Essex County Council v Sendist

Parental preference for a maintained school must be followed unless a statutory exception applies. The exception based on efficient use of resources is not engaged by every increase in cost. It requires a fact-sensitive assessment of whether the additional expenditure is disproportionate.

The decision-making process has two stages. First, the authority or tribunal considers whether a statutory exception is established. At that stage, the balancing exercise is confined to the additional expenditure and the effect of refusing a reasonable parental preference. Only if an exception is established does a broader educational and resource comparison arise.

A specialist tribunal may assess probable future transport costs from imperfect evidence and use its expertise, provided its conclusion is reasonably open to it.

Essex County Council appealed against a decision of the Special Educational Needs and Disability Tribunal ordering it to amend the statement of special educational needs of a child, C, to name a different maintained special school preferred by her mother.

The Council accepted that the preferred school was suitable and that C’s attendance would not be incompatible with the provision of efficient education for other pupils. It relied only on the additional transport costs, arguing that they constituted an inefficient use of resources. The appeal challenged the Tribunal’s two-stage approach, its failure to compare total educational costs, and its assessment of likely transport costs.

1. Appeal dismissed. The Tribunal was entitled to order the Council to name the school preferred by C’s mother.
2. Schedule 27 paragraph 8 of the Education Act 1996 gives substantial importance to parental wishes. Compliance is mandatory unless one of the statutory exceptions applies. Suitability and the effect on the education of other children are addressed by separate limbs of paragraph 8(2).
3. The efficient-use-of-resources exception involves a two-stage process. First, the authority or Tribunal decides whether an exception is established. If no exception applies, parental wishes must be followed. Only if an exception is established does a broad balancing exercise arise, taking account of the resources involved, the relative merits of possible schools and relevant educational factors.
4. At the first stage there is nevertheless a balancing exercise. The question is whether the additional expenditure required to fulfil the parental preference is so substantial as to be disproportionate. The statutory expression is strong and does not make every, or every more-than-trivial, increase in cost incompatible with efficient use of resources.
5. The Tribunal was entitled to find that the additional transport expenditure was not disproportionate. It was also entitled to assess probable costs beyond the current academic year. The evidence supplied by the Council contained inconsistent figures, and the Tribunal could use its experience and expertise to reach the best realistic assessment available on that evidence.
6. Total costs of the two placements could have been relevant and admissible, but the Tribunal was not required to require the Council to produce them. An appellant will not ordinarily be permitted to reopen factual matters on appeal by adducing further evidence, and no exceptional circumstances existed.
7. The Tribunal’s order made the Council responsible for C’s transport costs as a consequence of naming the school. It did not purport to exercise a separate jurisdiction over transport.

• Special Educational Needs and Disability Tribunal: On 11 January 2006 allowed C’s mother’s appeal and ordered amendment of the statement to name the preferred maintained school.
• High Court (Administrative Court): Dismissed Essex County Council’s appeal.