Slough Borough Council v Special Educational Needs and Disability Tribunal & Ors

This appeal raises a question as to the correct construction of section 9 of the Education Act 1996. This provides that:

The appellant (“the Council”) challenges the decision of the First Respondent (“SENDIST”) dated 19^th September 2008 which specified

Simran Suri is a girl born on 15^th March 1999 with cerebral palsy. As a result of microcephaly she has triplegia and global developmental delay impacting her physical communication, visual, cognitive and playing skills. The Council has maintained her Statement of Educational Needs since July 2002.

The second and third Respondents (“Mr and Mrs Suri”) are her parents. They consider that Suri’s welfare can best be advanced by her placement at the PACE Centre, an independent non-maintained school in Aylesbury, Buckinghamshire which provides specialised training by conductive education for infants and children with motor disorders such as cerebral palsy, by means of “conductive education”. The PACE Centre provides education incorporating emotional, intellectual and academic learning by the use of sensory techniques as well as pedagogy. For instance, the day begins for Simran with a sage bath and continues with her treatment by a limited number of carers or teachers who assume responsibility for her upbringing. Simran has been attending the PACE Centre since April 2001, when she was not yet two. Her parents state that she has made the most exceptional progress at the PACE school and they fear that her removal to another school would be very much contrary to her interests.

In accordance with section 9 of the Education Act 1996 SENDIST had to consider whether Simran’s continued education at the PACE Centre was compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure. This entailed comparing the expenditure entailed by her continued education at the PACE Centre with the expenditure that would be entailed by her education at the Arbour Vale School. By its decision of 7^th November 2007 SENDIST reasoned that the total maximum annual marginal cost of continuing with Simran’s’ education at the PACE Centre would be £19,360. But since Mr and Mrs Suri want Simran to continue at the PACE Centre for as long as possible, and the PACE Centre were prepared to care for her until the age of 13, that would involve 8 years’ treatment there, during which period costs would rise. It reasoned “Therefore we have concluded that Arbour Vale School should be named in Part 4” of Simran’s statement.

Mr and Mrs Suri applied to SENDIST for review of its decision on the ground, among others, that:

The Council stated that evidence about the any willingness on behalf of the PACE Centre Trust to contribute towards the costs involved was not sufficient to enable it to agree to make joint funding arrangements with Simran’s parents. The Council continued to believe that Arbour Vale School could meet Simran’s needs.

These were the circumstances in which SENDIST agreed to review its decision of 7^th November 2007. The review was confined to the issue of placement costs and funding arrangements. The Council reasoned that there was an existing pre-funded place at Arbour Vale School for which the only additional cost to the local education authority, entailed by Simran’s attendance, would be £4161 for additional support, excluding therapy costs at £35 per hour.

Mr and Mrs Suri, on the other hand, calculated that the additional cost to the Council would be £15,219: the largest single element in the difference between their costing and that of the Council was the sum of £9161 which would be needed to cover 50% of the full-time costs of a specialist teaching assistant.

SENDIST proceeded on the basis that the total cost of a placement at Arbour Vale School was £32,490 “based on the cost of therapies, compared to the normal total cost of £36,000 at the PACE Centre.” On this basis it considered that “the difference in cost between the two placements is not overly significant for the next 2 years in any event”. However the PACE Centre had offered to place Simran for only £10,000 per annum and taking account of the upheaval that a move to the Arbour School would present to Simran, this represented good value for money. Accordingly SENDIST amended its decision.

Against that amended decision the Council now appeals.

Section 348(2) of the Education Act 1996 which provides that the conditions prescribed in subsection (1) are met (as is the case with Simran)

Mr Hyams, for the Council, submitted that in the present case the fees payable in respect of Simran’s education amounted to £36,000. His submission reflected the position long maintained by the Council, in the person of its Head of Services for Children with Learning Difficulties and Disabilities, Jackie Wright.

By letter dated 5 August 2008 Ms Wright maintained that what was on offer from The PACE Centre was “a joint funding arrangement between the LA and the parents and this [ie £10,000] cannot be considered as the full cost of the placement for Simran”. She wrote “the LA will not use its discretionary powers to make a joint funding arrangement for Simran” and that “joint funding arrangements fall outside the remit of the SEN and Disability Tribunal”. She stated “While Mr and Mrs Simran’s independent supporter has indicated that the total cost of the placement is £10,000 per annum this is incorrect.

By an exchange of letters dated 3 October 2008 Ms Wright had asked the PACE Centre

Ms Wright responded, on 7 October 2008, stating

In evidence to SENDIST Ms Wright stated as follows:

I accept that if SENDIST had accepted Mrs Wright’s evidence it would have had to conclude that it was confronted with a part-funding arrangement, whereby the total cost of Simran’s education remained at £36,000. Under the agreement £26,000 was to be paid by charitable donations made following an appeal by the parents through the local press and other fund-raising events. The fact that SENDIST allowed the appeal suggests that it did not accept the characterisation of the arrangement given in Ms Wright’s statement.

Although Ms Wright characterises the offer made by The PACE Centre as an offer for “part funding”, the PACE Centre, in the correspondence shown to the Court, never uses that term.

The position of The PACE Centre is conveniently explained in a letter signed by its Director, Heather Last, and addressed “To whom it may concern”. This letter, although undated, was placed before SENDIST. It reads as follows:

It appears from this letter that the trustees of The PACE Centre decided to offer to continue Simran’s education, for two years, for an annual fee of only £10,000, in recognition of the past services of Simran’s parents to the trust. That is why the letter speaks of “he famil[y’]s commitment to fundraising and their success to date” and “their commitment to fundraising for The PACE Centre over a number of years”. No particular value was placed on those past services, nor was the value of those services set against Simran’s fees. In relation to these past services there was no joint funding arrangement. This is consistent with Mr Suri’s statement [paragraph 6 above] that the trust was to contribute £9000 towards Simran’s placement costs.

I accept that questions are provoked by the reference to Mr and Mrs Suri’s “current success in raising a substantial amount towards Simran’s fees”. If this amount were to constitute part payment of Simran’s fees for the years 2008-9 and 2009-10, it would disclose a part-funding arrangement; and the amount so contributed ought properly to have been added to the fee of £10,000, in assessing the whole of the fees to be charged for Simran’s education. Unless it had been satisfied that no part of the funds raised by Mr and Mrs Suri were to be applied in reduction of the net fee to be paid for Simran, SENDIST could not have concluded that the fee to be paid was the sum of £10,000.

Ms Wright is however correct in stating, in her letter to the PACE Centre dated 3^rd October 2008, that joint funding arrangements between parents and local authorities are prohibited by the terms of the Education Act 1996. Subsection 348(2) of that Act provides that where that section applies

Even if one discounts Ms Wright’s expressed fear that private providers of educational and health care for children will “trim” their statements of the fees until they are “the same or less than that which the local authority would otherwise have to pay”, there would be substantial objections to a fee-sharing arrangement concluded between parents and local authorities. It that were permitted, parents of children with disabilities would be placed under pressure to pay as much of the fees of a maintained school that they could afford – or even more than they could afford – in order to reduce the charge to the local authority below the level of comparable .education at an independent non-maintained school. Had I been persuaded that SENDIST erred in failing to detect a joint funding arrangement in the present case and that this error might have made a difference to the outcome of the case, I would have allowed this appeal, notwithstanding the powerful evidence showing that a change in schooling for Simran at the present stage would be contrary to her interests.

I doubt, however, that any such error on the part of SENDIST could have affected the outcome of the appeal at all. At paragraph N of its decision SENDIST concluded that the difference between the cost of educating Simran in the PACE Centre and educating her at Arbour Vale School, over a period of two years, was not significant. It stated:

Neither Mr Hyams nor Mr Friel could explain how it was that SENDIST calculated that the total cost of a placement at Arbour Vale School was £32,490. It is possible that SENDIST reached this sum by adding the costs of PLMD4 a banding (£4161); ½ specialist teaching assistant; (£9660); occupational therapy; (£1365) speech therapy; (£1365) physiotherapy (£1365) and the annual cost of Arbour Vale School divided by the number of pupils. If that is right it would justify comparison with the PACE Centre’s figure of £36,000 although it would be inapt as a means of calculating the marginal cost to the Appellant of placing Simran at the PACE Centre, because the annual cost of Arbour Vale School would have to be met with or without Simran’s placement there.

I was urged by Mr Hyams to conclude that the failure to explain the figure, alternatively the methodology used in the calculation of the figure, disclosed an error warranting the return of the case to SENDIST for proper determination. I do not think it right to do so. The standard to be expected of tribunals when giving decisions was defined by Sir Thomas Bingham MR (as he then was) in Meek v City of Birmingham Council, [1987] IRLR 250. He said that such a decision: