TM v London Borough of Hounslow

Under the Education Act 1996, section 319 requires a local education authority to ask whether making the special educational provision called for in a school would be inappropriate. That question is not answered merely by asking whether the school can meet the child’s statement of needs. The authority must consider all the circumstances, including the child’s needs, available school and non-school provision, cost, the child’s response and the parents’ wishes. Parental wishes must be considered under section 9, but are not normally decisive. If school provision is not inappropriate, the authority must proceed under the statutory school-placement provisions.

TM, the mother of a child with autistic spectrum disorder, wished him to continue an intensive home-based Applied Behavioural Analysis programme. The London Borough of Hounslow issued a statement of special educational needs naming a special school and omitting continuation of the home programme. The Special Educational Needs and Disability Tribunal held that the school could meet the child’s needs and that there was no basis for home education. The Administrative Court, on an appeal on a point of law under section 11 of the Tribunals and Enquiries Act 1992, upheld that approach. The issue before the Court of Appeal was the proper construction and application of section 319 of the Education Act 1996.

Lord Justice Aikens gave the judgment with which Lord Justices Patten and Thomas agreed. The appeal was allowed and the matter was remitted to the Tribunal for further consideration.

1. Statutory sequence. Section 319 of the Education Act 1996 operates within the statutory process for assessing special educational needs and determining the provision required. It requires the authority to consider whether provision, or part of it, should be made otherwise than in a school before resolving the school-placement questions under sections 316 and 316A.
2. Meaning of inappropriate. The authority must consider whether school provision would be unsuitable or improper in the circumstances. It must take account of all the circumstances of the particular case. The possible factors include the child’s background and medical history, educational needs, school facilities, non-school facilities, comparative cost, the child’s reaction to provision at school or elsewhere, the parents’ wishes and any other relevant circumstances. The list is not exhaustive.
3. Parental wishes. The consideration must include the parents’ wishes under section 9. Following Catchpole v Buckinghamshire CC and the Special Educational Needs Tribunal [1998] ELR 463 and S and S v Bracknell Authority Council and the Special Educational Needs Tribunal [1999] ELR 51, those wishes are not normally determinative. They may be decisive only in the very rare case where otherwise equally balanced alternatives exist.
4. Error in the lower decisions. It was insufficient to ask only whether the proposed school could meet the statement of needs and then treat an affirmative answer as making school education necessarily appropriate. The Tribunal and the Administrative Court therefore adopted the wrong approach. The observations in T v Special Educational Needs Tribunal and Wiltshire CC [2002] ELR 704, S and S and R (C) v Special Educational Needs Tribunal and the London Borough of Brent [2004] ELR 111 did not address the precise issue before the court and provided no assistance sufficient to determine it.

• Court of Appeal (Civil Division) — Appeal allowed and remitted to the Tribunal for further consideration: [2009] EWCA Civ 859.
• Administrative Court — HHJ Inglis dismissed TM’s appeal on a point of law and upheld the Tribunal’s construction of section 319.
• Special Educational Needs and Disability Tribunal — Held that the identified special school could meet the child’s needs and that there was no basis for continuation of the home-based programme.