Section 9 “public expenditure” is that of any public body says Court of Appeal

April 3rd, 2014 by Paul Greatorex

The Court of Appeal has just given judgment in the case of Wendy Haining v Warrington Borough Council [2014] EWCA Civ 398 reversing the decision of the Upper Tribunal which I covered in a blog post last September.

The UT had held that “public expenditure” in section 9 of the Education Act 1996 meant only expenditure from the relevant local authority’s education budget.  The Court of Appeal allowed the parent’s appeal and held that it means any expenditure incurred by any public body, as opposed to any private expenditure incurred by a private body.

The Master of the Rolls (Lord Dyson), with whom Pitchford and Rafferty LJJ agreed, held that this was the natural meaning of the words and such an interpretation does not give rise to difficulties which are so serious as to make the statutory provision unworkable or impracticable.

Although as Dyson J he had come to the opposite view in C v Special Educational Needs Tribunal [1997] ELR 390, largely on the basis of the difficulties in obtaining relevant information that such an interpretation would impose, he said that point had been dealt with convincingly in the case of O v Lewisham [2007] EWHC 2139 (Admin).  To summarise, the two answers given there were:

  1. section 322 of the 1996 Act which (in its current form) enables a local authority to call for assistance from another local authority, the National Health Service Commissioning Board, a clinical commissioning group or a Local Health Board, and
  2. the likelihood that these bodies would be eager to cooperate rather than reluctant because of the possibility that their budget will be relieved.

The position in practice of course remains to be seen, but the Court of Appeal also pointed out that section 9 does not impose a duty to act in accordance with parental wishes but merely lays down a general principle to which regard must be had.  It emphasised that it leaves it open to the local authority to have regard to other things as well and also to make exceptions to the general principle if it thinks it fit to do so.  An indirect effect on a ring-fenced education budget (something the UT had relied upon as a reason for the narrower interpretation) was given as an example of an “other thing” that might justify a refusal to accede to the parental preference.

Paul Greatorex


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