IN THE UPPER TRIBUNAL                                      Appeal No.  HS/2071/2015
ADMINISTRATIVE APPEALS CHAMBER

Before Judge S M Lane

DECISION

This decision is made under section 12(1) and (2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

The decision of the tribunal heard on 21 May 2015 under reference SE812/15/00001 is SET ASIDE because its making involved an error on a point of law. 

The appeal is REMITTED to a fully reconstituted tribunal for a complete rehearing.

STAY
REASONS FOR DECISION

1	On 11 September 2015 I heard this appeal at the Rolls Building, London. On 17 September 2015, I issued further directions.  The parties responses to those directions were received by the Upper Tribunal in or around 1 October.  I apologise for the delay in issuing this decision. 

2	The appellant parents attended the hearing and were represented by Ms Michele Michaelson, solicitor, of IPSEA.  The respondent Local Authority (‘the Local Authority’) instructed Mr Tom Cross, of counsel, to represent them.  The Local Authority’s Interim Head of SEN (Special Educational Needs) and Inclusion, Mrs Falconbridge, also attended.  I thank the parties for their assistance. 

3	The appeal concerns an amended Statement of Special Educational Needs (‘Statement’ or ‘SSEN’) in respect of E, the appellants’ daughter (d.o.b. 31/3/03), issued by the Local Authority on 12 November 2014.  Their appeal was initially confined to Part 4 of the Statement:  the parents’ wished E to attend SJ School, a small, independent mainstream school, whereas the F-tT confirmed the O Academy, as named by the Local Authority. The parties had managed to agree the contents of Parts 2 and 3.  I expressed concerns about the adequacy of Parts 2 and 3 of the Statement when granting permission to appeal, and these were dealt with at the oral hearing.  

4	Prior to the substantive hearing, I held a telephone hearing relating to the parents’ request for a stay of the F-tT’s order naming the O Academy in Part 4.  I granted a stay 26 August 2015. This had the result that E would continue with the one-to-one tutoring the Local Authority was providing for E in a PRU setting or that the parents would provide home schooling until such time as the appeal was reheard, if it was remitted following the substantive hearing.  The reasons are set out at pp43-44 of the UT file.  Following this, the Local Authority made an application for me to recuse myself for bias.  I declined to do so on 2 September 2015 (p49). The application was not renewed at the oral hearing.

Factual background

5	The basic facts needed for the purposes of this decision are these:  E is a high functioning autistic child who is now 12 years old.  In addition to her autism, she can become very anxious.  Her behaviour can be confrontational and, indeed, violent towards her parents and siblings.  Her parents have requested 3 different primary schools for her during her primary years (p508).  She has difficulty settling at school.

6	In the year 6 review, her parents initially requested that E attend the O Academy.  It is a mainstream academy which the parents considered to have the experience and expertise to meet the needs of ASC pupils.  The parents then changed their mind and indicated that they preferred E to attend B School, an independent special school.  They preferred it because of its small size, small classes and the educational environment they thought it would provide.  It cost some £55,000 per year (over 3 times as much as O Academy) and the Local Authority had concerns about whether E should attend a special school.  Nevertheless, they eventually agreed to send E to B School as part of a pilot EHC plan under the Children and Families Act 2014 (p333).  Unhappily, on her first day at the school, E was the subject of an unprovoked attack by a pupil with serious behaviour issues.  E was very distressed and did not wish to return to the school and her parents withdrew her.  She has not been back to school since then.  Both parties recognise the importance of E going back to formal schooling as soon as possible and that the transition into any school will not be easy.  

7	The parents believe that E would integrate into SJ School without too much difficulty.  E has attended two ‘taster’ days at the school and liked it but the Local Authority considers that this school, which is more costly than O Academy and has no specialist provision (p709, Local Authority response) would represent unreasonable public expenditure.  

8	The evidence in the papers before the F-tT was that the O Academy had 864 students at the material time (parents’ chart, p367) and is smaller than the average sized secondary school (OFSTED report in 2014).  It had nearly 4 times as many pupils as SJ School, which had 218.  On the other hand, O Academy has nearly twice as many teachers as SJ School and 39 teaching assistants whilst SJ School has none (parents’ chart).  The O Academy has established resources and experience in special provision for ASC students.  Indeed, the number of students supported by school action is five times more than the national average, and the number at school action plus or with a Statement of Special Educational Needs is nearly twice the national average (OFSTED Report, p353).  The OFSTED report was positive about O Academy’s provision for SEN and disabled children.  There was no bullying, for example.  Other elements praised were its wide range of funding and additional support for SEN and disabled children.  At the time of the 2014 report, the school was judged as needing improvement but the criticism in the report was not aimed at the Academy’s programmes for SEN and disabled students.  The provision for these pupils was described as variable but, on the whole, improving.  

9	The information about SJ School’s handling of children with SEN was sparse, but the Independent Schools Inspectorate report (F-tT bundle, p125ff) indicated that the way SJ School assessed and assisted children with learning difficulties and special educational needs was good [p130, paragraph 2.6, p131, paragraph 2.12, p133, paragraph 2.22].  

10	The parties and the F-tT had both the 2014 report for O Academy and the Independent Inspectorate’s report for SJ before them.  It knew that the OFSTED report in 2014 said that the O Academy needed improvement (351ff).  But neither the F-tT nor the parties knew at the time of the F-tT hearing that the directors of the Oasis Community Learning Trust (which runs O Academy) had been served in March 2015 with a pre-termination warning notice letter because its standards of performance were unacceptably low.  Ms Michaelson sent a copy of this letter to the Upper Tribunal and to Ms Falconbridge after the telephone hearing.  This gave rise to an issue of unfairness upon which the parties gave their views following the UT hearing.

The F-tT’s decision

11	The F-tT stated that the parties had reached agreement on the content of Parts 2 and 3 and adopted the SSEN incorporating all of the agreed changes. It thought that the parents had conceded that their choice of school, SJ, cost around £7500 more per annum than O Academy [9].  (This was probably a slip for £6500).  It acknowledged that the parents had raised some questions on what should be taken into account in assessing the overall cost of SJ, but at [18] correctly stated that the parents’ submission on what was to be included was misguided.  The parents’ argument was that the F-tT should bring into account savings made by the Local Authority during past periods when E was not attending a school against the future expenses at SJ School.  That is plainly wrong.  The comparison must be between the fees and advantages of the schools which were proposed.  For completeness, it should be added that the parents’ further argument - that the very high fees that the Local Authority would have paid had E remained at the B School (where she was attacked) be offset against the cost of SJ, is equally irrelevant for the same reason.  

12	The F-tT went on to state 

[18] ‘…Although [the parents’ have pointed to savings because [the Local Authority] has not needed to expend on school fees for some time, we do not find this relevant to the expenditure that will arise as a consequence of her attendance at the school named in her statement. There is no dispute that SJ’s fees are greater than for E’s attendance at O [Academy].  SJ appears to cost around 50% more.  Noting the significant difference and in the event that both schools should be found to be able to meet her needs and as we have not found any persuasive balancing advantage, we find that it is logical to consider whether or not O Academy is suitable as if so, because of the difference in cost, this will be determinative.  [emphasis added]

The F-tT went on to name O Academy, the Local Authority’s choice of school, in Part 4 of the Statement of Special Educational Needs (SSEN).    

Why I granted permission to appeal 

13	There were a number of troubling aspects in the F-tT’s decision, including 

i.	whether the F-tT applied the correct test on the issue of funding under section 9 of the Education Act 1996;   
ii.	a lack of findings of fact, including whether SJ was, in fact, appropriate for E and in respect of the nature and scope of the support O Academy provided through its ‘nurture group’, its continuing availability as E progressed through the years, and in respect of ‘the Blue Unit’ and how it would meet E’s SEN;  
iii.	a possible mismatch between matters included at the parents’ request in Part 2 of the SSEN, which appeared to me to have been agreed, and the provision actually made in Part 3;  
iv.	a general lack of specificity/detail on the provision that was to be made for E’s needs.  

In addition, a further issue fairness arose regarding the warning of termination notice to O Academy.   

14	The appellant’s initial submissions were narrower.  They asserted errors of law in relation to: 

(i)	the application of the test of unreasonable public expenditure under section 9 when assessing the effect of the cost differential between the schools, and 
(ii)	a failure to reconcile a conflict in the evidence and opinions about the need for a long term placement.

And errors of fact asserted to amount to errors of law in respect of

(iii)	i. ‘the nurture group’, 
(iv)	ii. E having previously been in a specialist placement, 
(v)	iii. the calculation of the costs of the two schools, 

The issues

15	Errors in the application of section 9 are often such as to undermine the F-tT’s decision on naming a school in Part 4.  If such an error is established, it may provide sufficient grounds for setting aside the decision without consideration of the other issues that were raised.  Since this issue may provide grounds on which the appeal may be disposed of without further consideration of the other issues, I deal with this first.  
Section 9 Section 9 - Pupils to be educated in accordance with parents’ wishes.
In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of [State and local education authorities] shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure. 
16	Section 9 should be approached in 3 stages (IM v LB of Croyden (SEN) [2010] UKUT 205 (AAC), Upper Tribunal Judge Levenson) - 

1	Are both schools appropriate?  
2	If they are, which is parents’ preferred school?  
3	Would naming the parent's preferred school be incompatible with the provision of efficient instruction and training or the avoidance of unreasonable public expenditure.  If so, the school suggested by the Local Authority [must] be named.

17	It is not entirely clear from the Local Authority’s final submission whether it considered SJ School appropriate.  They certainly expressed doubt about the school because it did not have established specialist provision.  It also stated that it was not confident that SJ School could meet E’s continuing SEN over the years (p709, para 2.2, 2.3) and concluded that there was nothing at SJ School which would ‘override’ the financial considerations, i.e. extra expenditure, given that O Academy was appropriate.  Even if the Local Authority did not commit itself clearly on whether SJ was appropriate, it did carry out a balancing exercise on the information it had.

18	The F-tT dodged the first question posed by Upper Tribunal Judge Levenson as to whether SJ was suitable (which I will take to mean ‘appropriate’).  It was its job to make that decision.  Its failure to do so was an error of law, though that alone might not have justified setting the decision aside if the rest of its reasoning had been sound.

19	The remainder of the F-tT’s consideration of SJ School is also unsatisfactory.  It simply failed to make any findings of fact about the provision SJ could make for E.  The need to make findings of fact on relevant issues is so fundamental that it should be unnecessary for the Upper Tribunal to remind a First-tier Tribunal of this duty.

20	There was evidence (in the Inspectorate’s report) on the way SJ School made provision for SEN pupils in the bundle which could have provided a basis for a decision one way or the other.  If the F-tT had applied its mind to this evidence, it might have concluded that, as the school did not have dedicated resources for SEN and the report was lacking in detail, the extra expense would be unreasonable.  On the other hand, the F-tT might have been impressed, as the Inspectorate was, with the tailored provision SJ School made for the particular pupils, and the Inspectorate’s report that provision was good.  
21	The failure to make the necessary findings led to the F-tT making a decision that there were no persuasive balancing advantages without any factual substratum.  Its conclusion, as can be seen from the citation of paragraph 18, lacked any supporting reasoning.  
22	The FtT’s approach to the question of unreasonable expenditure under section 9 was also flawed.  In deciding whether the expenditure of public money would be unreasonable, the Local Authority – and the F-tT standing in its shoes – must carry out a balancing exercising.  In Oxfordshire County Council v GB et ors. [2001] EWCA Civ 1358 Sedley LJ described it as follows:
16. ‘In cases like the present, the parental preference for an independent school over an available state school, while perfectly reasonable, may have difficult cost implications for the LEA. In that event it is for the LEA, or on appeal the SENT, to decide whether those cost implications make the expenditure on the independent school unreasonable. This means striking a balance between (a) the educational advantages of the placement preferred by the parents and (b) the extra cost of it to the LEA as against what it will cost the LEA to place the child in the maintained school…’
23	The fact that the school chosen by the parents is more expensive than the Local Authority’s choice is not, in and of itself, determinative of whether the extra cost of sending the child there would amount to unreasonable public expenditure.  The benefits provided by the more costly school (judged in light of the legislative framework in which SEN tribunals operate) must be looked at holistically and the full picture may justify the extra cost:  Haining v Warrington Borough Council [2014] EWCA Civ 389; O v London Borough of Lewisham [2007] EWHC 2130 (Admin), per Deputy HCJ Nicol (as he then was).  This does not necessarily mean that the extra cost must outweigh, or even balance the added benefits equally.  In O v London Borough of Lewisham at [44], for example, it was posited that even a difference in cost of approximately £3500 per year might not be seen as unreasonable expenditure when the whole picture was considered.  

24	In my view, the F-tT over-compressed, and thereby oversimplified, the nature of the balancing exercise it had to perform.  

25	My conclusion on this issue is that there was a material error on the basis of which the F-tT’s decision must be set aside and remitted to a fresh F-tT.  I do not consider it appropriate to substitute my own decision as I do not sit with specialist members.  

Further comments for the rehearing

26	The F-tT can consider the position down to the date of the hearing.  The effect, if any, of the pre-termination warning letter, and any light that it may shed on O Academy’s ability to make appropriate provision for E, will need to be considered. 

27	The SSEN was agreed by the parties, and as pointed out by Mr Cross, the parents’ experienced legal representative has not levelled any criticism at the Statement as agreed.  I have some reservations about Mr Cross’ submissions that in these circumstances the F-tT was entitled to rely on that agreement and would certainly direct the next Tribunal to consider whether the Statement properly reflects what the Local Authority is undertaking to provide.

28	A SEN Tribunal should not rubber stamp a Statement that is inadequate. The Statement that was accepted in this case was vague on the ‘who, what, when and how long’ details that are meant to spell out the Local Authority’s duties to the statemented pupil.  The language of paragraph 17 of the Statement, for example, is certainly less than clear.  It requires the Local Authority to provide funds to the school for a full time [LSA], but this is only to ‘assist the school in providing the pupil with “access” to a full time [LSA]’.  Paragraph 17 does not actually say that E will get a full time, designated LSA, as the F-tT assumed in [20], but that a LSA who works full time will be engaged.

29	I am pressed to find concrete provision, as opposed to ‘consideration’ of types of teaching groups, ‘advice’ on what may be necessary, ‘strategies’ and ‘planning’.  From reading the Statement, a reader would not know that extensive evidence had been given and accepted by the F-tT in deciding to name O Academy on the provision of support for E via the nurture group or the Blue Unit , which are resources for pupils with autism ‘and how [it] would provide support for Erin ‘ [11].  

30	As a pupil gets older, it is understandable that the manner of provision for her may be more fluidly expressed, and that the provision may become more about advice and strategy than one-to-one input.  Nevertheless, since it is the Statement to which the Local Authority and the parents will turn in case of dispute – and not the Tribunal’s written reasons – the Statement should bear some relationship to what was actually said and found to be on offer.  It should do more than simply recommend.  In this appeal, the parents were complaining (or so it seemed) about a perceived under-provision of the kind of special help that the F-tT found would be given.  This might logically have found some expression in the Statement.  

31	The Tribunal that rehears the Statement should look again at the Statement to ensure that it is sufficiently specific to explain the obligations the Local Authority has to provide for the pupil’s SEN.  

32	In giving permission to appeal, I was concerned about the legal effect of inclusion of E’s parents’ statement in Part 2 of the SSEN.  I accept Mr Cross’ submission that this was no more than a restatement of the parents’ views.  It cannot be used as a gloss on the contents of SSEN itself.  I understand that it is not uncommon for SSEN to contain a parents’ statement, but unless any of that statement is transformed into special educational provision, it may mislead and disappoint rather than illuminate.

33	The parents appeared to object to O Academy because they believed that E’s SEN would be insufficiently provided for in the nurture group and the Blue Unit.  They relied on the Local Authority placing E at B School (a special school) to support their view that the Local Authority had accepted that E needed specialist input and to confirm their fears (seemingly) about under-provision at O Academy.  I consider the parents’ point to be thoroughly bad.  The Local Authority did not consider B School suitable for E, but placed her there because of her parents’ insistence.  The Local Authority not only had regard to their wishes but leaned over backwards to accommodate them.  The placement did not work out, through no fault of the Local Authority.  I cannot see that any of the conclusions that the parents seek to draw can legitimately be taken the Local Authority acceding to the parents’ wishes.  

34	I do note, as the next Tribunal should, that the parents did raise the problem of E’s fear of fear of disabled and SEN pupils after her unfortunate incident at B School.  This is in the papers at various places and is one of the reasons why they believe that the small school/small group setting at SJ School is necessary.  Whether this is a legitimate fear, and how (if at all) it affects the naming of a school is a matter for the new Tribunal.  The new Tribunal will also have to consider how the parents views that O Academy would under-provide for E’s SEN tallies with their selection of a mainstream independent school which has not in-house provision or specialism for SEN children. 

35	On the evidence as it now stands, the difference between the schools was about £6,500 (not £7500, as recorded in the decision.  That figure appears to be a slip.)  The parents’ arguments for ‘off-setting’ were, as explained earlier in this decision, wrong in law.  

36	The parties may wish to confirm with SJ School how much it would cost to make the provision set out in the SSEN by buying it in from outside.  The Local Authority’s supplementary submission at p709 indicates that, with the teaching assistant and transport, SJ School would cost £29,047 p/a as opposed to £22,674 for O Academy (a £6,373 difference), but this does not include all of the provision specified in the SSEN, for example specialist ASD advice and support on developing and implementing strategies for E’s autistic needs (SSEN paragraph 15), training of support staff by a suitable autism training provider (SSEN paragraph 17).  

37	The F-tT needs to address whether that difference constitutes unreasonable expenditure based on the advantages, if any, that SJ School has over O Academy.  

[Signed on original]		S M Lane
		Judge of the Upper Tribunal 
[Date]		20 November 2015