Local education authority - Statutory duty to provide special education

Shurvinton and others v Dudley Metropolitan Borough Council: Court of Appeal, Civil Division (Lord Neuberger MR, Lord Justices Richards and Davis): 21 March 2012

The claimants’ son, J, was born in 2005. He had been diagnosed with autism and it was considered that he had moderate learning difficulties. When aged four, J began a gradual integration at a school (Brier), which was a special school for pupils with moderate learning difficulties and other more complex difficulties. He seemed happy at Brier and the claimants expressed their preference that he attend that school.

The defendant local authority had a policy that, in respect of the provision of free transport from home to school for children with special educational needs, free transport would generally only be provided to the nearest suitable school. Another school (Halesbury) was also equipped to cater for those with special educational needs and it was located 1.1 miles closer to the claimants’ home than Brier. It was estimated that the extra costs of transport for J to Brier, compared with Halesbury, was between £195 and £312 per year.

The authority provided a statement of special educational needs (SSEN) in respect of J which stated that his needs could be met by the Halesbury school and that, if J attended Brier as preferred by the claimants, then, under the authority’s school transport policy, the claimants would be responsible for all travelling expenses and arrangements. The claimants successfully appealed that decision to the First-tier Tribunal (Administrative Appeals Chamber) (the tribunal) pursuant to section 326 of the Education Act 1996 (the act).

The tribunal found, inter alia, that Halesbury could meet J's needs and would be an appropriate placement for him. Having listed a number of findings of fact, the tribunal stated: 'These factors must be weighed in the balance with the relative costs. Given the very small difference in this case between the cost of transporting [J] (in shared or individual transport) to Halesbury or The Brier we concluded that a decision to name The Brier would not constitute an inefficient use of resources'. The tribunal ordered that the authority should specify Brier alone in the SSEN. The authority appealed unsuccessfully to the Upper Tribunal (Administrative Appeals Chamber) (the Upper Tribunal). The authority appealed.

It submitted that, in the circumstances of the instant case where Halesbury had been assessed by the tribunal as a suitable school, it had been erroneous for both the tribunal and the Upper Tribunal to have ordered the alteration to the SSEN so as to name only Brier. Furthermore, the tribunal had had no jurisdiction on appeal to engage in the purported balancing exercise which it had undertaken. Consideration was given to paragraph 3(3) of schedule 27 to the act. The appeal would be dismissed.

A condition as to transport costs might be one which parents were simply not able to meet, but if they were not able to meet it then, on any view, the child would not be able to attend the school of parental preference. Consequently, parental preference would have been denied.

As a matter of statutory interpretation, there was no principled basis for saying that a dual worded placement contained in a SSEN was, or was not, a matter of educational provision depending on whether or not the parents were able to pay the transport costs or otherwise arrange the transport. Such a contest was as to placement and did relate to a matter of educational provision. Consequently, it was within the ambit of section 326(IA)(b) of the act (see [38], [39], [50], [51] of the judgment).

In the instant case, the acceptance of jurisdiction by, and the approach of, the tribunal and the Upper Tribunal had not been contrary to section 326(IA) or paragraph 3 of schedule 27 to the act. There had been, at the time the SSEN was prepared, and had continued to be a contest as to J's placement between the claimants and the authority. The claimants had wanted Brier to be specified. The authority had wanted to specify Halesbury, but had been prepared to specify Brier on condition that the claimants pay for transport.

That result had not truly reflected the parental preference as to the school at which they had wished J to receive his education. It had been wrong to classify the case as one where there was no continuing issue as to placement; as there had been even though both schools had been assessed by the authority as being suitable. The tribunal had effectively stood in the authority's shoes in re-evaluating the available information in order, if necessary, to re-cast the statement.

However, in completing the SSEN as it had, the authority had given effect to its policy with regard to the payment of transport costs. That had brought into play factors of efficient use of resources. In those circumstances, it had been inevitable that, in evaluating the available information, the tribunal, standing in the authority's shoes, would have needed to have regard to that. That was why the tribunal had necessarily engaged in the comparative exercise that it had, namely, the advantageous circumstances of J's attendance at Brier set against the difference in costs between naming Halesbury and naming Brier.

Consequently, the tribunal had dealt with a matter of educational provision as to which school had had to be specified in the SSEN, having regard to paragraph 3(3) of schedule 27 to the act for that purpose. By virtue of that provision, the name of the claimants' preferred school had had to be specified unless, among other things, attendance of J at that school would have been incompatible with the efficient use of resources.

It would have been contrary to the wording of that paragraph of the act to have removed the cost of transport from the reach of the consideration by the tribunal on the issue of incompatibility with the efficient use of resources (see [34], [37], [40], [42], [43], [50], [51] of the judgment). C (a minor), Re [1994] ELR 273 applied; R v Essex County Council, ex p C [1994] 1 FCR 343 applied; Bromley London Borough Council v Special Educational Needs Tribunal [1999] 3 All ER 587 applied; R (on the application of M) v Sutton London Borough Council [2007] All ER (D) 322 (Nov) applied; Essex County Council v Special Educational Needs and Disability Tribunal [2006] EWHC 1105 (Admin) considered; O v Lewisham London Borough Council [2008] LGR 765 considered; MH v Nottinghamshire County Council [2009] UKUT 178 (AAC) considered. Decision of the Upper Tribunal (Administrative Appeals Chamber) [2011] UKUT 67 (AAC) affirmed.

Russell Holland (instructed under the Direct Access Scheme) for the claimants; Richard McManus QC and Jonathan Auburn (instructed by the Legal Services Department of Dudley Metropolitan Borough) for the defendant.