v Sutton Borough Council [2007]

Facts: The authority had agreed to the child’s placement at the parent’s school preference but only on the basis that the parents provide transport. The authority had not identified a particular school that they considered would be suitable in the event that the parents ceased providing transport, but had merely stated that a nearer maintained, mainstream school would be suitable. When the parents could no longer provide transport the authority refused to cover the cost on the basis that the child could go to a nearer school.

Court of Appeal: The High Court held that the authority had acted unlawfully. The Court of Appeal reversed the decision of the High Court on the basis that the Court had not appreciated that it is permissible for an authority to just name a type of school in Part 4 of a child’s Statement, even where they are rejecting a particular school named by the parents. The Court of Appeal thereby affirmed that it is permissible for an authority to name a ‘type’ of school in a Part 4 agreement and such an agreement will be effective if the parent ceases to provide transport for the child, so that the local authority can refuse to continue paying for the parent’s preferred choice of school on the ground that a ‘mainstream maintained school in the area’ is available and suitable for the child’.

Commentary: Where a local authority is willing to name a parent’s choice of school in Part 4 only on condition that the parent pays for transport to the school an express agreement to this effect can be made. In such cases it is advisable for local authorities to follow the advice of Beatson J in R v Islington Borough Council ex parte A (A Child) [2000] in order to protect their position, he said (para 27): “There is no reason why more than one school should not be specified in a statement if, in the view of the education authority, more than one school would equally answer the child’s needs. This was done in Re C [1994] ELR 272, where the second school named was the one the child’s parents preferred, which the authority agreed to include on the basis that the parents were to be responsible for all travelling expenses and arrangements.” In that way, Beatson J observed, the parents could appeal to the Tribunal against the naming of the authority’s preferred school in the statement and, if the Tribunal found it unsuitable, then the authority would effectively be required to pay the transport costs to the parents’ preferred school (if outside the statutory walking distance or otherwise “necessary” under s509 EA 1996). It is now generally accepted to be permissible for the authority to record such agreements in Part 4 by stating that if the parent ceases to provide transport, the local authority will cease paying for the school place on the basis that another, nearer, less expensive, school is available. Such agreements are very useful and should be used by local authorities where appropriate.

Where agreements of this nature are made it is important for authorities to put such an express condition in part 4. If such steps are not taken by local authorities to protect their position then such arrangements can cause difficulties. Once an authority has named a particular school in a child’s statement as being suitable, it cannot then argue that another nearer school is in fact suitable, when considering whether or not to provide transport under s 509 (see R v London Borough of Havering, ex parte K [1998]). If the parents decided to cease to transport at any point, the LEA would have to provide that transport, unless a Part 4 agreement has been reached as above. Local authorities should be aware that where the parents have agreed to provide transport to their preferred to school, the cost of transport should still be taken into account by the Tribunal when comparing the cost of two provisions and determining whether a placement would be incompatible with the avoidance of unreasonable public expenditure or the efficient use of resources. The Tribunal has no jurisdiction to order the parents to provide transport and the parents are under no obligation to provide transport.

Another case worth mentioning on the issue of transport is D v (1) Bedfordshire County Council (2) Special Educational Needs & Disability Tribunal (2008)

Facts: D suffered from Asperger’s Syndrome. Bedfordshire County Council had provided a bus for him to be transported home, along with three other pupils, as the usual end of the school day. D wanted to attend various after-school activities. D’s parents asked the council to provide transport at the later time. No other pupils would be travelling at that time so to comply with the request the council would have had to provide a taxi, it refused to do so. D’s parents appealed to the tribunal on the basis that the council’s failure amounted to unlawful disability discrimination.

SENDisT decision: SENDisT held that the provision of transport constituted an “auxiliary aid or service” and fell within the exception to the reasonable adjustment duties in the Disability Discrimination Act 1995 s.28C(2)(b) and s.28G(3)(b). D appealed. D argued that the authority had simply been asked to make an adjustment to a service that was already provided and did not constitute an “auxiliary aid or service”.

High Court judgement: The high court allowed the appeal; the tribunal had erred in law. The travel arrangements were made in order to secure that suitable home to school travel arrangements existed to facilitate D’s attendance at the school. The after-school activities were part of the educational provision at the school and constituted activities which had to be available to all, including a disabled child. D’s request for an adjustment to alter the time at which he was collected on certain afternoons amounted to an adjustment. The case was remitted.

Final conclusions: The decision in O v Lewisham suggests that the general move towards adopting a more holistic, joined-up approach towards a child’s needs may increasingly filter into decisions about a child’s SEN provision and corresponding decisions in SENDisT and the High Court. Current SEN legislation and guidance still however draws a clear divide between educational and non-educational needs and until this changes it remains at the very least arguable that such a holistic approach goes beyond the remit of the LEA and the SENDisT when determining a child’s SEN provision.

The clearer local authorities can be in their position at the outset and the better they record this (preferably in the statement where applicable) the less likelihood that they will run into difficulties in the longer term.

Eve Holt
Weightmans LLP