Transport costs

March 23rd, 2012

The Court of Appeal has considered whether two schools can be named in Part 4, with the parental preference only named on condition that the parents pay the transport costs: Dudley MBC v Shurvinton & Ors [2012] EWCA Civ 346.

The child’s statement provided in Part 4 that “The Local Authority would consider that [J’s] needs could be met in his nearest special school for pupils with moderate learning difficulties, namely Halesbury School…[The parents] have expressed a preference for The Brier School…which has been agreed. However in accordance with the Local Authority’s home to school transport policy [the parents] will be responsible for all travelling expenses and arrangements”.

The parents appealed to the First Tier Tribunal, which ordered that Part 4 should name Brier School (alone). It found that both schools could meet the child’s needs but that it would not be an inefficient use of resources to pay the slightly higher transport costs involved in meeting the parental preference. As this blog reported last February, the Upper Tribunal upheld the FTT’s decision and provided the following guidance for cases where two schools are suitable and the parents prefer School B:

(1) The first stage is for the FTT to determine the relative transport costs of the two schools, assuming the authority will have to provide transport to both.

(2) If the FTT determines that the costs of transport to School B is not incompatible with the efficient use of resources, the FTT must name School B in Part 4 (and only School B, even if School A is also suitable).

(3) If the FTT determines that the cost of transport to School B is incompatible with the efficient use of resources then it is not required to specify School B in the Statement and should normally specify School A (although the UT took the, perhaps surprising, view that the FTT still has a residual discretion to name School B in those circumstances in order to give effect to parental preference).

(4) Alternatively, the FTT may name School B as well as School A in the Statement, on the condition that the parents pay the cost of transport to School B.

The Court of Appeal has upheld the Upper Tribunal’s decision (whilst expressing one reservation about the reasoning). The Court rejected the local authority’s argument that the FTT did not have jurisdiction to consider transport costs in this way, as transport was not educational provision. This argument put form over substance; there was a dispute about educational provision, in that the local authority would only agree to the parents’ choice being named in Part 4 if the parents agreed to pay the transport costs. The FTT ‘stood in the local authority’s shoes’ at the appeal stage and so if the local authority had brought transport costs into play then the FTT was required to resolve that issue.

The Court of Appeal’s only reservation about the Upper Tribunal’s guidance related to (3) above.  The Upper Tribunal had said at paragraph 42 that if two schools were suitable and the parental preference would be incompatible with an efficient use of resources, “The tribunal should then consider whether that school should nonetheless be specified taking account of the duty to have regard to parental preference under s.9. If the conclusion is to that effect after taking into account transport costs to the parents’ preferred school … then for the same reasons the parents’ preferred school alone should be named in Part 4 of the Statement”. As this blog commented, the Upper Tribunal’s reasoning here was surprising. The Court of Appeal has now clarified that the FTT does not have any residual discretion to name the parental preference (alone) if it would be incompatible with an efficient use of resources for the local authority to pay the associated transport costs.  Section 9 does not mean that parental preference is to prevail unless it involves unreasonable public expenditure; in dealing with special schools, the local authority and FTT must also observe the specific provisions of paragraph 3(3) of Schedule 27 (which has the effect that a preference may be expressed but it is subject to the qualifications set out in paragraphs 3(3), one of which is the efficient use of resources).

It follows that the guidance (as amended in light of the Court of Appeal’s decision) is that where two schools are suitable and the parents prefer School B:

(1) The first stage is for the FTT to determine the relative transport costs of the two schools, assuming the authority will have to provide transport to both.

(2) If the FTT determines that the costs of transport to School B is not incompatible with the efficient use of resources, the FTT must name School B in Part 4 (and only School B, even if School A is also suitable).

(3) If the FTT determines that the cost of transport to School B is incompatible with the efficient use of resources then it is not required to specify School B in the Statement and should normally specify School A.

(4) Alternatively, the FTT may name School B as well as School A in the Statement, on the condition that the parents pay the cost of transport to School B.

Rachel Kamm, 11KBW

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