Haining v Warrington Borough Council

Section 9 of the Education Act 1996 requires a local authority to have regard to parental preference, subject to efficient instruction and training and the avoidance of unreasonable public expenditure. Public expenditure means expenditure incurred by a public body, not merely expenditure from the authority’s education budget. It can include relevant non-educational expenditure, such as respite-care costs, incurred by the responsible authority or another public authority. The separate resource inquiry under paragraph 3(3) of Schedule 27 concerns the responsible authority’s own resources, but does not replace the section 9 inquiry. Budgetary ring-fencing, information difficulties, fluctuating costs and lack of expertise do not justify a narrower interpretation.

The appeal concerned a statement of special educational needs for a child whose parents preferred an independent residential special school. The local authority named a maintained day special school, which would also provide respite care. The First-tier Tribunal dismissed the parents’ appeal, treating the residential placement as substantially more expensive. The Upper Tribunal dismissed a further appeal, holding that section 9 of the Education Act 1996 permitted consideration only of expenditure from the authority’s education budget. The central issue before the Court of Appeal was whether respite-care and other non-educational public expenditure should be included when comparing the placements.

The Court of Appeal allowed the appeal. The judgment of the Master of the Rolls was agreed by Lord Justice Pitchford and Lady Justice Rafferty.

1. Meaning of public expenditure. Section 9 of the Education Act 1996 uses the natural and ordinary expression public expenditure. It means expenditure incurred by a public body, as opposed to private expenditure. It is not confined to expenditure incurred by a local authority in discharging education functions. The word public would be unnecessary on the narrow construction. The contrast with paragraph 3(3) of Schedule 27, which refers to the efficient use of resources, also supports the wider construction.
2. Practical objections. Section 9 imposes a duty to have regard to parental preference, not an absolute duty to comply with it. As explained in Watt v Kesteven County Council [1955] QB 408, the authority may have regard to other matters and make exceptions. Ring-fenced budgets do not determine the meaning of public expenditure. Difficulties obtaining information do not justify a narrow construction; where necessary, the decision-maker must obtain the relevant knowledge. Section 322 provides a mechanism for assistance, while section 328(5)(b) and paragraph 2A(5) of Schedule 27 provide review and amendment mechanisms.
3. Relationship with Schedule 27. The resource inquiry under paragraph 3(3) concerns the responsible local authority’s own resources, as explained in B v Harrow London Borough Council [2000] 1 WLR 223. If that provision prevents the preferred school being named, the authority must exercise its discretion under section 324(4) and consider the separate section 9 question. The court approved the analysis in Hampshire County Council v R and SENDIST [2009] EWHC 626 (Admin).
4. Relief. The Upper Tribunal erred by excluding respite and other public expenditure outside the education budget. It could not be said that the same result was inevitable if the correct approach had been applied. The matter was remitted to the First-tier Tribunal for reconsideration.

1. Court of Appeal (Civil Division) allowed the appeal and remitted the matter to the First-tier Tribunal.
2. Upper Tribunal (Administrative Appeals Chamber) dismissed the appeal, holding that only expenditure from the local authority’s education budget was relevant under section 9.
3. First-tier Tribunal dismissed the parents’ appeal and treated the independent residential placement as over-provision and unjustified on educational grounds.