EH v Kent County Council

For section 9 of the Education Act 1996, the comparison between a parent’s preferred independent school and a maintained school ordinarily concerns the additional burden each placement puts on the annual education budget, balanced against educational advantages and drawbacks. Costs incurred regardless of the placement are generally excluded, while child-specific additional costs may be included. The First-tier Tribunal need not analyse the school’s accounts in every case or calculate a global per-capita cost. Local-authority budgetary arrangements, including an age-weighted pupil unit, are usually a sensible starting point, subject to evidence that they are unavailable or unfair. The appeal was dismissed.

EH, the child’s grandmother, preferred an independent school for a child with special educational needs. Kent County Council proposed a mainstream maintained school. The First-tier Tribunal found that both schools could meet the child’s needs and concluded that the independent placement would involve unreasonable public expenditure under section 9 of the Education Act 1996.

The Upper Tribunal dismissed EH’s appeal: [2010] UKUT 376 (AAC). The issue before the Court of Appeal was whether the First-tier Tribunal had to calculate the full or notional per-capita cost of the maintained school, rather than the relevant additional public expenditure, and whether the decisions in Oxfordshire and Slough were inconsistent.

1. Appeal dismissed. Sullivan LJ gave the judgment of the court. Patten LJ and Arden LJ agreed.
2. Section 9 of the Education Act 1996 requires a fact-sensitive comparison between the educational advantages and drawbacks of the respective placements and the burden placed on the annual education budget. Following Oxfordshire County Council v GB and Others [2001] EWCA Civ 1358, the ordinary measure is the additional burden caused by the placement. Costs incurred whether or not the child attends are generally excluded. A different method may be justified in particular cases.
3. The court rejected the argument that delegated school funding means there is no public expenditure until the school spends its allocation. Public expenditure may arise when the local authority allocates funds and when the school spends them. Coventry City Council v Special Educational Needs and Disability Tribunal and Another [2007] EWHC 2278 (Admin) and Slough Borough Council v Special Educational Needs and Disability Tribunal and Others [2010] EWCA Civ 668 did not establish a universal requirement to examine school accounts.
4. The First-tier Tribunal must decide the issue in a common-sense way and may determine what evidence is most helpful. Local-authority budgetary arrangements for the particular school will usually be a sensible starting point. An age-weighted pupil unit, together with established child-specific costs, may fairly reflect the public cost. A different calculation is needed only where there is no such payment or a cogent reason to conclude that the figure is unfair. Fixed costs, such as premises costs, are excluded.
5. On the evidence, the First-tier Tribunal was entitled to adopt the age-weighted pupil unit and reject additional learning-support costs. The evidence showed that the child’s needs could be met with limited withdrawal from classes and existing experienced staff. The apparent inconsistency between Oxfordshire and Slough was therefore not real, and the First-tier Tribunal’s decision was lawful.

• Court of Appeal (Civil Division). Dismissed EH’s appeal from the Upper Tribunal’s decision.
• Upper Tribunal (Administrative Appeals Chamber). Dismissed EH’s appeal against the First-tier Tribunal’s decision: [2010] UKUT 376 (AAC).
• First-tier Tribunal (Health, Education and Social Care Chamber). Found that both the independent and maintained schools could meet the child’s needs, but that the independent placement was incompatible with avoiding unreasonable public expenditure.