Tottman, R (on the application of) v Hertfordshire County Council

A tribunal determining special educational needs must identify the provision required to meet the child’s special educational needs, but need not specify provision for needs which it has found are not educational needs. Educational and non-educational needs may overlap, requiring a case-by-case judgment. Where educational programmes are required during school hours, the statement may require regular liaison and consistency across other settings without prescribing a rigid waking-day programme. A tribunal’s decision must be read as a whole. A conclusion that a preferred residential placement would involve unreasonable public expenditure may be based on agreed facts or evidence before the tribunal.

The claimant parents appealed under section 11 of the Tribunals Act against a decision of the Special Educational Needs and Disability Tribunal dated 17 December 2002. The Tribunal concluded that Oliver’s special educational needs could be met at St Luke’s, a non-residential school, with consistency of approach and liaison across home, school, respite care and social activities. It rejected the contention that he required a structured curriculum throughout the waking day and refused the parents’ preference for Purbeck View, a private residential school, on cost grounds. The central issues were whether the Tribunal had failed to specify provision outside school hours, misunderstood an alleged agreement, or gave inadequate reasons.

1. The appeal was dismissed. Permission to appeal further was refused, and costs were ordered to be assessed in the normal way.
2. Section 324 of the Educational Act 1996 requires a local education authority to specify the special educational provision required to meet the child’s special educational needs. As explained by Pitchford J in R (On the Application of FJ) v Cambridgeshire County Council [2002] EWHC 2391 Admin, the authority cannot indirectly require a parent to provide part of that specified educational provision.
3. The Tribunal had not found that Oliver required special educational programmes throughout the waking day. It had found that he required consistency of programmes and approach, rather than the delivery of educational programmes in every setting and at every time. Once the Tribunal found that his special educational needs could be met at St Luke’s, it had no obligation to specify special educational provision outside school hours.
4. The distinction between educational and non-educational needs is inherent in the statutory scheme, although the two may overlap. As explained in London Borough of Bromley v Special Educational Needs Tribunal and Others [1999] ELR 260, the boundary requires a case-by-case judgment. The Tribunal was entitled to require regular and effective liaison, while recognising that the frequency and content of liaison could vary and could not sensibly be prescribed rigidly.
5. Read as a whole, the Tribunal’s reasoning was sufficient. The alleged agreement concerned consistency of approach and adult supervision, not the disputed proposal for waking-day educational programmes. The Tribunal was entitled to reject the parents’ case and to conclude, on the agreed position and evidence, that the residential placement would involve unreasonable public expenditure.

• Special Educational Needs and Disability Tribunal: decision dated 17 December 2002. The Tribunal dismissed the parents’ appeal, amended the statement of special educational needs and concluded that St Luke’s could meet Oliver’s needs.
• High Court (Administrative Court): the statutory appeal was dismissed. Permission to appeal was refused.