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Neutral Citation Number:	2011 UKUT 67 AAC
Reported Number:
File Number:	HS 800 2010
Appellant:	Dudley Metropolitan Borough Council
Respondent:	JS
Judge/Commissioner:	Three-Judge Panel / Tribunal of Commissioners
Date Of Decision:	11/02/2011
Date Added:	21/02/2011
Main Category:	Special educational needs
Main Subcategory:	Special educational provision - naming school
Secondary Category:
Secondary Subcategory:
Notes:	Reported as [2012] AACR 40. Special educational needs – special educational provision – naming school – whether the travel costs to the preferred school not the nearest suitable one represented unreasonable public expenditure The respondent’s son J was autistic and had moderate learning difficulties. He had started a reception class at B School, a special school for pupils with learning difficulties. Under the local authority’s policy free transport for children with special educational needs was provided to the nearest suitable school. The local authority decided H School was also suitable for J and it was nearer to the respondent’s home than B School. The additional travel costs to B School were estimated to be from £190 to £300 per year depending on whether or not shared transport was used. The council provided a statement of special educational needs (SSEN) naming both schools, confirming that B School was the parent’s favoured choice but that, as H School was nearer to the respondent’s home, under its policy the parents were responsible for all travelling expenses and arrangements. The parents appealed to the First-tier Tribunal (F-tT) to seek a decision that only B School should be named in the SSEN as H School could not meet J’s needs (so making the local authority responsible for paying the additional transport costs). The F-tT accepted H School could meet J’s needs and was an appropriate placement for him. However, it decided it was not an inefficient use of resources for B School alone to be named in Part 4 of J’s SSEN, given the small difference in transport costs and other factors including there being an established communication peer group at B School. The local authority appealed to the Upper Tribunal (UT) and the case was heard before a three-judge panel. It dismissed the appeal and the local authority appealed to the Court of Appeal. Held, dismissing the appeal, that: 1. there was a relevant contest within section 326(1A)(b) of the Education Act 1996 between the parents and the local authority: the appellant wanted to specify H School and would only include B School if the parents paid for J’s transport to it. If parents are unable to afford transport costs to their preferred schools then their preference would be denied and it was difficult to see a principled basis for saying a dual placement within an SSEN may be a matter of educational provision depending on whether or not the parents paid for the transport costs or made other alternative arrangements (paragraphs 36 to 39); 2. the F-tT was right to consider comparative travel costs for all suitable schools if that issue was put into play by the local authority. The F-tT was dealing with a matter of educational provision namely which school was to be specified. The parent’s sole preference was B School and so it had to be included unless J’s attendance was incompatible with the efficient use of resources. To say the F-tT could not consider transport costs was contrary to the local authority’s own approach in completing Part 4 of J’s SSEN and contrary to paragraph 3(3)(b) of Schedule 27 to the 1996 Act (paragraphs 40 to 46); 3. the approach of both the F-tT and the UT was not contrary to section 326(1A) or paragraph 3 of Schedule 27. The UT’s reasoning and approach was in general correct and conclusive (subject to one reservation). The F-tT was justified in weighing the transport costs involved in sending J to B School as part of the matters requiring consideration under paragraph 3 of Schedule 27. Its conclusion that a decision to specify the name of B School in Part 4 of the SSEN would not constitute an inefficient use of resources was properly open to it. The UT correctly decided that the F-tT had jurisdiction under section 326 and its conclusion involved no error of law (paragraphs 47 to 48). Editor’s note: The Education Act 1996 was amended with effect from 5 May 2010 to substitute references to “local authority” for “local education authority” (Local Education Authorities and Children’s Services (Integration of Functions) Order 2010 (SI 2010/1158)
Decision(s) to Download:	HS 0800 2010-00.doc [2012] AACR 40bv.rtf