Special Educational Needs: Guidance given on approach where parents cannot agree on choice of school in SEN statement

October 31st, 2016

In SG v Denbighshire County Council and B (SEN) (Special Educational Needs: Special Educational Provision – naming school) [2016] UKUT 460 (AAC), the Upper Tribunal gave guidance on the approach to be taken where parents cannot agree on the choice of school to be named in Part 4 of a statement of special educational needs (“the Statement”).

E’s parents were separated, and did not agree on the choice of secondary school. The parents had a joint residence order, but it appears that E lived with her mother. Mr S wanted E to attend a school in Town R, where he lived. E’s mother wanted E to attend a school in Town P, which was also attended by E’s sister. In Part 4, the local authority named “P School (as long as parents pay for transport)”.

Mr S appealed to the Special Educational Needs Tribunal for Wales (“the SENTW”). The local authority considered that both schools were suitable, but that P school was named because it was E’s mother’s preference and she had day to day care of E. The SENTW dismissed Mr S’s appeal. The SENTW chose not to hear evidence from the SENCOs at either P or R school, but accepted the local authority’s “assurance” that both schools could deliver the provision required by E’s statement. The SENTW considered that both schools were very similar, but that as both schools met the suitability threshold, any differences between them were not relevant. It considered that E preferred P School, although the case management direction made by the SENTW in advance of the hearing requiring E’s mother to allow an educational psychologist to speak to E about her wishes had not been complied with and her up to date views had not been obtained. Ultimately, the SENTW named P School in E’s statement since it was preferred by her mother, with whom she lived, E preferred P School and her sister also attended the school

The Upper Tribunal refused Mr S permission to appeal on the ground that, in light of the joint residence order, the SENTW should have proceeded on the basis that E lived with both her parents. The residence order was not enforceable by the SENTW, and it was not required to ignore the reality of E’s day to day care arrangements. However, the Upper Tribunal granted permission to appeal on a number of other grounds, including the important question as to how a tribunal should proceed when there was parental disagreement over which of two suitable maintained schools should be named in a statement.

Parental disagreement
Paragraph 3(3) of Schedule 27 to the Education Act 1996 (“the 1996 Act”) requires a local authority to specify in a child’s statement a maintained school for which a child’s parent has duly expressed a preference, save where the school is unsuitable or attendance of the child would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources. Neither exception was relied on in this case, and it was common ground that both P School and R School were schools which, but for the parental dispute, Schedule 27 would have required to be named in E’s statement. The Upper Tribunal noted that the 1996 Act did not provide for cases where a child’s parents expressed opposing preferences, and there was no guidance in the current SEN Code of Practice for Wales.

The definition of “parent” is found in section 576(1) of the 1996 Act, which states that the term “parent” includes any person (a) who is not a parent of his but who has parental responsibility for him, or (b) who has care of him. Parental responsibility has the same meaning as in the Children Act 1989. The Upper Tribunal noted that both parents had parental responsibility for E which includes the right to determine a child’s education, and that family courts are regularly asked to make orders under the Children Act 1989 to resolve parental disputes about a child’s schooling. However, neither the SENTW nor the Upper Tribunal had any statutory powers to transfer SEN proceedings to the family court to resolve a parental education dispute. The Judge considered that it might be appropriate for a tribunal to adjourn pending resolution of family proceedings concerned with the exercise of parental responsibility in relation to a child’s education. However, neither tribunal could conjure family court proceedings out of thin air.

The Upper Tribunal concluded that Parliament could not have intended for the Schedule 27 requirement to specify a parent’s maintained school to operate in a case where there was a parental dispute, and stated that it would be nonsensical for two maintained schools to be named in a statement of SEN both of which would be statutorily required to admit the child. The Judge relied on the principle of construction that the courts will presume that Parliament did not intend a statute to have consequences which are objectionable or undesirable or absurd or unworkable. He then held that as paragraph 3(3) of Schedule 27 did not require a school to be named in E’s statement, once the SENTW had decided to name a school, section 324(4)(b) of the 1996 Act required it to specify the school it considered “appropriate”. In assessing what is “appropriate” it is legitimate to take into account which school is better suited to a child’s needs when deciding which school should be named. The Upper Tribunal concluded that the SENTW erred in failing to consider which school would provide a better education for E and which school could better meet her needs. The SENTW should not have accepted the local authority’s “assurance” that the provision at the two schools was in material respects the same without examining that issue for itself.

The Upper Tribunal considered that the other option open to a local authority or tribunal in these circumstances was to name a type of school in Part 4. This was on the basis that, as Schedule 27 does not require a school to be named where there are opposing parental preferences for maintained schools, it would then be to open to a local authority or tribunal to name a type of school as per the Court of Appeal’s ruling in Richardson v Solihull; White v Ealing [1998] ELR 319. If the parents still could not agree on the school the child should attend, the family court would then resolve that dispute.

This is an issue that arises frequently in practice. It is a complicated issue, with different competing rights and jurisdictions in play. However, I am not convinced that the Upper Tribunal’s approach is correct. In effect, because there are competing parental preferences, the Upper Tribunal says that there is no statutory duty to give effect to either. It removes the statutory right given to parents under paragraph 3(3) of Schedule 27, and permits a local authority to ignore parental wishes and name any school they consider appropriate.

In this situation, I consider that a local authority and tribunal should apply the test in paragraph 3(3) of Schedule 27 to each of the parental preferences to determine whether they are under a statutory duty to name either of them. The suitability of both schools will be assessed. If either school is unsuitable, it will not be named. The decision maker will then have to assess whether attendance at either of the schools would be incompatible with the efficient education of other children or the efficient use of resources (which includes, as part of the analysis, a balance of any educational benefit versus additional cost to determine whether the placement meets this test). In practice, it will be a very rare case where both schools offer identical provision at an identical cost. If the only two schools being considered are School A (parent 1’s choice) and School B (parent 2’s choice), and School A is better able to meet the child’s needs, and costs £20,000 a year less than School B, then the local authority would be under a statutory duty to name School A. If the local authority identifies a school that is also able to meet the child’s needs and is cheaper than both parental schools, then the decision maker is not under a statutory duty to name either of the parental choices, and can name its own choice of school. Usually, the decision maker is applying the statutory test to two possible schools (one put forward by the parent and one by the local authority). If both parents are putting forward different choices, then the decision maker applies the statutory test to three possible schools.

In the unlikely event that both schools put forward by the parents are materially identical, I do not see any difficulty in naming both schools in Part 4. This is often done in practice where a parent wishes a child to attend School X, but the transport costs to School X would make it an inefficient use of resources. Local authorities frequently name two schools in Part 4, along the lines of “School Y is named in Part 4, but the child will attend School X in accordance with parental wishes and the parent provides transport to School X”.

The fact that a school is named in Part 4 of the statement does not mean that the child will necessarily attend that school. Parents may decide, in the exercise of parental responsibility, that the child attends a different school of their choice: see, for example, the guidance given by Munby J, as he then was, in X County Council and DW [2005] EWHC 162 (Fam). If there is a dispute about the choice of school, then that dispute is resolved by the family courts. That does not mean that the local authority is obliged to pay for that placement, as the family court is deciding what is in the best interest of the child (rather than the duty owed by a local authority under the 1996 Act). The local authority may decide, in the exercise of its discretion, to pay for the placement identified by the Family Court. It may not. What it is required to do is comply with its statutory duties by making the placement specified in the statement available.

If, applying the test in paragraph 3(3) of Schedule 27 to both parental choices, the decision maker is under a statutory duty to name one of those choices, then it is not open to it to specify a type of school under Part 4. The decision maker must then name the parent’s choice of school.

Transport
The local authority argued that, even though P School was more than 3 miles from E’s home, it had complied with its obligations under the Learner Travel (Wales) Measure 2008 and so was not required to fund E’s transport to P School. While it was not necessary for the resolution of the appeal, the Upper Tribunal noted that a Welsh authority is required to make suitable transport arrangements to facilitate attendance each day at the place where the child receives education if the child is receiving secondary education at a maintained school and the child is ordinarily resident at a place 3 miles or more from the school. That duty does not apply if arrangements, “have been made by the authority for enabling the child to become a registered pupil at a suitable maintained school nearer to the place where the child is ordinarily resident”. The local authority considered that as R School was closer to E’s home, it was not required to fund transport to P School. The Upper Tribunal stated that it was not clear how the local authority had reached this view when no arrangements had been made for E to attend R School. If the local authority named P School, and only P School in the statement, it is clear that it is obliged to fund transport to that school.

General Points
The Upper Tribunal was highly critical of the local authority’s approach to this appeal (not least for referring to the SENTW as the First-tier Tribunal throughout). The authority attempted to file fresh evidence to bolster the SENTW’s findings of fact, and was highly critical of Mr S, noting his “abrasive approach” and accusing him of making false representations to the Upper Tribunal. The Judge considered that the local authority’s submissions were not “particularly helpful” in a case with a background of parental conflict, and emphasised that evidence or written assertions were only pertinent to the appeal if they said something relevant about the lawfulness of the SENTW’s decision. The local authority also contended that, even if the appeal were allowed, it would be pointless to remit the matter, because the result was bound to be the same as E wanted to stay at P School. No evidence was produced to support this beyond bare assertion, and it was rightly rejected.

Outcome
The Upper Tribunal allowed the appeal and set aside the SENTW’s decision as it contained an error of law. The appeal was remitted to a differently constituted SENTW panel for re-hearing. The Judge made directions that (1) the local authority make arrangements for an appropriate person to obtain E’s views as to her education, and (2) that Mr S and E’s mother must not to do anything to obstruct the local authority in making those arrangements or obstruct the person charged with obtaining E’s views.

Application to England
The final point to note is that, although this was a Welsh case arising under the 1996 Act, these issues will apply equally under the English regime. They will apply directly if a local authority still maintains a statement under the 1996 Act. The same issue will also arise under Part 4 of the Children and Families Act 2014 (“the 2014 Act”). The right to express a preference for a type or particular school or institution is contained in section 38(2)(b) of the 2014 Act, and is given to “the parent”. The term “parent” is not specifically defined in Part 3 of the 2014 Act, but section 83(7) of the 2014 Act has the effect that the definition is the same as that in the 1996 Act – i.e. anyone with parental responsibility for a child. Section 39(3) contains the same statutory duty to name the school or other institution specified in the parent’s request, unless the exceptions in section 39(4) are made out (namely, the school is unsuitable, or would be incompatible with the provision of efficient education for others or the efficient use of resources).

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