The principle of parental preference and school placements

On 20 April 2022 the Upper- Tier Tribunal for Special Educational Needs and Disability confirmed in London Borough of Croydon v K.A. [2022] UKUT 106 (AAC), the importance of having a broader and more holistic approach to the application of Section 9 of the Education Act 1996 and consideration of what constitutes unreasonable public expenditure.

What does Section 9 of the Education Act 1996 state?

Section 9 states that pupils are to be educated in accordance with parents’ wishes and that “In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State and local 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.”

The appeal

The appeal in London Borough of Croydon v K.A., concerned a 13 year old pupil (named as “J”) who has a diagnosis of severe bilateral spastic quadriplegia form of Cerebral Palsy. J is non- verbal, doubly incontinent, non-ambulant and a full-time wheelchair user who requires hoisting for all transfers during the day, along with serious respiratory problems and profound multiple learning difficulties. J is reliant on adults for all of his personal and mobility needs.

J’s parents appealed to the First- Tier Tribunal (Special Educational Needs and Disability), for a 52 week school placement to be named in J’s EHCP that was approximately £70,000 more annually, than the preference of the local authority.  Both parties agreed that the placement was suitable for J but the concern raised by the local authority was in relation to the cost differential, and that from the local authority’s point of view, this was unreasonable public expenditure because it had a suitable placement for J, that was able to meet needs at a lesser cost.

J’s parents argued that the First-Tier Tribunal (Special Educational Needs and Disability) should look at the additional benefits of their preference and what it could offer J, and that those additional benefits would outweigh total public expenditure, not just in relation to education but also in relation to health and social care costs.

The First-Tier Tribunal (Special Educational Needs and Disability) agreed to name J’s parents’  preference of placement. This was because it decided that on balance, the healthcare benefits to J attending the preference would substantially outweigh the cost differential of the placement and as such would not be considered to be unreasonable public expenditure.

The local authority appealed this decision to the Upper-Tier Tribunal on the basis that the First-Tier Tribunal had taken too wide of an approach to the range of factors that it was entitled to consider with the balancing exercise of Section 9 of the Education Act 1996.  The local authority argued that the tribunal should be looking at just the educational benefits to a child and that Section 9 does not mention health or social care factors.

What was the outcome of the appeal?

The Upper-Tier Tribunal confirmed that the educational, healthcare and social advantages of a school placement should be weighed against the educational, healthcare and social costs on the other side of the scales when carrying out the Section 9 balancing act for the purposes of placements in EHCPs.

The Upper-Tier Tribunal explained that this confirmed the authority that had been set by K v Hillingdon LBC (SEN) [2011] UKUT71 (AAC), which previously explained that all such benefits should be taken into account. As such, the Upper-Tier Tribunal dismissed the local authority’s appeal.

What does this mean for future appeals?

This decision appears to widen the scope available to parents when considering whether a placement has additional benefits that outweighs the cost of public expenditure, not only in an educational context but also in relation to health and social care.

This is to reflect the reality that some individuals have needs that are not distinctly educational needs, but do still have an impact on their education. A higher cost of placement does not necessarily make it unreasonable public expenditure.  

If you require any advice on education or would like to discuss the details in this blog further, please contact Kimberley on 01245 453803 or kimberley.hircock@birkettlong.co.uk.