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Comparing the costs of different schools in special educational needs cases: a resolution?

The Upper Tribunal has recently attempted to address the uncertainty amongst practitioners and First Tier Tribunal panel members about the approach to be taken when analysing the comparative costs of school placements in special educational needs appeals.

The uncertainty has been caused by a series of Administrative Court and Court of Appeal decisions in particular, Coventry v SEND [2008] ELR 1 and the comments of Sedley LJ in Slough v SENDIST [2010] ELR 687, which appeared to contradict his earlier ruling in Oxfordshire County Council v GB and Others [2001]EWCA  1358.  In Coventry the Judge held that additional expenditure by a school caused by a pupil attending there should be included in the calculation of “public expenditure”.  In Slough Sedley LJ commented that “every element of a maintained school carries a cost in public funds”.

The issue arises under Section 9 of the 1996 Education Act which requires local authorities and the Tribunal to have regard: --

 "...to the general principle that children are to be educated in accordance with the wishes of their parents, so far as that is compatible with.....the avoidance of unreasonable public expenditure."

In practice if the cost of a parents’ preferred school is similar to the cost of the local authority's proposed school then (all other things being equal) the Tribunal tends to order the parents’ preference.  The vexed question has been how to calculate the cost of a local authority school place.  It is in the parents’ interest to demonstrate the maximum cost of the local authority school in the hope of showing that their preferred independent school placement is not “unreasonable public expenditure”.

The debate is usually between two distinct ways of measuring the price of a school place.  One is to take the cost of the school and divide that by the number of pupils (average cost).  The other is to take the cost of educating one more pupil at the school (marginal cost).  The distinction is crucial as average cost is usually very high and marginal cost is very often zero.

In the most recent case of EH v Kent County Council [2010] UKUT 376 (AAC), Upper Tribunal Judge Levenson helpfully reviewed all recent Appeal Court, Administrative Court,  and Upper Tribunal decisions on section 9 and clarified the legal position.  This has come together with the Upper Tribunal decision by Judge Williams during the summer in B v Worcestershire County Council [2010] UK UTA 292 (AAC).

The judgements in Kent and Worcestershire suggest that the high water mark reached in Coventry and Slough is being redrawn.  Kent asserted the primacy of the principle contained in Oxfordshire, namely that the task for the tribunal is to determine on the evidence what "additional burden [the placement] will place on the LEA’s annual budget", in other words the marginal cost of the local authority’s school placement since "... generally speaking, ... the existing cost of providing the maintained school and staffing it ... do not come into account".

In dismissing the parents’ appeal grounds that the First Tier Tribunal had erred in law by adopting a wrong approach to the question of public expenditure, in particular by not taking account of the cost of providing a learning support assistants for 20 hours weekly, Judge Levenson rejected the Appellant's argument that there was a distinction between the Court of Appeal decisions in Oxfordshire and Slough which led to the requirement of an apportionment of every cost attributable to the child’s placement at the maintained school.  On the facts of the case, he also rejected the Appellant's argument that the Tribunal had not properly considered the evidence nor applied the principle in Coventry.

Specifically Judge Levenson held:

"I do not accept the distinction that the Appellant is seeking to make between the Court of Appeal decisions in Oxfordshire and Slough. The former decision sets out (quite clearly, in my view) the approach that is to be adopted in all cases and gives a clear policy explanation. Slough was about the application of that general approach in a particular case and about the issue of parental contribution. ...
Coventry and Lewisham make it clear that it is public expenditure more generally that has to be considered, rather than the delegated budget of a particular school, but that does not detract from the general principles in Oxfordshire .......".

This approach is consistent with that taken by Upper Tribunal Judge Williams in Worcestershire where he pointed out how factor specific and local authority specific is any decision under Section 9 (including the decision in Coventry), and stated that Section 9 does not invite speculation or a "forensic examination of every detail of possible on-costs of a placement or savings from a non-placement".  Further:
"... the tribunal is working to the civil standard of proof and not a mathematical formula. The tribunal shall identify probable costs when it takes its decision and not be concerned about, for example, possible savings after the event. Nor does Section 9 require an arithmetical calculation. Disproportional precision is not necessary.  Rather it is a balancing exercise in which the probable comparable costs of the two placements are part.  What is required is sufficient accurate information to ensure that everything material to the final decision is considered in that balancing exercise. ..."

What this means for practitioners is quite simply that parent representatives are going to find it more difficult to argue that every element of the cost of a placement at a maintained school should be apportioned and taken into account, (as some seek to do), and local authority representatives must ensure that they do not rely simply on a ‘delegated budget’ argument to demonstrate that there is no additional local authority expenditure.  Local authorities need to tender evidence to show which facilities, staffing, resources etc that are required under Part 3 of the child’s statement are met within the school’s existing expenditure and which will require further funding.

Clive Rawlings appeared for the local authority in EH v. Kent.