Dudley Metropolitan Borough Council v Shurvinton & Ors

This is a second stage appeal, brought by leave granted by Pitchford LJ, from a decision of the Upper Tribunal (Administrative Appeals Chamber) dated 11^th February 2011. It involves a consideration of the relationship, in the context of special educational needs, between the provisions contained in Part IV of the Education Act 1996 as amended (“the 1996 Act”) and the provisions contained in Part IX of the 1996 Act relating to school transport.

It is said that the points arising are of general public importance. As may appear from what I say below I am not quite so sure that they are.

The background facts can be shortly stated and are these.

The respondents’ son, J, was born on 10 July 2005. He has a diagnosis of autism. Formal testing had not been possible but it was considered that J had moderate learning difficulties. He also had a degree of speech and language impairment. At pre-school he found it difficult to follow an adult led agenda and was described as living in his own world. He was described as happy and affectionate at home, although his behaviour was sometimes difficult. He had, at the relevant time, very little spoken language.

J had at the age of 4 begun a very gradual integration into reception class at a school called The Brier School, a special school for pupils with moderate learning difficulties and other more complex difficulties. He seemed happy there and his parents wished him to attend there. That was their preference, and they said so.

It seems that the appellant local authority has a policy on the provision of free transport from home to school to the effect that, for children with special educational needs, free transport is generally provided only to the nearest suitable school.

There is another local school called Halesbury School, also equipped to cater for those with special educational needs, which is some 1.1 miles closer than The Brier School to the home of J’s family. It was estimated that the extra costs of transport for J to The Brier School as compared to Halesbury School would be between £195 (shared transport) and £312 (individual transport) per year. It was not maintained that J could be expected to walk to either school.

The appellant provided a Statement of Special Educational Needs (“SSEN”) in respect of J dated the 7^th April 2009. In Part 4 of the SSEN (relating to Placement) the following was stated:

The parents appealed to the First Tier Tribunal (“FTT”) under s.326 of the 1996 Act against that decision. They sought a decision that Part 4 should specify The Brier School and no other school. One consequence of that, if upheld, would have been that the appellant would have been obliged to pay the costs of transporting J to The Brier School. The parents’ appeal also, it may be noted, related to other aspects of the SSEN: but those are not relevant for present purposes.

The appeal duly came before the FTT. The FTT upheld the parents’ appeal. It ordered, as to Part 4 of the SSEN, that the local authority should specify The Brier School (alone).

As part of their appeal, it is to be observed, the parents had argued that Halesbury School could not meet J’s needs. Having assessed the evidence, the FTT rejected that and expressly concluded that J’s needs could be met at Halesbury School and that it was an appropriate placement for him. The FTT then went on to record the local authority’s acceptance that The Brier School could also meet J’s needs; indeed he had a place there. It was recorded that “the barrier to acceding to parental preference was the costs of transport which, the LA says, would be an inefficient use of resources.” The FTT considered that it was reasonable for it to take account of other circumstances impinging on the issues of parental preference and efficient use of resources. The FTT balanced the difference in transport costs with all of the circumstances of J’s school attendance. It was found that J’s mother was unable to drive for medical reasons (his father apparently was at work at the relevant times of day). An “established communication peer group” at The Brier School was also assessed as being potentially a “very significant advantage” to J. The FTT concluded in this way:

An appeal was made by the appellant to the Upper Tribunal (“UT”). The grounds were much to the like effect as advanced in this court. A strongly constituted UT – comprising Judge Pearl, Judge Mesher and Judge Lane – dismissed the appeal by a detailed and thorough reserved decision dated 11^th February 2011.

It will be necessary in due course to refer to aspects of that decision. But to give it context it is convenient first to set out the relevant statutory provisions at this stage.

Section 9 of the 1996 Act is in these terms:

Part IV of the 1996 Act relates to children with special educational needs: defined in s.312. Section 313 provides for the issuance of a code of practice. Section 324 relates to the making and maintaining of a SSEN. In the relevant respects it provides as follows:

specify the type of school or other institution which the local education authority consider would be appropriate for the child,

if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement, and,

specify any provision for the child for which they make arrangements under section 319 and which they consider should be specified in the statement.

shall arrange that the special educational provision specified in the statement is made for the child, and

may arrange that any non-educational provision specified in the statement is made for him in such manner as they consider appropriate, and

Section 326 provides for appeals against the contents of a SSEN. In particular:

when the statement is first made,

if an amendment is made to the statement, or

if, after conducting an assessment under section 323, the local education authority determine not to amend the statement.

the description in the statement of the local education authority’s assessment of the child’s special educational needs,

the special educational provision specified in the statement (including the name of a school so specified),

dismiss the appeal,

order the authority to amend the statement, so far as it describes the authority’s assessment of the child’s special educational needs or specifies the special educational provision, and make such other consequential amendments to the statement as the Tribunal think fit, or

Paragraph 3 of Schedule 27 (which is headed “Choice of School”) is of particular importance for the purposes of this appeal. In the relevant respects Schedule 27 provides as follows:

on whom a copy of a proposed statement has been served under paragraph 2,

on whom a copy of a proposed amended statement has been served under paragraph 2A, or

on whom an amendment notice has been served under paragraph 2A which contains a proposed amendment about –

the type or name of a school or institution, or

the provision made for the child concerned under arrangements made under section 319,

the school is unsuitable to the child’s age, ability or aptitude or to his special educational needs, or

the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources.”

Part IX of the 1996 Act is the part which deals with the provision of transport. Section 508 B is, in the relevant respects, in these terms:

no travel arrangements relating to travel in either direction between his home and the relevant educational establishment in relation to him, or in both directions, are provided free of charge in relation to him by any person who is not the authority, or

such travel arrangements are provided free of charge in relation to him by any person who is not the authority but those arrangements, taken together with any other such travel arrangements which are so provided, do not provide suitable home to school travel arrangements for the purpose of facilitating his attendance at the relevant educational establishment in relation to him.

in the case of a child who is an eligible child by virtue of falling within any of paragraph 2, 4, 6, 9, 11 and 12 of Schedule 35B, the qualifying school (within the meaning of that Schedule) at which the child is a registered pupil referred to in the paragraph in question, and

in the case of a child who is an eligible child by virtue of falling within any of paragraphs 3, 5, 7, 10 and 13 of Schedule 35B, the place other than a school, where the child is receiving education by virtue of arrangements made in pursuance of section 19(1), referred to in the paragraph in question.

Schedule 35B (incorporated by s.508 B(9)) provides at paragraphs 2 and 6:

he is of compulsory school age and is any of the following—

Both before the UT and before us a number of other matters were common ground.

The first is that, so far as J and his parents are concerned, the issues had become, and remain, academic. By the time the matter reached the UT, the appellant had agreed (we were told pursuant to its powers under s508C) to pay J’s transport costs to The Brier School, where he was placed. However, the UT considered that it was appropriate to decide the issues raised, given their perceived general importance. Leave having now been given to appeal to this court, it would also hardly be helpful for us to decline to deal with the appeal on the basis that it was academic as between the parties: and that, moreover, notwithstanding that – as Mr Holland told us on the day of the hearing of this appeal – J and his family have apparently now gone to live in Australia.

Other matters accepted by Mr Holland on behalf of the respondent parents were as follows:

It is recognised that Part IX of the 1996 Act contains a separate statutory regime in respect of transport; and there is no right of appeal to a FTT under s.326 in respect of a decision made under s.508B and Schedule 35B (in Part IX). The remedy, if a challenge is made to a decision under Part IX, is to be sought by way of judicial review application to the High Court.

Transport, in itself, will not normally be an educational need for a FTT to consider.

A SSEN may properly name more than one school, with a condition that, so far as the parents’ preferred school is concerned, the parents are to be responsible for transport.

The written skeleton argument of Mr McManus QC (leading Mr Auburn) for the appellant extended to 96 paragraphs, and there was also detailed oral argument. But the essence of the appellant’s case (considerably foreshortened) is as follows:

(1) With regard to placement, parental preference is to be acceded to and the preferred school is to be named in the SSEN, under paragraph 3(3) of Schedule 27, unless the school is unsuitable or the attendance would be incompatible with the provision of efficient education for the children with whom he would be educated or with the efficient use of resources.

For his part, Mr Holland on behalf of the respondent parents in essence submitted as follows:

In specifying a school in a SSEN the local authority must have regard to parental preference, the suitability of the school and the efficient use of resources.

On an appeal, the FTT in effect stands in the shoes of the local authority: and there is no reason why the FTT should be required differently to determine the issues arising (or be prevented from determining such an appeal) simply because the local authority had specified more than one school, with the naming of the parents’ choice being conditional on them paying for transport.

Transport is capable of being a relevant factor when considering compatibility with the efficient use of resources: and is therefore a matter which the FTT had jurisdiction to consider.

If it were otherwise, the remit of the FTT would be irrationally weakened; and moreover an unsatisfactory and undesirable duality for challenges will develop, depending on whether or not the local authority have in addition to naming in the SSEN a nearer (suitable) school also named in the SSEN the parents’ preferred school but subject to them paying transport costs. In the one situation, if the appellant were right, an appeal lies to the FTT; in the other the remedy is only by way of judicial review application to the High Court.

We were referred to a number of authorities. However only one (a decision of the UT in another case) is on all fours with the point raised before us and I do not myself think it necessary to refer to all the authorities cited to us.

On one reading of the wording of the statute there might have been some issue as to whether more than one school may be named in Part 4 of a SSEN. But it has become established practice, and as is consistent with para 8.87 of the issued code of practice and as has been endorsed by authority, that more than one school may indeed be named in a SSEN, where one of them is named with a view to respecting the parents’ preference on condition of their paying the transport costs: see R v Essex County Council ex parte C [1994] ELR 54; [1994] ELR 273 (a decision under the Education Act 1981); R(M) v Sutton London Borough Council [2008] ELR 123; [2007] EWCA Civ 1205 (a decision under 1996 Act). I would add that, before us, there was raised in argument a point as to whether it could be appropriate or permissible that two (or more) schools could be so named without any condition attaching. The obiter observations of Sedley J in R v London Borough of Havering ex parte K [1998] ELR 402 at p.404 might indicate that was permissible. Since that point does not arise here for decision, I think it better to express no view on that.

Some authority in support of Mr Holland’s approach is perhaps to be found in the decision of Gibbs J in the case of Essex County Council v Sendist and S [2006] ELR 452; [2006] EWHC 1105 (Admin). There the court, on an appeal under s.326, clearly considered that regard could be had to the issue of transport costs in deciding, as part of the balancing exercise, whether a specified placement was compatible with the efficient use of resources. In the case of O v London Borough of Lewisham [2007] EWHC 2130 (Admin) Mr Andrew Nicol QC, sitting as a deputy Judge of the High Court, said this (albeit in a context not entirely the same as the present) at paragraph 40 of his judgment:

Mr McManus submitted that authorities such as R v Essex County Council (ex p. C) and the Sutton case did not purport to limit the use of dual wording to situations where there would otherwise be an incompatibility with efficient use of resources if parental preference was acceded to. That may be so: but the point did not arise for decision in those cases, although, as it seems to me, some of Moore-Bick LJ’s remarks in Sutton (at paragraph 19 and 20 of his judgment) in fact can be read, pace Mr McManus, as telling against Mr McManus’ present argument on jurisdiction. As to Essex County Council v Sendist Mr McManus, who accepted the correctness of that decision, also stressed that that was a case where suitability of the nearer school was very much in issue: and I agree that is a distinction (in the light of the findings here of the FTT) from the present case. Even so, it seems to me to underline how narrow an approach the appellant is advancing in this case: since the acceptance acknowledges - rightly in my view - that there are at least some circumstances whereby transport costs can properly feature for the purpose of Schedule 27.

Mr McManus also referred us, among other authorities, to a decision of Judge Ward, sitting in the UT, in the case of MH v Nottinghamshire CC [2009] UKUT 178 (AAC). There, in circumstances comparable to the present, Judge Ward held that the provision of transport is not educational provision; that there is nothing in the legislation (or authorities) which stipulates that the naming of a school in Part 4 of a SSEN carries with it the right to transport to that school; and that the FTT “does not have jurisdiction as such to order that transport be provided” (paragraph 8). The Judge went on to conclude that, once a nearer school had been assessed as suitable and had been specified accordingly, the FTT in that case “should have stopped there and by proceeding to rule on the relative transport costs the tribunal was straying beyond its jurisdiction and was thereby in error of law”: see paragraph 15 and 17. He indicated (presumably having in mind the Essex County Council v Sendist case) that had it been the case where the local authority was overriding parental preference then a comparison of costs, including transport, would have been necessary: but it was not. The tribunal thus, as he decided, had had no jurisdiction to consider transport costs when all other matters had been determined.

That authority is directly in point for present purposes and lends support to Mr McManus’ argument (indeed the argument presented by Mr Auburn in the MH case corresponds to the argument advanced by Mr McManus, leading Mr Auburn, in this case). However it is, of course, not a decision binding on us. Moreover the appellant parents in that case were not legally represented and so Judge Ward did not have the benefit of full adversarial argument.

In the present case the UT ([2011] UKUT 67 (AAC)) decided not to follow the decision of Judge Ward in MH. The UT set out the relevant statutory provisions. Having made some highly pertinent observations in paragraph 34 of its decision the UT said this in paragraph 35:

The UT went on to accept that the decision of Gibbs J in the Essex County Council v Sendist case had been a case of the local authority overriding parental preference; but stated that it was not authority for the proposition that that was the only situation in which consideration of efficient use of resources could arise. So far as the decision of Judge Ward in MH was concerned, the UT considered that it should not be followed. The UT concluded that the FTT had thus been “entitled and obliged” to consider the potential incompatibility of attendance at The Brier School, on the basis of the local authority having responsibility for transport costs, with the efficient use of resources. The decision of the FTT, which had weighed the advantages of attendance at The Brier School against the relative costs, was that it would not be an inefficient use of resources. Thus the FTT was entitled to direct that only The Brier School be named in Part 4, even though Halesbury School had also been assessed as suitable.

For my part I am in no real doubt that the UT reached the right conclusion: and did so (subject to one reservation expressed below) for the right reasons. Accordingly, and intending no disrespect to the very detailed arguments we received, I would propose to deal with the matter quite shortly.

As I see it, two very strong objections to the whole approach of the appellant can be noted at the outset.

The first is that Mr McManus’ argument necessarily proceeds on the footing that there was no relevant contest between the parents and the local authority and there was no overriding of parental preference. Indeed he went so far as to submit that the original decision of the appellant, in completing Part 4 of the SSEN on placement as it did, was “favourable” to the parents. He said that both schools were thereafter assessed by the FTT as suitable and the appellant had indeed (by including The Brier School) specified the parents’ preferred school in Part 4 of the SSEN: that being the starting point for his further argument that purported analysis of comparative resources then related only to the provision of free transport: which, the argument went on, was not of itself a matter of educational provision for the purposes of s.324(5) or for the purposes of s.326(IA).

That, in my view, is simply an incorrect starting point. There was, and continued to be, a contest as to placement. J’s parents wanted the name of The Brier School to be specified. The appellant wanted to specify the name of Halesbury School: but was prepared also to specify in Part 4 the name of The Brier School (accepted as suitable) on the stated condition that the parents pay for transport. That result does not truly reflect the parental preference as to the school at which they wished education to be provided to J. It is wrong, in my view, to present this kind of case as one where the only remaining issue was transport costs and where there was no continuing issue as to placement. There was; and that remained so notwithstanding that both schools were assessed by the FTT as suitable.

Although Mr McManus did not accept the point put to him in argument by the Master of the Rolls that his approach was one of form over substance, in my view it is form over substance. What is the dividing line between the local authority saying: “No, we will not specify the name of your preferred school, unless you pay the transport costs” and “Yes, we will specify the name of your preferred school provided you pay the transport costs”? In truth there is a contest as to the school to be specified. That that is so is, to my mind, confirmed by the following consideration. A condition as to transport costs of the kind imposed here may be one which parents are simply not able to meet. But if they are not able to meet it then on any view the child will not be able to attend the school of parental preference. Parental preference will thus have been denied. I think that also tells strongly against Mr McManus’ starting point. I find it difficult to see a principled basis, as a matter of statutory interpretation, for saying that a dual worded placement contained in Part 4 of a SSEN of the kind used in the present case is or is not a matter of educational provision, depending on whether or not the parents are able to pay the transport costs or otherwise arrange the transport.

Thus, in my view, such a contest is as to placement and does relate to a matter of educational provision. As such, it is within the ambit of s.326(IA)(b) of the 1996 Act.

There is a further, though related, objection. Mr McManus did not dispute that the FTT in effect “stands in the [local authority’s] shoes, reevaluating the available information in order if necessary to recast the statement”: see per Sedley LJ in Bromley LBC v Special Educational Needs Tribunal [1999] 3 All ER 587 at p.594. But in the present case, in completing Part 4 of the SSEN as it did, the appellant here was giving effect to its policy regarding the payment of transport costs. That self-evidently, to my way of thinking, brings into play factors of efficient use of resources. In such circumstances it was inevitable that, in evaluating the available information, the FTT – standing in the shoes of the appellant – would need to have regard to that. As the FTT itself rightly noted: “The barrier to acceding to parental preference is the cost of transport which, as the LA says, would be an inefficient use of resources”. That was the reality: and that is why the FTT necessarily engaged in the comparative exercise – the advantageous circumstances of J’s attendance at The Brier School set against the difference in costs between naming Halesbury School and naming The Brier School.

As the UT crisply put it at paragraph 39 of its decision:

I therefore would reject Mr McManus’ argument to the effect that the reality was that the FTT had purported to deal with a “naked” transport issue (as he put it), properly falling only within Part IX of the 1996 Act. I think the reality is the opposite: the FTT was necessarily dealing with a matter of educational provision as to which school was to be specified in Part 4 of the SSEN, having due regard to paragraph 3(3) of Schedule 27 for that purpose. It cannot be disputed that The Brier School (alone) was the parental preferred choice. By virtue of paragraph 3 of Schedule 27 the name of that school had to be specified unless, among other things, attendance of J at that school would be incompatible with the efficient use of resources. It is contrary to the approach adopted by the appellant itself, in completing Part 4 of his SSEN, and it is contrary to the wording of paragraph 3(3)(b) of Schedule 27 to remove the cost of transport from the reach of the consideration by a FTT on the issue of incompatibility with the efficient use of resources.

In my view, therefore, the acceptance of jurisdiction by, and the approach of, the FTT and of the UT is not, pace Mr McManus’ submissions, contrary to the wording of s.326(IA) or paragraph 3 of Schedule 27. Mr McManus in fact also complained – as a further variation on his original theme – that the UT, at a later stage of its decision, found that the specification in Part 4 of the SSEN had not given “full effect to the parental preference, which was for The Brier School to be specified alone and unconditionally….”. He said that this was a new concept, which misconstrued the concept of parental preference, did not fit well with the decision in Sutton and was not borne out of the statutory provisions. He said that it operated to collapse the distinction between preference as to placement and transport. As will be gathered, I do not agree with this at all. In my view, the UT’s remark accords both with the reality of the position and with the statutory scheme.

It may well be, of course, that the decision that the name of The Brier School (alone) be specified in Part 4 of the SSEN has the consequence that the appellant must pay the transport costs (by reason of s.508B). But that is no reason for not giving paragraph 3(3) its proper effect. The consequence arises just because, after weighing the relevant factors, the balance has come down in favour of specifying the name of a school – the parents’ preferred school – which is not the nearest school.

Mr McManus submitted that such a conclusion would undermine or wrongly restrict the now quite common use of dual wording in Part 4 of a SSEN (of the type deployed in the present case). I do not see why it should. If consideration of the efficient use of resources, including transport costs, justifiably tells against the school of parental choice then – as the UT in effect pointed out in paragraph 43 of its decision – the practice (whereby that school is named with a condition as to transport costs imposed) continues to have real value. And if in any given case such a statement by a local authority is justifiable on grounds of incompatibility with efficient use of resources then FTTs can be trusted to uphold the local authority’s statement if there is any challenge on appeal.

I appreciate, of course, that questions of jurisdiction cannot be decided by consideration of convenience. But this conclusion not only accords with the statutory provisions it also gives rise, in my view, to a thoroughly sensible result. Disputes of this kind are much better decided through the relatively quick and informal procedures available within the tribunal system and where the tribunals are specialist: and it is sensible that such tribunals are available to decide disputes of the present kind.

For these reasons I would uphold the UT’s decision and its reasoning, save for one matter. I do have reservations as to the reasoning of the UT in paragraph 42 of its decision, in formulating a second stage of the required process. The general principle set out in s.9 of the 1996 Act does not have primacy, as it were, over the specific provisions of paragraph 3 of Schedule 27. As stated by Lord Slynn (with whom the other members of the House of Lords agreed) in B v Harrow LBC [2000] 1 WLR 223 at p.229:

However, that reservation does not affect the outcome of this case. The reasoning and approach of the UT in paragraphs 40, 41 and 43 of the decision in my view is correct and is conclusive on the point arising in this case. In my view, the FTT therefore had been justified in weighing the transport costs involved in sending J to The Brier School as part of the matters requiring consideration under paragraph 3 of Schedule 27 to the 1996 Act; its conclusion that a decision to specify the name of The Brier School in Part 4 of the SSEN would not constitute an inefficient use of resources was properly open to it; and the UT’s decision that the FTT had jurisdiction under s.326 so to decide, and that the FTT’s conclusion involved no error of law, was correct.

I therefore would dismiss the appeal.

I agree.

I also agree.