M, R (on the application of) v Sutton London Borough Council

A local education authority may name a parent’s preferred school in a statement of special educational needs on condition that the parents meet transport costs. This is lawful where the statement also specifies the type of school, or a particular school, which the authority considers suitable.

Section 324(4)(b) of the Education Act 1996 does not require the authority to name an alternative school merely because it will not provide transport to the preferred school. The authority need name a specific school only where it considers that this should be done. The statement must, read as a whole, state the authority’s conclusions clearly enough to permit a challenge to its educational provision.

D, an 11-year-old child with Asperger’s Syndrome, had a statement of special educational needs maintained by Sutton London Borough Council. At his parents’ request, the statement named a more distant mainstream primary school, WPS, but stated that the parents would bear transport costs because nearer mainstream schools could meet his needs.

The council later withdrew concessionary transport. Goldring J quashed that decision, holding that the council had to name a nearer alternative school if it wished to make the parental placement conditional on payment of transport costs: [2007] EWHC 267 (Admin); [2007] ELR 377. The council appealed. The central issue was whether the statement lawfully permitted refusal of transport without naming an alternative school.

1. Appeal allowed. The council was entitled to refuse transport to WPS. The judge had wrongly treated WPS as the only operative placement in the statement.

2. Under section 324 of the Education Act 1996, the authority had to identify D’s needs, determine the provision required, and state the type of suitable school or, where appropriate, a named school. The statutory provisions were expressed generally. Paragraph 8:87 of the Code of Practice was consistent with a conditional nomination of the parents’ preferred school, provided that the authority also met its obligation to specify the suitable type of school or a suitable named school.

3. Part 4 had to be read as a whole. Properly read, it named WPS if the parents accepted responsibility for transport. If they did not, it specified mainstream primary education as the suitable type of placement and stated that nearer schools of that type could meet D’s needs. That was sufficiently clear and complied with section 324(4)(a).

4. Richardson v Solihull Metropolitan Borough Council [1998] ELR 319 was binding and correct. Section 324(4)(b) requires the naming of a specific school only where the authority considers that a particular school both is suitable and should be specified. A parental preference does not create a duty to name another school if that preference must yield to efficient use of resources.

5. The parents were not deprived of a Tribunal remedy. They could appeal against Part 4 under section 326(1A), including on the basis that WPS was the nearest suitable school. R v Islington London Borough Council, ex parte G.A. was explained as a case where the only other suitable school had not been identified in the statement; it did not establish a general requirement to name an alternative school in the present circumstances.

• Court of Appeal (Civil Division) Allowed the council’s appeal and upheld its refusal to provide transport to the parents’ preferred school.
• High Court of Justice, Queen’s Bench Division, Administrative Court Goldring J quashed the council’s transport decision: [2007] EWHC 267 (Admin); [2007] ELR 377.