HS/1840/2010

DECISION OF THE UPPER TRIBUNAL
(ADMINISTRATIVE APPEALS CHAMBER)

Decision

1. This appeal succeeds. In accordance with the provisions of section 12(2)(b)(i) of the Tribunals, Courts and Enforcement Act 2007 I set aside the decision of the First-tier Tribunal (Health, Education and Social Care Chamber), sitting in London and made on 29th April 2010 under reference 09/02513. I refer the matter to a completely differently constituted tribunal panel in the Health, Education and Social Care Chamber of the First-tier Tribunal for a fresh hearing and decision. 

2. Before listing, the matter is to be referred to a Judge of the First-tier Tribunal for case management directions, taking account in particular of any pending or recent review. Without prejudice to those Directions, the parties should regard themselves as being on notice to send to the clerk to the tribunal as soon as is practicable any further relevant written evidence. The fact that the appeal has succeeded at this stage is not to be taken as any indication as to what the tribunal might decide in due course.

3. The parties are agreed that the decision of the tribunal was made in error of law, but for very different reasons from each other. It has been necessary to consider the principal legal arguments made on behalf of each party.

4. The respondent local authority had applied for permission to cross-appeal against the decision of the First-tier Tribunal but I saw no useful purpose in complicating matters in this way since I could in any event (and did) consider any relevant points of law that the authority wished to make. The First-tier Tribunal appears to have given the appellant limited permission to appeal, and to the extent necessary I give further permission in relation to the matters that I discuss below.
 
Hearing

5. I held an oral hearing of this appeal on 6th January 2011. The appellant (the father of the child in question) was represented by David Wolfe of counsel, instructed by Levenes, solicitors. The respondent local education authority (“the authority”) was represented by Fiona Scolding of counsel. I am grateful to them for their assistance.

Background 

6. The relevant child is a boy to whom I shall refer as “A”. He was born on 15th March 2003 and at the age of three was diagnosed as being autistic. He is a child with special educational needs and in respect of whom the respondent local education authority has maintained a statement of special educational needs, although I do not know when the first such statement was issued. The First-tier Tribunal stated that “He has experienced difficulties in all areas of his development, particularly in relation to his language skills and social interaction”. In December 2008 he started to receive a home based programme using Advanced Behavioural Analysis (“ABA”) and attended nursery on a part time basis. In September 2007 A began to attend a particular maintained mainstream primary school on a full time basis. From September 2008 he began to attend the school for 3 half days each week and for a while the ABA tutors also attended the school. This attendance pattern has continued and in addition A has received ABA at home for 30 hours weekly. His parents would like to continue with that pattern of attendance at that particular school but with home based ABA of 40 hours weekly for 50 weeks a year in addition to the school attendance. The First-tier Tribunal found that the total annual cost of such provision would be £46,358.

7. In 2009 the authority assessed or re-assessed A’s needs. Various reports were obtained and recommendations made, which were not always compatible with each other. It is not the role of the Upper Tribunal in this case to adjudicate between them or to resolve the conflicts, but to decide whether the First-tier Tribunal went about its task (which did include such roles) in a legally appropriate way.

8. In the new statement which seems to have been issued on or about 19th August 2009 the authority named a particular maintained special school which A should attend on a full time basis. There were about 124 pupils on the role, of whom over 50% had an autistic spectrum disorder. The First-tier Tribunal found that the total annual cost of attending this school would be nearly £23,800.

9. On 5th October 2009 A’s parents appealed to the First-tier Tribunal against the contents of the statement. That tribunal heard the appeal on 15th March 2010 and made its decision on 20th April 2010. It ordered amendments to the statement (with most of which I am not concerned) and decided that part 4 of the statement should name the maintained school on a full time basis with “a carefully planned transition programme in place leading to full time attendance … over a six month period”. ABA would continue to be delivered at home when A was not timetabled to be in school as part of the transition programme but the number of hours would decrease in proportion to the increasing number of school hours until the transition was complete, which would by the end of December 2010, at which point a further review would be necessary.

10. This decision displeased all of the parties. On 21st May 2010 A’s parents applied to the First-tier Tribunal for permission to appeal to the Upper Tribunal against the decision. On 21st May 2010 the First-tier Tribunal judge who had presided at the hearing gave permission to appeal stated to be limited to “whether the Tribunal were correct when considering section 319, to determine that a place for [A] at [the special school] was appropriate”. The wording of the limitation appears strange because relates to a stage in the tribunal’s reasoning rather then to its conclusion (which was, of course, that A should attend the mainstream school and not the special school) and I do not wish it to stand in the way of a proper consideration of the issues.

11. Notice of appeal was received by the Upper Tribunal on 27th July 2010 and on 2nd August 2010 I directed the parties to make written submissions. After receipt of such submissions I issued Directions on 30th September 2010 dealing with the matter of a cross-appeal and asking whether, since the parties all objected to the decision of the First-tier Tribunal, a consent order would be appropriate. This was not agreeable and on 7th October 2010 I directed that there be an oral hearing of the appeal. This took place on 7th January 2011. It is unfortunate that although none of these stages in the procedure has in itself taken an unreasonably long time, the cumulative effect is that it is now well over a year since the statement under appeal was made.

The Principal Relevant Legal Provisions

12. So far as concerns this appeal the following provisions of the Education Act 1996 are particularly relevant:

Section 9:	 In exercising or performing all their respective powers and duties under the Education Acts the Secretary of State and local keducation 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.

Section 316: 	(1) This section applies to a child with special educational needs who should be educated in a school.
(2) If no statement is maintained under section 324 for the child, he must be educated in a mainstream school.
(3) If a statement is maintained under section 324 for the child, he must be educated in a mainstream school unless that is incompatible with –
			(a) the wishes of his parent, or
(b) the provision of efficient education for other children.

Section 319: 	(1) Where a local education authority are satisfied that it would be inappropriate for - 
(a)	the special educational provision which a learning difficulty of a child in their area calls for, or
(b)	any part of such provision
to be made in a school, they may arrange for the provision (or, as the case may be, for that part of it) to be made otherwise than in a school.

(2) Before making an arrangement under this section, a local education authority shall consult the child’s parents.

Section 324: 	(1) If, in the light of an assessment under section 323 of any child’s educational needs and of any representations made by the child’s parents … it is necessary for the local education authority to determine the special educational provision which any learning difficulty he may have calls for, the authority shall make and maintain a statement of special educational needs.

	…
	(4) The statement shall – 
(a)	specify the type of school or other institution which the local education authority consider would be appropriate for the child, [and]
(b)	… specify the name of any school or institution … which they consider would be appropriate for the child and should be specified in the statement …

13. Schedule 27 to the 1996 Act provides in paragraphs 2 and 3 for parents to express a preference as to the particular maintained school at which education should be provided and to give reasons for that preference. Paragraph 3(3) provides:

Paragraph 3(3): Where a local education authority make a statement in a case  where the parent of the child concerned has expressed a preference in pursuance of such arrangements as to the school at which he wishes education to be provided for his child, they shall specify the name of that school in the statement unless – 

(a)	the school is unsuitable to the child’s age, ability or aptitude or to his special educational needs or
(b)	the attendance of the child at the school would incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources.

Section 316 does not affect the operation of paragraph 3 of Schedule 27 (section 316A(3)).

14. In MH v SENDT and London Borough of Hounslow [2004] EWCA Civ 770 the Court of Appeal said that the section 316 process only comes into operation where the Schedule 27 paragraph 3 process (if lawfully invoked) has been exhausted, that is where the parents’ choice of school has been lawfully rejected in accordance with paragraph 3(3)(a) or (b). If paragraph 3(3)(a) or (b) do not apply, the school named by the parents must be specified and the section 316 process does not come into operation. If the section 316 process does come into operation, it does not require the authority to name a particular school (rather then the type of school) but it does not prohibit it from doing so, and it ought normally do so. The parents have a right to express a preference for the purposes of section 316 that is separate from the right for the purposes of paragraphs 2 and 3 of Schedule 27.

15. In TM v London Borough of Hounslow [2009] EWCA Civ 859 paragraphs 26 and 27 of the Court of Appeal’s judgment (delivered by Lord Justice Aikens) set out the issues that have to be addressed before section 319 can be applied:

“26. The question that the local education authority has to address is, therefore, is it satisfied that it would be “inappropriate” for the special educational provisions of the particular child to be made in a school or not?  In answering that question it seems to me that it is not enough for the local education authority to ask simply “can” the school meet the statement of needs set out in part 3 of the section 324 … To confine the question thus does not, in my view, give proper scope to the words in section 319(1) … in conducting that exercise, or answering that question, if a local education authority is to give full effect to the word “inappropriate”, it has to see if a school would “not be suitable” or “would not be proper”. To do that, in my view, the local education authority has to take into account all the circumstances of the case in hand. These circumstances might include, without giving any exhaustive list (which must depend on the facts of the case) consideration of the following matters: the child’s background and medical history; the particular educational needs of the child; the facilities that can be provided by a school; the facilities that could be provided other than in a school; the comparative cost of the possible alternatives to the child’s educational provisions; the child’s reaction to education provisions, whether at school or elsewhere; the parents’ wishes; and any other particular circumstances that apply to a particular child.

27. That this exercise must include a consideration of the parents’ wishes … is clear … [but] parental wishes cannot be determinative, except in the very rare case where there are otherwise equally balanced alternatives for the child’s special educational needs”.

16. On an appeal the First-tier Tribunal stands in the shoes of the local education authority and in the above statutory provisions and in the extract from Lord Justice Aikens the words “First-tier Tribunal” can be substituted for the words “local education authority” or “authority”.

The Decision of the First-tier Tribunal

17. The First-tier Tribunal rightly took the view that section 319 must be considered (in the light of the above Court of Appeal decision) before looking at section 316, and that because section 319 refers to the inappropriateness of provision being made in “a” school, that really meant any school, including a special school. If, having taken all the relevant factors into account, it was decided that it was not inappropriate for provision to be made in a particular special school, then it was not appropriate to arrange for provision to be made otherwise than in a school. Having considered all the relevant factors, the tribunal in fact decided that it was not inappropriate for A’s needs to be met at the special school nominated by the local authority.  This might seem an odd approach, and the statutory question is not whether a particular school is appropriate, but I accept that in focussing on a particular school (and that might be the only school in relation to which there is evidence) the statutory question can be answered.

18. The tribunal then considered the application of paragraph 3 of Schedule 27 as it was required to do. A’s parents had expressed a wish for him to be educated at a particular maintained school. However, it took the view that as A’s parents wished education to be provided at a particular maintained school on a part time basis, paragraph 3(3) did not apply. I do not follow why the tribunal said this, but since the school preferred by the parents was the one eventually named, this apparent error did not affect the outcome.

19. Turning to section 316: having found in considering section 319 that A should be educated in a school, the tribunal found that the exceptions in 316(3) did not apply and that A should therefore be educated in the mainstream school nominated by his parents. It then decided that this should be on, or should develop into, a full time basis, as I have explained above.

The Parents Grounds

20. The essence of Mr Wolfe’s argument is that the parents wishing A to be educated partly in a mainstream school and partly by a package delivered at home is encompassed within the Act’s concept of education at a mainstream school. In such a case therefore section 316(3)(b) provides the only basis on which mainstream education could be refused, and in the present case the First-tier Tribunal found that section 316(3)(b) did not apply. If it is decided under section 319 that any provision should be made in a school, then section 316 applies. Once the section 316 exercise has been carried out, then section 319 must be considered again to decide whether part of the provision is to be made otherwise than in a school. Section 316(3)(b) requires that the parents be consulted again on this particular issue. The tribunal had failed to carry out this exercise or really appreciate that there are separate questions to be asked. In concluding that, because it was not inappropriate for provision to be made in a particular special school, then it was not appropriate to arrange for provision to be made otherwise than in a school, the tribunal had confused two questions which had to be addressed separately. What should follow from the conclusion that it was not inappropriate for provision to be made in a particular special school, is that it was not appropriate to arrange for all of the provision to be made otherwise than in a school. On the basis that I have set out in this paragraph, I agree with Mr Wolfe.

The Local Authority

21. Ms Scolding argued that the First-tier Tribunal was correct in its approach to the application of sections 316 and 319. However, in the present case the wishes of the parents were not for education in a school but for education at home with an element of co-location at school. Having concluded for the purposes of section 319 that it would not be inappropriate for A’s needs to be met at the special school, the tribunal should not have gone any further. Section 316 did not apply either because the parents were not actually seeking education in a school (although they thought they were) or because the amount of education that they were seeking in a school was so insignificant as not to count as seeking education in a school. The Department for Education and Skills 2001 Guidance on Inclusive Schooling indicated that a child had to be in mainstream education for at least 51% of the time in order to count as being in mainstream education.

I do not accept the analysis put forward by Ms Scolding. Education at home with an element of co-location at a school is education at a school, at least in part. There may well be a de minimis requirement for what is to count as attendance at a school, but the parents’ proposal here was for about 30% attendance and that was well above any de minimis threshold. The 2001 Guidance was designed to prevent local authorities from claiming that children with special educational needs were in mainstream education when in fact they were not. It had no relevance to the section 316 exercise and, as a matter of law, it could not provide authoritative interpretation of the statute.

Conclusions

In reality section 319(1) addresses two types of situation. One is in section 319(1)(a) where it is inappropriate for any provision to be made in a school. The other is in section 319(1)(b) where it is inappropriate for part of such provision to be made in a school. Having decided under section 319(1)(a) that it was not inappropriate for any of the provision to be made in a school, and having carried out the section 316 exercise, the tribunal should them have considered whether under section 319(1)(b) it was inappropriate for part of the provision to be made in a school. I am not suggesting that this must be done according to any particular formula or in a mechanistic way, but those making these decisions must be aware of the separate issues. In failing to do separate out the issues in this particular case, the decision of the First-tier Tribunal involved the making of an error of law and for that reason this appeal succeeds. 

H. Levenson
Judge of the Upper Tribunal 

3rd February 2011