P v Worcestershire County Council

Where a tribunal compares a maintained mainstream school with a parental preference under section 9 of the Education Act 1996, its comparative-cost findings must reflect the educational provision it has ordered. It must give adequate reasons for treating earlier cost evidence as reliable after materially increasing quantified provision.

The first £6,000 of pupil-specific SEN costs which a maintained mainstream school is expected to meet from its delegated budget is excluded from the comparison. Pre-funded specialist teaching services are also excluded. Changes in the school-funding regulations for 2015/16 and 2016/17 made no material difference to the approach in Hammersmith & Fulham LBC v L [2015] UKUT 0523 (AAC).

Andrew, a child with special educational needs, appealed through his mother against the school named in Part 4 of his statement of SEN. The First-tier Tribunal ordered 25 hours of teaching-assistant support each week but named the local authority's maintained mainstream secondary school rather than the parents' preferred independent school.

Both schools were found suitable. The First-tier Tribunal treated the maintained-school cost as £5,200 and held that the substantially higher cost of the independent school would cause unreasonable public expenditure under section 9 of the Education Act 1996.

The Upper Tribunal considered whether the maintained-school cost evidence covered the newly quantified support, whether specialist teaching was pre-funded, and whether later funding regulations altered the applicable comparative-cost approach.

1. Appeal allowed. The First-tier Tribunal's decision involved an error of law. It was set aside and remitted for a complete rehearing.
2. Section 9 of the Education Act 1996 requires regard to parental wishes, subject to efficient instruction and training and avoidance of unreasonable public expenditure. In a contested placement case, the tribunal will commonly need reasoned findings on the additional costs of the competing schools before deciding whether the parental preference involves unreasonable expenditure. Even where that preference survives the statutory qualification, it is not automatically determinative.
3. The First-tier Tribunal gave inadequate reasons for retaining the local authority's £5,200 maintained-school figure after it had itself ordered 25 hours per week of teaching-assistant support. The evidence had been prepared by reference to a statement containing no quantified teaching-assistant provision. The tribunal had to address whether that evidence remained reliable for the section 9 comparison. Its failure was material: the additional support cost could affect the approximately £12,000 difference between the placements.
4. The appeal would not have succeeded on the specialist-teaching ground. The First-tier Tribunal was entitled on the evidence to find that the required specialist input was delivered through a previously funded local-authority service and therefore did not create additional expenditure for section 9 purposes.
5. The later funding regulations did not materially alter the approach in Hammersmith & Fulham LBC v L [2015] UKUT 0523 (AAC). In a maintained mainstream school, the applicable minimum per-pupil funding remains relevant and the first £6,000 of SEN costs is met within delegated school funding. Unless persuaded otherwise, the rehearing tribunal should apply the Hammersmith approach.
6. On rehearing, the First-tier Tribunal must consider Andrew's circumstances at that time. The Upper Tribunal also rejected the local authority's procedural objection: a decision whether to review an earlier tribunal decision is distinct from that earlier decision.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the mother's appeal on grounds concerning the maintained-school cost assessment, set aside the First-tier Tribunal's decision and remitted the appeal for rehearing.
• First-tier Tribunal: Amended Part 3 of the statement to require 25 hours of teaching-assistant support each week, but named the local authority's preferred maintained mainstream school in Part 4. It refused permission to appeal.