London Borough of Croydon v SK-A

When applying section 9 of the Education Act 1996, decision-makers must take a holistic view of the public purse. The exercise is not confined to educational expenditure or educational advantages. Relevant wider health and social-care costs and benefits may be considered, provided the decision remains within the statutory framework. Section 9 requires regard to parental preference; it does not create a presumption or impose a duty to follow it. The weight given to competing factors is for the specialist First-tier Tribunal.

The local authority appealed against a First-tier Tribunal decision made under section 51 of the Children and Families Act 2014. The Tribunal had named the parent’s preferred residential special school in the child’s EHC Plan despite a substantial additional cost, because of its wider healthcare and social benefits. Permission to appeal was confined to whether section 9 of the Education Act 1996 permitted those wider benefits to be weighed against the additional public expenditure. The central issue was whether the statutory balancing exercise was limited to educational considerations.

1. Appeal dismissed. The First-tier Tribunal’s decision contained no material error of law and stood.
2. Section 9 requires a decision-maker to have regard to parental preference, subject to efficient instruction and training and the avoidance of unreasonable public expenditure. It creates no presumption in favour of the parent and does not require the preferred placement to be selected.
3. The statutory balancing exercise requires a holistic assessment. “Public expenditure” means expenditure incurred by public bodies generally, not merely expenditure from the local authority’s education budget. The advantages relevant to the exercise are likewise not confined to educational benefits. Wider healthcare and social benefits may be weighed against wider public expenditure, so long as the Tribunal remains within the statutory framework.
4. K v Hillingdon LBC (SEN) [2011] UKUT 71 (AAC) was followed. The contrary observations in KE v Lancashire County Council (SEN) [2017] UKUT 468 (AAC) were obiter and, insofar as they diverged, were not followed.
5. The weight attached to costs and benefits was for the specialist First-tier Tribunal. The Tribunal was entitled to attach substantial weight to the preferred school’s 24-hour healthcare provision and the risks and distress associated with hospital journeys from the alternative school, together with the lesser social benefits of proximity to the child’s mother. Its conclusion that the additional expenditure was not unreasonable was sustainable.

• Upper Tribunal (Administrative Appeals Chamber): the local authority’s appeal was dismissed. The First-tier Tribunal decision dated 14 April 2021 was held not to contain an error of law.
• First-tier Tribunal (HESC Chamber): allowed the parent’s appeal and named the preferred residential school in Section I of the EHC Plan.