Mulla v Hackney Learning Trust

Where a parent requests a change to the school named in a statement of special educational needs, the local authority must comply unless a statutory exception applies. If an exception applies, the authority may nevertheless retain power under section 324(4)(b) of the Education Act 1996 to name another school it considers appropriate. In exercising that power, section 9 requires regard to parental wishes, subject to efficient education and the avoidance of unreasonable public expenditure. Public expenditure includes expenditure incurred by every affected public body, not merely the authority directly making the decision.

The appellant requested that Hackney Learning Trust substitute RC School, maintained by Islington Borough Council, for I School, which was named in her son’s statement of special educational needs. Hackney refused under paragraph 8(2) of Schedule 27 to the Education Act 1996, relying on the additional cost to Hackney. The First-tier Tribunal dismissed the appeal, and the Upper Tribunal dismissed a further appeal, holding that section 9 did not apply to paragraph 8(2).

The Court of Appeal considered whether section 324(4)(b) permitted the authority to name the requested school despite paragraph 8(2), and whether section 9 required assessment of expenditure incurred by public bodies other than Hackney.

1. Appeal allowed. Paragraph 8(2) of Schedule 27 identifies circumstances in which a local authority is not obliged to comply with a parental request to change the named school. It does not remove the authority’s power under section 324(4)(b) of the Education Act 1996 to specify a school which it considers appropriate for the child.
2. The Court of Appeal left undecided whether paragraph 8(2) itself preserves a discretionary power to accede to parental wishes and thereby engages section 9. It was unnecessary to resolve that issue because section 9 was engaged through section 324(4)(b).
3. Paragraphs 3(3) and 8(2) impose obligations which are materially equivalent for this purpose. The fact that paragraph 3 concerns the initial choice of school and paragraph 8 concerns a later change does not justify excluding section 324(4)(b) from the latter situation. Slough Borough Council v C was distinguishable because it concerned a change in the type of school, whereas the present request concerned a different school of the same type.
4. Following Haining v Warrington BC, section 9’s reference to public expenditure encompasses expenditure by any public body. The First-tier Tribunal therefore had to consider the financial impact on both Hackney and Islington. Its consideration of Hackney’s costs alone was insufficient.
5. The outcome of the correct assessment could not be determined by the Court of Appeal. The Upper Tribunal’s decision was quashed and the matter remitted to the First-tier Tribunal for reconsideration.

• Court of Appeal (Civil Division) — allowed the appeal, quashed the Upper Tribunal’s decision and remitted the matter to the First-tier Tribunal.
• Upper Tribunal (Administrative Appeals Chamber) — dismissed the appeal from the First-tier Tribunal, holding that section 9 of the Education Act 1996 was irrelevant to paragraph 8(2) of Schedule 27.
• First-tier Tribunal (Special Educational Needs and Disability) — dismissed the appeal against Hackney’s refusal to change the school named in the statement.