Slough Borough Council v C & Anor

Under paragraph 8 of Schedule 27 to the Education Act 1996, a request to substitute the school named in an existing statement is confined to changing the school’s name. The authority, and the tribunal on appeal, must consider the conditions in paragraph 8(2): unsuitability, incompatibility with efficient education for other children, and incompatibility with the efficient use of resources.

The mainstream-school duty in section 316 does not govern a paragraph 8 determination. It therefore cannot displace or supplement the paragraph 8 conditions. Paragraph 8 also does not permit amendment of the type of school or of Parts 2 and 3 of the statement. A tribunal decision based on section 316 was consequently unlawful.

Slough Borough Council appealed against a decision of the Special Educational Needs and Disability Tribunal concerning a child with global developmental delay and associated learning difficulties.

The child’s existing statement named a special school. His parents later requested, under paragraph 8 of Schedule 27 to the Education Act 1996, that a mainstream school be substituted. The council refused the request. The tribunal allowed the parents’ appeal, relying principally on section 316 and ordering the mainstream school to be named.

The central issue was whether section 316 governed a paragraph 8 request, or whether the decision was confined to the three conditions in paragraph 8(2).

1. Appeal allowed. The tribunal’s decision was quashed and the matter was remitted for reconsideration.
2. Paragraph 8 of Schedule 27 to the Education Act 1996 has a limited scope. It concerns substitution of the name of the school specified in Part 4 of an existing statement. The authority, and the tribunal on appeal, must consider the conditions in paragraph 8(2). If none applies, the request must be accepted. If one applies, the request need not be accepted.
3. The duty in section 316 does not apply to a determination under paragraph 8. The position differs from the paragraph 3 process described by the Court of Appeal in MH v Special Educational Needs and Disability Tribunal and LB Hounslow [2004] EWCA Civ 770. Section 316 is engaged when a statement is initially made, when the type of school is a live issue. The type of school is not in issue under paragraph 8.
4. The power to substitute the name of a school does not include a power to change the type of school. Sections 324 and 326 distinguish between those matters, and paragraph 8 contains no equivalent power to amend the statement consequentially.
5. It would be internally inconsistent to require substitution of a mainstream school where Part 4 specified a special school and Part 3 contained provision directed towards special schooling. The statutory scheme avoids that result by confining paragraph 8 to a change of school name. Broader changes should be pursued through reassessment or review under section 328.
6. The tribunal’s original amendments to Part 3 were unlawful because its paragraph 8 powers did not extend to that part of the statement. The tribunal corrected that error in its amended decision under regulations 37 and 38 of the Special Educational Needs Tribunals Regulations 2001. No order for costs was made.

• Special Educational Needs and Disability Tribunal: allowed the parents’ appeal and ordered substitution of a mainstream school in Part 4 of the statement.
• High Court (Administrative Court): allowed the council’s appeal, quashed the tribunal’s decision and remitted the matter for reconsideration.