O v London Borough of Lewisham & Anor

Section 9 of the Education Act 1996 continues to apply when parental preference concerns a maintained school, although the specific duty in Schedule 27 paragraph 3(3) also applies. The duty to have regard to parental wishes is therefore not displaced merely because the preferred school is within the maintained sector.

For section 9, unreasonable public expenditure is not confined to expenditure from the local education authority’s education budget. The decision-maker may take account of relevant savings to other public services, including social services, while remaining within the statutory framework. The education authority or tribunal must inform itself of the child’s full circumstances and adopt a holistic approach, but must decide the educational placement under the powers conferred by the education legislation.

O’s mother appealed under section 11 of the Tribunals and Inquiries Act 1992 against a decision of the Special Educational Needs and Disability Tribunal dated 5 February 2007. The Tribunal had maintained the designation of P School, a maintained day special school, rather than PH School, a maintained school offering residential education.

The Tribunal considered that O did not require residential education and that PH School involved approximately £20,000 more annual expenditure. It declined to take account of approximately £16,588 in social-services respite-care savings which might have followed from the preferred placement. The central issues were whether section 9 of the Education Act 1996 applied where both schools were maintained schools, and whether public expenditure included relevant expenditure or savings outside the local education authority’s education budget.

1. Appeal allowed. The Tribunal’s decision was quashed.
2. Section 9 of the Education Act 1996 applies even where the parental preference is for a maintained school. Schedule 27 paragraph 3(3) imposes a more specific and onerous obligation where its conditions are met, but the absence of an obligation to comply with the preference does not displace the general duty to have regard to it.
3. The phrase unreasonable public expenditure in section 9 is not limited to expenditure from the local education authority’s education budget. Its natural meaning concerns the impact of the choice on the public purse generally. Relevant savings to social services or other public bodies may therefore be considered.
4. The statutory distinction between education-authority functions and social-services functions remains relevant, even where both are performed by the same council. Section 322 of the Education Act 1996 recognises that distinction and provides a mechanism for obtaining assistance and information. It does not prevent a decision-maker from considering savings to another public service when applying section 9.
5. The Tribunal should obtain the full picture of the child’s needs and adopt a holistic approach, consistently with the statutory limits on its jurisdiction. It should assess the financial position as at the hearing, recognising that costs and savings may change.
6. The Tribunal had treated the mother’s preference exclusively through Schedule 27 paragraph 3(3) and had not properly considered section 9. The court could not say that the result would inevitably have been the same had the respite-care savings been considered. The matter therefore required correction in law, rather than dismissal on the basis that the error was immaterial.

• Special Educational Needs and Disability Tribunal: on 5 February 2007, maintained P School as the school named in O’s statement of special educational needs.
• High Court (Administrative Court): allowed the appeal under section 11 of the Tribunals and Inquiries Act 1992 and quashed the Tribunal’s decision.