KW, R (on the application of) v Special Educational Needs Tribunal & Anor

The statutory responsibility for making special educational provision rests with the local education authority. Parents may participate in, and support, an educational programme, including by liaising with schools and specialists. The authority must not transfer responsibility for providing the child’s educational needs to the parents, directly or indirectly.

There is a substantial area of provision between the obviously educational and the obviously non-educational. A specialist tribunal has a wide margin of appreciation in classifying provision and selecting an appropriate educational setting. The court should intervene only for an error of law or where the decision plainly imposes an unlawful burden on the parents.

The claimant, the mother of a severely disabled child, appealed under Education Act 1996, section 326, against a decision of the Special Educational Needs and Disability Tribunal concerning the educational provision and school placement specified in her daughter’s statement of special educational needs.

The claimant argued that the Tribunal had unlawfully accepted that the child’s needs could be met through a day-school placement supported by cooperation between the school, specialists and the family, rather than through weekly residential schooling. The central issue was whether the Tribunal’s decision required the parents, directly or indirectly, to provide special educational provision which the local education authority was legally required to arrange.

1. The appeal was dismissed. The Tribunal’s decision, read as a whole, did not unlawfully place responsibility for the child’s special educational provision upon her parents.
2. Under sections 312 and 324 of the Education Act 1996, the local education authority bears the legal responsibility for arranging the special educational provision specified in the statement. That responsibility is not displaced merely because provision is delivered by school staff, health professionals or other persons.
3. The authorities recognise a substantial intermediate area between educational and non-educational provision. The specialist Tribunal is entitled to determine the classification of provision case by case, with the benefit of its expertise. The High Court should not interfere unless an error of law is established or the decision is unlawful because it plainly imposes on the parents a burden which belongs to the authority.
4. The Tribunal’s references to a waking-day or 24-hour curriculum had to be understood in context. The real question was whether the proposed day-school package, operating with support from specialists and cooperation at home, was appropriate to the child’s needs. The phrase did not necessarily require continuous one-to-one education or therapy throughout every waking hour.
5. Parents may properly be expected to liaise with schools and specialists, participate in an educational programme and adopt a constructive and compatible approach during periods of non-educational care. That does not amount to requiring them to provide special educational provision. The Tribunal’s decision did not require the parents to formulate or deliver the programme, but only to participate to the extent they already did.

High Court (Administrative Court): The statutory appeal against the Tribunal’s decision was dismissed. The Tribunal’s determination was left undisturbed.