SG v Denbighshire County Council & Anor

Where parents with parental responsibility express opposing preferences for suitable maintained schools, Education Act 1996 Schedule 27 does not require both schools to be named. If a tribunal chooses to name a particular school, it must specify the school it considers appropriate under section 324(4).

The tribunal may consider whether one suitable school would provide a better education or is better suited to the child’s needs. It may take account of any educationally relevant matter, including practical living and transport arrangements. A tribunal may instead specify an appropriate type of school, provided that course is legally open and the parties have a fair opportunity to address it.

The father appealed against a decision of the Special Educational Needs Tribunal for Wales which named P School in his daughter’s statement of special educational needs. Both P School and R School were maintained mainstream schools capable of meeting the child’s needs, but each parent preferred a different school.

The tribunal treated any difference between the schools’ educational provision as irrelevant once both met the threshold of suitability. It also declined to hear evidence from either school’s SENCO. The father contended that R School would provide better support and was more practical for the child’s arrangements.

The appeal raised the proper approach where parents hold competing preferences for maintained schools and whether the tribunal had to compare the quality of provision before naming a specific school.

1. Appeal allowed. The Special Educational Needs Tribunal for Wales erred in law. Its decision was set aside and the appeal was remitted for a wholly fresh hearing before a differently constituted panel.

2. Where parents have opposing preferences which would ordinarily be operative under Schedule 27 to the Education Act 1996, Parliament cannot have intended both maintained schools to be named. If the tribunal elects to name a particular school, section 324(4)(b) requires it to identify the school it considers appropriate.

3. Two schools may both provide a suitable education, yet one may provide a better education or be better suited to the child’s needs. That comparison is legally relevant to the choice of a specific school. The tribunal therefore misdirected itself by treating differences in provision as immaterial once both schools could adequately meet the needs specified in the statement.

4. The tribunal also failed adequately to address the father’s case that R School was better placed to meet those needs. It could not properly rely on an unidentified assurance and unspecified evidence that the provision was materially similar, particularly after refusing to hear the available SENCO evidence.

5. Richardson v Solihull, White v Ealing [1998] ELR 319 permits specification of a type of school where Schedule 27 does not require a specific maintained school to be named. It does not permit a tribunal to disregard an operative parental preference in an ordinary case. On remission, the tribunal was not confined to choosing between P School and R School, and could specify an appropriate type of school after fair submissions.

6. The Upper Tribunal declined to transfer the matter to the family court, for which it had no power. It directed the local authority to obtain the child’s views through an appropriate person, subject to safeguards against parental obstruction.

• Upper Tribunal (Administrative Appeals Chamber): allowed the father’s appeal on a point of law, set aside the decision of the Special Educational Needs Tribunal for Wales, and remitted the matter for a fresh hearing.
• Special Educational Needs Tribunal for Wales: on 15 September 2015, dismissed the father’s appeal and named P School in the child’s statement of special educational needs.