Slough Borough Council v Special Educational Needs & Disability Tribunal & Ors

Under section 9 of the Education Act 1996, parental preference may be overridden where the preferred placement would impose an avoidable burden on public funds. Ordinarily, the comparison must use the apportioned public cost of provision at each school, not merely the marginal cost of admitting a child to a maintained school. In unusual circumstances, a specialist tribunal may make a short-cut finding that the maintained-school cost necessarily exceeds the fee actually sought by a non-maintained school. Section 348(2) requires the authority to pay the fees payable for education at a named non-maintained school, but the court left open how that duty interacts with voluntary parental funding or fundraising that reduces the fee. On the evidence, the reduced fee was the relevant comparison, and the appeal was dismissed.

This was a statutory appeal concerning the school to be named in a statement of special educational needs for a severely disabled child. The Tribunal first nominated Arbour Vale, a maintained school, and later reviewed its decision and nominated the privately operated PACE Centre, which the parents preferred. The Tribunal treated the PACE Centre’s exceptional two-year fee of £10,000 per year as lower than the cost of provision at Arbour Vale. The local education authority challenged the Tribunal’s unexplained Arbour Vale figure and argued that the relevant PACE Centre cost was its ordinary fee of £36,000, with any parental contribution disregarded under sections 9 and 348 of the Education Act 1996. Plender J rejected those arguments in [2009] EWHC 1091 (QB). The central issues were the proper cost comparison and the effect of voluntary fundraising or funding on the statutory fees.

Lord Justice Sedley gave the judgment of the court. Lord Justice Rimer and Sir Paul Kennedy agreed.

1. Disposition. The appeal was dismissed. The Tribunal’s review decision therefore stood, including the local education authority’s obligation to pay the PACE Centre’s fees of £10,000 per year for the child’s remaining primary education.
2. Section 9 cost comparison. Section 9 of the Education Act 1996 requires regard to be had to parental wishes so far as compatible with avoiding unreasonable public expenditure. Parental choice may therefore be overridden where it would impose an avoidable burden on public funds. Ordinarily, the Tribunal must quantify the relevant costs of the competing placements.
3. Admission to a maintained school with a vacant place is not cost-free apart from the child’s additional requirements. Every element of a maintained school carries a cost in public funds. In this unusual case, however, the Tribunal was entitled to make a short-cut finding that the apportioned cost of providing for the child at Arbour Vale, whatever its precise amount, necessarily exceeded the £10,000 fee sought by the PACE Centre. The authority’s proposed marginal figure of £4,161 did not establish otherwise.
4. Section 348. Section 348(2) of the Education Act 1996 requires the authority to pay the whole of the fees payable for education at a named non-maintained school. The court rejected the submission that this necessarily required payment of the school’s ordinary £36,000 fee where the school had reduced the fee for the particular child. It recognised the converse concern that voluntary parental funding could make an otherwise uneconomic placement appear permissible, but did not decide how section 348 applies in that situation.
5. The evidence showed only that the PACE Centre had reduced the fee in recognition of fundraising undertaken by the parents. It did not establish a disguised part-payment of fees. Future cases involving overt or covert voluntary parental funding should investigate the nature of the arrangement before resolving the legal issue. The Tribunal’s unexplained figure for Arbour Vale was unsatisfactory, but remission was unnecessary because the Tribunal had made the separate, tenable finding that the relevant maintained-school cost exceeded £10,000.

1. Court of Appeal (Civil Division): Appeal dismissed in [2010] EWCA Civ 668. The Tribunal’s review decision remained in force.
2. High Court of Justice, Queen’s Bench Division, Administrative Court: Plender J rejected the authority’s challenges in [2009] EWHC 1091 (QB).
3. Special Educational Needs and Disability Tribunal: The Tribunal initially nominated Arbour Vale and, on review, nominated the PACE Centre and treated its reduced annual fee as the relevant cost for comparison.