X City Council v SENDIST & Ors

When choosing between a maintained school and an independent school capable of meeting a child's special educational needs, Education Act 1996, section 9 requires comparison of the independent school's fees with the actual additional public expenditure required at the maintained school. Delegated school funding remains public expenditure attributable to the local education authority. The relevant comparison is marginal or additional cash expenditure, not an accounting allocation of the school's overall budget. Costs of provision supplied by existing staff or fixed arrangements may be excluded where they create no additional expenditure. A tribunal must address the parties' principal submissions and explain the basis of its cost assessment, but inadequate reasons do not require an appeal to succeed where the tribunal's conclusion is sufficiently apparent from the evidence and no material error is shown.

G, an 11-year-old child with dyslexia, had a statement of special educational needs. Following revision of the statement, her parents appealed to the Special Educational Needs and Disability Tribunal concerning the extent of provision and the school named in the statement. The Tribunal named an independent special school, H School, rather than G's existing maintained school, P.

The Council appealed under section 11 of the Tribunals and Inquiries Act 1992. It argued that the Tribunal had wrongly included costs funded from P's delegated budget and had failed to determine whether P could meet G's needs without additional expenditure. The central issue was whether the H School fees constituted unreasonable public expenditure when compared with the actual additional cost of provision at P.

1. Appeal dismissed. The Tribunal had correctly treated the question under section 9 of the Education Act 1996 as whether the cost of the parents' preferred independent school involved unreasonable public expenditure.
2. The Council's delegated-funding argument failed. The route by which expenditure is paid is immaterial. Under section 49(5) of the School Standards and Framework Act 1998, money made available by the local education authority remains its property until spent and is then treated as spent by the school as the authority's agent. Delegated funding therefore remained relevant public expenditure.
3. The comparison required by Oxfordshire County Council v GB and Others [2001] EWCA Civ 1358; [2002] ELR 8 was between the independent school's fees and the maintained school's actual additional or marginal cash expenditure. Costs incurred through existing staff or fixed arrangements might not be additional, whereas genuine on-costs, such as an additional assistant or a per-pupil payment, would be included.
4. The Tribunal's reasons were inadequate because it did not expressly address the Council's principal submissions or explain its estimate of £13,000. Nevertheless, the evidence reasonably supported the inference that the estimate represented the increased cost of the more extensive provision which the Tribunal had found necessary. The Council had not established that the figure was absurd, perverse, or based on costs which were not genuinely additional.
5. The second ground was also unsupported. The Council's alleged oral submissions about group provision and nil marginal cost were not established by admissible or reliable material and were absent from its detailed written case. The appeal was dismissed, with the interested party's costs payable on the standard basis.

The Tribunal's decision dated 16 July 2007 named H School in G's statement of special educational needs. The High Court dismissed the Council's appeal under section 11 of the Tribunals and Inquiries Act 1992.