Oxfordshire County Council v GB & Ors

Where parental preference is for an appropriate independent school rather than an available appropriate maintained school, unreasonable public expenditure under section 9 of the Education Act 1996 is ordinarily assessed by balancing the educational advantages of the preferred placement against its additional annual cost to the local education authority.

Costs which the authority or provider would incur whether or not the child attended are generally irrelevant. The maintained-school comparator is therefore not a fractional share of the authority’s total education budget, school costs or capital costs. It is the additional burden which the placement places on the annual education budget, subject to any particular circumstances requiring a different approach.

M had serious hearing loss and had been placed at a maintained comprehensive school with a hearing-impaired unit. His parents moved him to an independent special school, which offered a deaf peer group, while the local education authority maintained its choice of the maintained school in his statutory statement.

The Special Educational Needs Tribunal found both schools appropriate. It preferred the independent school because its educational benefit outweighed an assessed annual cost difference of £2,651, although it reached the opposite conclusion if transport had to be provided. The Administrative Court, Sir Oliver Popplewell, ruled in favour of the parents and the tribunal on 9 May 2001.

The council appealed. The central issue was whether the cost of a maintained placement was a notional share of general provision or only the additional expenditure caused by placing this child there.

1. The court allowed the appeal and remitted the matter to the Special Educational Needs Tribunal. The tribunal had adopted the wrong approach to the maintained-school cost comparator.

2. Under section 9 of the Education Act 1996, parental preference remains subject to compatibility with efficient instruction and training and the avoidance of unreasonable public expenditure. Where both an independent and a maintained placement are appropriate, the decision-maker must balance the educational advantages and disadvantages for the child against the extra cost to the local education authority of the independent placement.

3. In the ordinary case, the relevant comparison is the burden each placement places on the annual education budget. Existing costs of a maintained school, its specialist unit and its staff do not generally count if they would be incurred whether or not the child attended. Equally, costs of the independent placement are ordinarily its annual fee. The court accepted that unusual circumstances may require another method of comparison, but rejected an open-ended choice of accounting methodology.

4. The statutory comparison for two maintained schools under Schedule 27, paragraph 3 was consistent with that approach. Efficient use of resources may include comparative on-costs, such as transport and personal support, but will rarely be assisted by apportioning the authority’s accounts or balance sheet. This accorded with the reasoning discussed in B v Harrow LBC [2000] 1 WLR 223.

5. The tribunal had wrongly treated the teacher of the deaf and taxi costs as necessarily part of the cost of the maintained placement. It had not made the necessary finding whether those costs would have been incurred irrespective of M’s attendance. Remittal, rather than final disposal, was appropriate because that factual issue remained and because M’s schooling had progressed. Any reconsideration was to be expedited.

The court also stated, as ancillary guidance, that a statutory tribunal required to give reasons should not seek to amplify them after an appeal has begun. Fresh evidence on an appeal from such a tribunal has a restricted role, save where current information about the child is needed to frame suitable relief.

• Court of Appeal (Civil Division) Allowed the council’s appeal and remitted the case to the Special Educational Needs Tribunal for reconsideration in accordance with this judgment: [2001] EWCA Civ 1358.
• Administrative Court (High Court) Sir Oliver Popplewell ruled in favour of the parents and the tribunal on 9 May 2001, and granted permission to appeal.
• Special Educational Needs Tribunal Found both schools appropriate but preferred the independent school, subject to the effect of transport costs.