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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> KL v Worcestershire County Council & Ors [2000] EWHC Admin 303 (15 March 2000)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2000/303.html
Cite as: [2000] EWHC Admin 303

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Case No: 1999/1252/C

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL QUEEN'S BENCH DIVISION
CROWN OFFICE LIST (CARNWATH J)
Royal Courts of Justice
Strand, London, WC2A 2LL
Wednesday 15 March 2000
B e f o r e :
LORD CHIEF JUSTICE
Of England & Wales (Lord Birmingham of Cornhill)
LORD JUSTICE PILL
and
LADY JUSTICE HALE


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KL

- v -



(1) WORCESTERSHIRE COUNTY COUNCIL
(2) ROSEMARY HUGHES
(CHAIR OF THE SPECIAL EDUCATIONAL NEEDS TRIBUNAL)



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Richard Gordon QC & Nicholas Bowen (instructed by Rust Moss & Co., 48 Blackburn Road, Accrington, Lancashire, BB5 1LE) for the appellant
David Wolfe (Mr J Moffatt 15.3.00)(instructed by Simon Mallinson, Head of Legal Services, Worcestershire County Council, County Hall, Spetchley Road, Worcestershire, WR5 2NP) for the respondents

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Judgment
As Approved by the Court
Crown Copyright ©

LADY JUSTICE HALE:
1. This is the judgment of the Court.
Facts
2. K was born on 1 June 1990. She has cerebral palsy, which affects her fine and gross motor movements. She also has Turner's Syndrome which results in small stature. Because of these physical disabilities she has special educational needs. Her mother wishes her to go to A Manor School which is a small private special school. The Special Educational Needs Tribunal has decided that she should go to a mainstream day school which is able to provide her with appropriate education, access and support. There is no challenge in this appeal to the tribunal's finding that each of these solutions was appropriate to K' needs. The issue is whether the tribunal took the right legal approach to her mother's wishes.
3. K attended C School, a maintained special school, from January 1994. A statement of her special educational needs was originally issued by the Local Education Authority (LEA) in May 1996 naming C School. Her mother appealed against this because she had already arranged for K to go to A Manor School. In March 1997 the tribunal found that C School was not appropriate and ordered that A Manor Schoolbe named in the statement. The LEA's appeal succeeded in the Court of Appeal: see Richardson v Solihull Metropolitan Borough Council [1998] ELR 319. The LEA argued that K did not need a 24 hour regime and that to order them to pay for it would not be an efficient use of their resources. Even if C School was not appropriate it did not follow that A Manor Schoolhad to be substituted.
4. Accordingly the case went back to the tribunal for rehearing. Meanwhile K remained at A Manor School. The tribunal heard the case de novo, unusually giving leave for three witnesses on each side. They accepted a proposed amended statement drawn up in November 1998 as a working document for the hearing. This proposed that K should attend a 'day school able to provide physical and curricular access and appropriate support for children with physical difficulties.' The LEA put forward two mainstream schools, St Peter's and St John's, and a maintained special school for children with physical handicap, Rosehill. The cost of placement at St Peter's or St John's was £15,430, at Rosehill it was £18,418, while at A Manor Schoolit was £44,044.
5. The tribunal's decision was given on 23 February 1999. They prefaced their conclusions thus:
"A. The Tribunal carefully considered the parties' submissions and the evidence we heard, and took into account the written evidence which had been submitted. Although we had rejected Mrs L's statement in written form, we allowed her to read it to us in full and we were grateful for her contribution.'
They concluded that K did not need either the conductive education or the extended school day provided at A Manor School. She did need physiotherapy but that could be provided for in an amended statement as could other requirements to meet her physical disabilities. As to the choice of school they said this:
"I. In considering a suitable placement for K, we were conscious that she is settled at A Manor Schooland that a change of school would not be welcomed by her mother. We were obliged, however, to consider her statement, amended as decided, and we now conclude that K' special educational needs could now be adequately met in a suitably adapted mainstream junior school, such as St Peter's. There was, in our view, no evidence to compel the requirement for residential education and we were concerned at the amount of travelling that K currently undertook each week. We did not have sufficient evidence before us to judge whether or not St John's could meet her needs. We were clear that Rosehill School would not be suitable for K because of the lack of an appropriate academic peer group.
"J. We took into account the provisions of section 9 of the Education Act 1996 insofar as parental choice of school is concerned. In view of the figures given . . . above, we could not accept that a placement at A Manor School would be a reasonable use of public resources.

"K. We understood that a placement at a junior mainstream school would not be available until September 1999 because of K' age and we therefore concurred with the LEA's view that she should stay at A Manor School for the summer term in order to avoid too many changes. We would urge the LEA to consider very carefully the transitional arrangements to be made for K starting at a mainstream school; we are particularly aware of her small stature and physical vulnerability. We were satisfied by Mr Mitchell's evidence that in the case of St Peter's, appropriate modifications to the school buildings had been made and resources supplied. We were confident that the SENCo-ordinator there would work closely with the therapists and Mrs L to ensure that K would make full use of the challenging environment of a mainstream school with good role models and an appropriate academic peer group. We are sure that K has the capacity to adapt to this form of inclusive education and that with the support and co-operation of her mother, her achievements can be celebrated both at school and at home."

6. K' mother exercised her right under s 11 of the Tribunals and Enquiries Act 1992 to appeal to the High Court on a point of law. Most regrettably steps were not quickly taken to expedite this. On 6 October 1999 Carnwath J dismissed the appeal. K has been out of school since 20 October 1999 when the LEA stopped paying the fees. Four points were taken before the judge but only one is pursued in this court. Essentially this is how the LEA and tribunal are to treat parental wishes in cases such as this where the child has special educational needs and the parent wishes that child to attend a private, non maintained special school, which is very much more expensive than the state-provided alternatives.
The relevant statutory provisions
7. It may be helpful to set out the relevant statutory provisions in the order in which they appeared upon the statute book, although all have been consolidated in the Education Act 1996, because Mr Gordon QC for the mother is anxious that we should see how the law on parental choice has developed since the Education Act 1944. Section 9 of the 1996 Act is in essentially the same terms as the familiar provision in section 76 of the 1944 Act:
'In exercising all their respective powers and duties under the Education Acts, the Secretary of State, local education authorities and the funding 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.'
Equally familiar is the interpretation given to that section in Watt v Kesteven County Council [1955] 1 QB 408, CA, by Denning LJ at p 424:
'Section 76 does not say that pupils must in all cases be educated in accordance with the wishes of their parents. It only lays down a general principle to which the county council must have regard. This leaves it open to the county council to have regard to other things as well . . . It cannot, therefore, be said that a county council is at fault simply because it does not see fit to comply with the parent's wishes.'
That case concerned children who did not have special needs but whose father wished them to attend an independent Roman Catholic school. The case of C v Buckinghamshire County Council [1999] ELR 179, CA, concerned a child with special educational needs whose parents wanted him to remain at an independent boarding school. It was held that section 9 applies just as much to such children as it does to others. At p 185E, Sedley LJ said this:
"I see nothing either in Part IV [of the 1996 Act] or in s 9 to suggest that the general principle that children are to be educated in accordance with the wishes of their parents is intended to be disregarded in relation to children with special educational needs. It is, as has been seen, superseded by a potentially more onerous duty in special educational needs cases where the expressed preference is for a school in the state sector; but this makes it more likely, not less, that where the parental preference is for a school in the independent sector, the background obligation spelt out in s 9 is intended to remain in play."
8. That 'potentially more onerous duty' was first introduced for children without special educational needs by the Education Act 1980. As explained in a Department for Education Consultation Paper, Special Educational Needs: Access to the System in 1992, 'Parents have been given the right to express a preference as to the LEA maintained school they wish their child to attend, and the LEA and the school governors have to comply with that preference, subject to conditions such as the availability of places.' Dissatisfied parents could appeal to a local appeal committee whose decision would be binding upon the LEA. The relevant provision is now contained in section 411 of the 1996 Act. This does not apply to children with special educational needs: see section 424(3). However it is argued that it is an indication of the intentions of Parliament when it came to legislate about such children.
9. Section 411(1) requires the LEA to make arrangements for parents to express a preference. Section 411(2) imposes a duty to comply with that preference. Section 411(3) provides that this duty does not apply if compliance with the preference would prejudice the provision of efficient education or the efficient use of resources (or certain other exceptions, which are not relevant here, arise). Hence an LEA or appeal committee which does not comply with the parental preference must first establish that one of the exceptions applies. Even if it does, the parental preference remains relevant. In R v South Glamorgan Appeals Committee, ex parte Evans, unreported 10 May 1984, Forbes J explained it thus:
"[What is now paragraph 11 of Sch 33 to the 1996 Act] makes clear that that is not the end of the matter because the committee must have regard to parental preference in the arrangements for the admission of pupils. Curiously enough, the paragraph does not mention the question of prejudice, but it seems clear to me that in embarking upon an appeal, the appeal committee has not merely to decide whether there would be prejudice; it has to embark, if it decides there is prejudice, on the balancing exercise of whether the degree of prejudice is sufficient to outweigh what I will call the parental considerations . . . "
This approach was approved by Woolf LJ in R v Commissioner for Local Administration, ex parte Croydon London Borough Council [1989] 1 All ER 1033, at p 1041j to 1041a:
'If, however, an appeal committee comes to the conclusion that efficiency would be prejudiced by complying with that preference, then the appeal committee must proceed to the second stage and decide how to exercise its discretion, by weighing up the advantages which would be achieved by complying with the preference as against the prejudice this would cause.'
It is, however, worth noting that Forbes J based his acceptance that parental preferences remained relevant even after the duty to comply with them had been disapplied upon other provisions in the legislation rather than on what later became section 411 of the 1996 Act.
10. A comprehensive new scheme for the education of children with special educational needs was enacted in the Education Act 1981. This introduced a process of multidisciplinary assessment of special needs which may result in a formal 'statement' of those needs and the provision to be made to meet them. This process requires that account be taken of the parents' views. The 1981 Act also introduced the duty, in section 2(2), provided that certain conditions set out in section 2(3) were satisfied, to secure that children with special educational needs were educated in ordinary schools, an approach known as 'mainstreaming'. The 1981 Act did not, however, introduce any new provisions enhancing parental choice of school.
11. This was done by the Education Act 1993. As explained in the 1992 Consultation Paper referred to above, 'The Government proposes to give parents of children with statements of special educational needs a similar legislative right to state a preference for their child's school as other parents. They would be able to state a preference as to the school from the maintained sector to be named in the statement, and the LEA would be required to comply with that preference, provided that certain conditions were met.' The 1993 Act introduced a right of appeal to the Special Educational Needs Tribunal, both from the refusal of an LEA to make a statement and from the contents of any statement made. Amendments to the statement are binding upon the LEA.
12. These provisions were also consolidated in the 1996 Act. Section 324 deals with statements of special educational needs: the focus upon the child's needs is clear from section 324(1) and (3):
"(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 parent in pursuance of Schedule 27, 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 his special educational needs.

....
"(3) In particular, the statement shall-

(a) give details of the authority's assessment of the child's special educational needs, and

(b) specify the special educational provision to be made for the purpose of meeting those needs...."
Section 324(4) prescribes its contents thus:
"(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,
(b) 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......'
Section 324(5) imposes a duty upon the LEA to make the provision described in the statement unless the child's parent has made suitable arrangements.
13. It will be seen that the LEA only have a duty to specify a particular school under section 324(4)(b) if they consider that it would be appropriate for the child and should be specified in the statement. But they may be required to specify the name of a school under Schedule 27, which deals with the process of making and maintaining a statement including the procedure for enabling parents to express a preference. Paragraph 3(1) and (3) provide as follows:
"3(1) Every local education authority shall make arrangements for enabling a parent on whom a copy of a proposed statement has been served under paragraph 2 to express a preference as to the maintained, grant-maintained special school at which he wishes education to be provided for his child and to give reasons for his preference.

. . .
"(3) Where a local educational 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 be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources."
Once again, this provision does not apply in this case, as the preference expressed is for a private school and not for a 'maintained, grant-maintained or grant-maintained special school.' However, it is to be noted that its structure is equivalent to the structure of section 411: there is a duty to name the chosen school unless the school is unsuitable or attendance at it would be incompatible with the provision of efficient education for the other children there or the efficient use of resources. Hence it is argued that the same two stage process would apply here as applies to other children by virtue of the Glamorgan and Croydon cases cited earlier. Some support for that proposition can be found in the judgment of Moses J at first instance in the case of Burridge v London Borough of Harrow and the Special Educational Needs Tribunal, 9 December 1997, at p. 16 of the transcript:
"[Counsel] on behalf of Harrow does not dispute that parental preference must be taken into account, even though there is no equivalent to paragraph 11(a) of Schedule 33 in Schedule 27. In my judgment the Tribunal must weigh in its conclusion the disadvantages of an inefficient use of resources against the advantages of compliance with the preference."
That case went on appeal to this court and to the House of Lords but on a different issue. It is worth noting that, even if there is no precise equivalent to paragraph 11 of Schedule 33, there are provisions in schedule 27 which oblige both the LEA and the Special Educational Needs Tribunal to take parental wishes into account. In C v Buckinghamshire County Council [1999] ELR 179, at p 185D, Sedley LJ had prefaced the remarks quoted above thus:
"Parents like Mr and Mrs C whose preference is for an independent special school, while they cannot specify it (with potentially compulsory consequences) under para 3 [of Sch 27], are free to advance their preference as part of their representations under para 4. If they do so, the local education authority - and so, in due course, the tribunal - is required by para 5 to take it into account before finally deciding the contents of the statement."
It is not suggested here that the tribunal failed to take proper account of the mother's wishes for this purpose, or for the purpose of section 9: it would be difficult indeed so to argue.
14. The argument has thus to turn on section 316:
"(1) Any person exercising any functions under this Part in respect of a child with special educational needs who should be educated in a school shall secure that, if the conditions mentioned in subsection (2) are satisfied, the child is educated in a school which is not a special school unless that is incompatible with the wishes of his parent.
(2) The conditions are that educating the child in a school which is not a special school is compatible with-

(a) his receiving the special educational provision which his learning difficulty calls for,
(b) the provision of efficient education for the children with whom he will be educated, and
(c) the efficient use of resources."
The words 'unless that is incompatible with the wishes of his parent' were inserted by the 1993 Act. Previously, the duty to secure mainstream schooling had inevitably arisen once the qualifying conditions were met. It was argued before Carnwath J that these words introduced a parental veto over mainstream education. He rejected that argument. In doing so he followed a decision of Owen J in Forbes v London Borough of Ealing, unreported, 30 September 1999, which he considered 'absolutely right': the authority's duty to provide education in a mainstream school did not apply if the parent objected, but the primary duty to provide education appropriate to the child's needs still did so, and if those needs were met by a mainstream school then that primary duty was met, even if the parents did not agree. There is no appeal against that aspect of the decision.
15. It is argued, however, that a similar balancing exercise arises in relation to the duty in section 316 as arises in relation to the duties in sections 411 (for children without statements) and Schedule 27 (for children with statements whose parents choose maintained schools). In other words, the LEA or tribunal should first have asked themselves whether the conditions for mainstream schooling in section 316(2) applied so as to bring the duty to provide mainstream schooling into play. If they did, then the tribunal should have asked whether this duty was incompatible with parental wishes. If it was, they should have proceeded to the second stage, and carried out a balancing exercise, weighing the strength and depth and reasons for those parental objections against the financial and other advantages of mainstream education. This would, it was argued, require the tribunal to give far more weight to parental objections to mainstream schooling than is required by section 9.
16. This is a subtle argument. It depends, not upon the existence of the duty to provide mainstream schooling in section 316, but upon the fact that parental objection has negatived that duty. But, argues Mr Gordon QC for the mother, the same applies to section 411 and paragraph 3 of Schedule 27. The prejudicial factor, be it resources or another, has negatived the duty to comply with parental choice. Nevertheless, the case law suggests that there is still a balancing act to be performed between parental preference and the resource objections. Why should it not also be so here?
17. Mr Wolfe for the LEA has met that argument with one of almost equal subtlety. He argues that each of these duties does indeed entail a second stage balancing exercise. But in each case it involves balancing the factor which has displaced the primary duty against the primary duty: thus in section 411 and paragraph 3 of Schedule 27 the efficient use of resources can be balanced against the parental preference. But in section 316 this would mean that the efficient use of resources had to be balanced against the duty to provide mainstream schooling. It would not mean that two of the displacing factors, the parental wishes and the efficient use of resources, had to be balanced against one another. Furthermore, resources only displace the section 316 duty if mainstream education is more costly than special education: they do not displace it in a case such as this where the desired special education is the more costly option.
18. In our view both arguments serve to over-complicate an exercise which is already quite complicated enough for LEAs and tribunals to operate without these subtleties. It is quite clear that the choice of school provisions in section 411 and paragraph 3 of schedule 27 do not arise in this case. The cases which suggest that a second stage balancing exercise arises once those duties have been negatived by resource considerations clearly relied upon the existence of other provisions requiring LEAs, appeal committees and the tribunal to take account of parental views. No-one suggests that parental views are irrelevant in this case. The duty to 'have regard to the general principle' in section 9 clearly does apply, as does the duty to take account of parental representations. Indeed we wonder whether the references to a second stage balancing exercise in the Glamorgan, Croydon, and Harrow cases reflect anything more than this.
19. Equally it is clear that the duty to secure mainstream schooling in section 316(1) has been negatived by the mother's objections. In S v Special Educational Needs Tribunal and the City of Westminster [1996] ELR 102, at p 113, Latham J said this:
"This very general section appears to be intended to ensure that a child with special educational needs, whether subject to a statement or not, should be educated in a mainstream rather than a special school wherever the conditions in subs (2) are satisfied. But the duty to secure that result is contingent, in effect, upon the parents' consent. The duty does not exist if the parents do not consent. In that eventuality the duty falls away."
Carnwath J applied that approach in South Glamorgan County Council v L and M [1996] ELR 400, at p 409, and also in this case, at p 14 of the transcript of his judgment:
" . . . once the parents have made clear their opposition to mainstream education, then one is taken outside [section 316] altogether, and indeed one is simply left with the ordinary obligations under section 324."
Those ordinary obligations are, as we have seen, to determine in detail the special educational provision which is called for by the child's special educational needs, including the type of school or other institution which would be appropriate, and naming a particular school if they think that should be done. That determination, as we have already seen, is to be informed by the views expressed by the parents and account must be taken of the general principle in section 9. It called for an informed exercise of judgment and that, in our view, was what was required in this case. It was also in our view exactly what the tribunal made.
20. We should add one further observation. At times, Mr Gordon appeared to be arguing that it was the very strength and depth of the mother's views in this case to which the tribunal should have given weight independently of the reasons for them. It is worth recalling the words of Thorpe LJ in C v Buckinghamshire County Council [1999] ELR 179, at p 189E:
"To determine if a school is appropriate, an assessment must be made both of what it offers and what the child needs. Unless what the school offers matches what the child needs, it is unlikely to be appropriate. The assessment of a child's needs necessarily imports a welfare judgment. . . . Parental preference obviously has a part to play in the assessment of what is appropriate. In a case where there appears to be parity of cost and parity of facilities, parental preference may be the decisive factor. But it would be wrong to elevate parental preference to the height that [counsel] appeared to contend for in his submissions. A bare preference might be ill informed or capricious. In practice, parental preference may mean a fair opportunity to the parents to contend by evidence and argument for one school in preference to another. Therefore preferences must be reasoned to enable the parent to demonstrate that they rest upon a sound foundation of accurate information and wise judgment.'
21. We dismiss this appeal.

Order: Appeal dismissed with costs: Order suspended under s. 18; Legal Aid Taxation permission to appeal refused. (Order does not form part of the approved judgment)

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