Hampshire County Council, R (on the application of) v R

Section 9 of the Education Act 1996 requires decision-makers to have regard to parental preference, but does not require them to give effect to it. The qualification concerning efficient instruction and training is general. It is not confined to the child whose parents expressed the preference or to children educated with that child.

A finding under section 9 is not decisive. Where the statutory school-preference exception is established, the decision-maker must exercise the discretion under section 324(4), balancing all relevant factors. Even where the exception is not established, parental preference remains one factor within that discretion.

The Council appealed against a decision of the Special Educational Needs and Disability Tribunal requiring it to name Dove House School in J’s statement of special educational needs. The Tribunal accepted that Dove House could meet J’s needs and would not involve materially greater expenditure, but found that his admission would affect the efficient education of other pupils. It nevertheless treated section 9 of the Education Act 1996 as requiring effect to be given to his mother’s preference.

The mother cross-appealed, contending that the Tribunal had not properly found incompatibility under paragraph 3(3)(b) of Schedule 27. The central issues were the scope of section 9, the meaning of incompatibility with efficient education, and the extent of the Tribunal’s discretion under section 324(4).

1. Appeal and cross-appeal allowed. The Tribunal’s decision was set aside and the matter was remitted to the same Tribunal with the same constitution.
2. Section 9 of the Education Act 1996 imposes a duty to have regard to the general principle that pupils should be educated in accordance with parental wishes. It does not impose a duty to comply with those wishes. The principle is subject to the avoidance of unreasonable public expenditure and compatibility with the provision of efficient instruction and training: [2009] EWHC 626 (Admin), paras 19–21.
3. The words concerning efficient instruction and training are unlimited. They may require consideration of the effect on the child concerned, children educated with that child, or other children indirectly affected by the arrangements. The Tribunal therefore erred by restricting its consideration to J’s instruction and training: paras 27–37.
4. An adverse impact on the efficient education of other children does not necessarily establish incompatibility under paragraph 3(3)(b) of Schedule 27. The Tribunal had to decide whether the impact would be so great that attendance at Dove House would be incompatible with efficient education. That involved a fact-sensitive judgment and question of degree: paras 43–50, 56–58.
5. The statutory scheme involved two stages. First, the Tribunal had to decide whether a Schedule 27 exception was established. Secondly, if necessary, it had to exercise the discretion under section 324(4) by identifying the appropriate school and balancing all relevant factors. A finding under section 9, whether of compatibility or incompatibility, was not dispositive. Parental preference and the reasons for it remained relevant, although incompatibility could reduce the weight given to that preference: paras 51–66.
6. If no incompatibility under paragraph 3(3)(b) was found, the Tribunal would be obliged to name Dove House School. If incompatibility was found, it had to exercise its section 324(4) discretion. The transcript was directed to be expedited. There was no order as to costs, and an order was made under the Children and Young Persons Act 1933 protecting the identities of J and his mother: paras 52, 59, 67, 72, 79, 81.

• High Court (Administrative Court): allowed the Council’s appeal and the mother’s cross-appeal against the Special Educational Needs and Disability Tribunal’s decision dated 20 October 2008. The matter was remitted to the same Tribunal with the same constitution.