Dudley Metropolitan Borough Council v Shurvinton & Ors

Under the Education Act 1996, conditionally naming a parent's preferred school on the basis that the parents pay transport costs remains a dispute about school placement. It is not converted into a bare transport issue. The First-tier Tribunal may therefore consider comparative transport costs when deciding whether naming the preferred school is incompatible with the efficient use of resources under paragraph 3(3) of Schedule 27. It must weigh those costs with the educational and other relevant advantages of the preferred placement. If the balance favours that placement, the preferred school may be named alone, with the resulting transport consequences under Part IX. Section 9 expresses a general principle of parental preference but does not displace the specific qualifications in Schedule 27.

The respondents appealed against a statement of special educational needs which named The Brier School, their preferred school, only on condition that they met the transport costs. Halesbury School was nearer and had been found suitable. The First-tier Tribunal ordered that The Brier School be named alone, after weighing the transport-cost difference against the advantages of the placement.

The Upper Tribunal dismissed the local authority’s appeal in [2011] UKUT 67 (AAC). The local authority appealed, arguing that transport was governed exclusively by Part IX of the Education Act 1996 and that the First-tier Tribunal had no jurisdiction to compare transport costs. The central issue was whether transport costs could be considered within the school-placement and efficient-use-of-resources inquiry under Part IV.

1. Appeal dismissed. Davis LJ upheld the Upper Tribunal’s decision and reasoning, subject to a reservation about part of its proposed second-stage analysis. The Master of the Rolls and Richards LJ agreed.
2. Nature of the dispute. A local authority which names a preferred school only on condition that the parents pay transport costs has not resolved the placement issue. There remains a contest over which school is to be specified. That contest concerns special educational provision and falls within the First-tier Tribunal’s jurisdiction under section 326(IA)(b) of the Education Act 1996. It is not a naked transport dispute governed only by Part IX.
3. Efficient use of resources. The First-tier Tribunal stands in the local authority’s shoes and must reevaluate the available information. Where all schools proposed are suitable and the local authority has put comparative travel costs in issue, those costs must be considered under paragraph 3(3) of Schedule 27. They must be weighed with the educational and other relevant advantages of the preferred school. The Tribunal was entitled to conclude that naming The Brier School alone would not be an inefficient use of resources.
4. Conditional naming and section 9. Conditional dual wording remains useful where efficient-use-of-resources considerations justify refusing unconditional effect to parental preference, consistently with R(M) v Sutton London Borough Council [2007] EWCA Civ 1205. Section 9 does not give parental preference priority over the specific qualifications in Schedule 27, as explained in B v Harrow LBC [2000] 1 WLR 223. That reservation did not affect the outcome because the Upper Tribunal’s principal reasoning was correct and conclusive.

• Court of Appeal (Civil Division): Dismissed the local authority’s appeal from the Upper Tribunal, subject to a reservation concerning part of the Upper Tribunal’s reasoning.
• Upper Tribunal (Administrative Appeals Chamber): In [2011] UKUT 67 (AAC), dismissed the local authority’s appeal and held that the First-tier Tribunal could consider comparative transport costs in deciding which school to name.
• First-tier Tribunal: Allowed the parents’ appeal and ordered that The Brier School be named alone in the statement of special educational needs.