B v Harrow London Borough Council

When a parent prefers an out-of-area special school for a child with a statement of special educational needs, the responsible local education authority may refuse that preference if attendance would be incompatible with the efficient use of that authority’s resources.

The distinct statutory scheme for ordinary school admissions does not require consideration of the receiving authority’s resources. The general principle in section 9 of the Education Act 1996 remains subject, for special schools, to the specific qualifications in paragraph 3(3) of Schedule 27.

The respondent mother’s severely disabled child, F, attended a special school maintained by the appellant local education authority. The mother preferred a special school maintained by a neighbouring authority. The Special Educational Needs Tribunal found that the existing school could meet F’s needs and that the additional cost of the preferred placement would be incompatible with the efficient use of the appellant’s resources.

Moses J dismissed the mother’s statutory appeal. The Court of Appeal allowed a further appeal and remitted the matter, holding that the resources of both authorities, or resources more generally, should have been considered. Although a rehearing subsequently produced the same placement decision after both authorities’ resources were considered, the House determined the outstanding question of law: whose resources must be considered under paragraph 3(3)(b) of Schedule 27 to the Education Act 1996?

1. Appeal allowed unanimously. Lord Slynn of Hadley delivered the leading speech. Lord Browne-Wilkinson, Lord Clyde, Lord Saville of Newdigate and Lord Millett agreed with his reasons.

2. Per Lord Slynn, the reference in paragraph 3(3)(b) of Schedule 27 to the efficient use of resources means the resources of the local education authority responsible for the child and for making and funding the statement. The first Tribunal and Moses J had therefore adopted the correct approach by considering Harrow’s resources.

3. Parliament established separate schemes for special education and ordinary school admissions. Section 411(5) of the Education Act 1996 expressly extends the ordinary admissions duty to applications by children living outside the maintaining authority’s area. No equivalent provision appears in the special-needs scheme. The omission was deliberate, particularly because section 424(3) excludes children with maintained statements from the ordinary admissions provisions.

4. The construction was supported by the special-school funding arrangements, under which the responsible authority may continue to incur the cost of an unused place when a child transfers outside its area. It was also supported by section 321(3), which connects responsibility with children in the authority’s area, and by the statutory Code of Practice, which repeatedly refers to the efficient use of the responsible local education authority’s resources.

5. Section 9 does not make parental preference decisive whenever the preferred placement avoids unreasonable public expenditure. In special-school cases, that general principle operates with the specific qualifications in paragraph 3(3) of Schedule 27. A parent retains the right to express a preference, but the authority need not give effect to it where the placement would be incompatible with the efficient use of its resources.

6. Reg v Shadow Education Committee of Greenwich London Borough Council, Ex parte The Governors of John Ball Primary School (1989) L.G.R. 589 concerned the ordinary admissions scheme under section 6 of the Education Act 1980. It did not determine the meaning of resources in the later, distinct statutory scheme governing special schools.

1. House of Lords: Allowed the local education authority’s appeal unanimously. It held that the first Tribunal and Moses J had correctly confined consideration to the responsible authority’s resources.

2. Court of Appeal: Allowed the mother’s appeal, set aside the first Tribunal’s decision and remitted the matter. The court considered that resources beyond those of Harrow should have been examined.

3. High Court, Moses J: Dismissed the mother’s appeal from the first Tribunal. He held that paragraph 3(3)(b) of Schedule 27 referred to the resources of the authority making the statement.

4. Special Educational Needs Tribunal: Dismissed the appeal concerning the named school, subject to measures increasing the mother’s involvement. It found the existing school suitable and the additional annual cost of the preferred placement material.

5. Proceedings following remittal: A differently constituted Tribunal again dismissed the placement appeal after considering both authorities’ resources. Latham J dismissed a further appeal on 5 August 1999. The House nevertheless determined the point of law arising from the earlier proceedings.