London Borough of Islington v A Parent

Parental preference for an approved school must generally be respected under Children and Families Act 2014, section 39(4), unless a statutory exception is established. On appeal, the First-tier Tribunal must stand in the local authority’s shoes and apply the legislation to the evidence. The jurisdiction is inquisitorial: the Tribunal must obtain the evidence necessary for a fair determination and should use its case-management powers where appropriate. No formal burden of proof rests on the local authority, although section 39(4) creates a presumption in favour of parental preference and the relevant issue is determined on the balance of probabilities. A Tribunal cannot reject cost evidence as unreliable merely because it is approximate or may change following later assessment. It must assess the probable cost differential, weigh it against educational advantages, and adjourn where necessary evidence can fairly be obtained.

The parent appealed under section 51 of the Children and Families Act 2014 against the local authority’s proposed placement of her son, C, at The Bridge School. She preferred The Garden School, a special school in a neighbouring local authority. The First-tier Tribunal named The Garden School after finding that the local authority had failed to prove the true costs of the two placements and that its evidence was unreliable.

The local authority appealed. The central issues were whether the First-tier Tribunal had applied an impermissible burden of proof, failed to exercise its inquisitorial jurisdiction and acted unfairly by refusing an adjournment, and whether its treatment of the placement-cost evidence was irrational.

1. Appeal allowed and decision set aside. The case was remitted under section 12 of the Tribunals, Courts and Enforcement Act 2007 to a fresh First-tier Tribunal, with directions for an expedited rehearing.
2. The First-tier Tribunal had erred by treating the proceedings as ordinary adversarial litigation and directing itself that the local authority bore the burden of proving that parental preference was incompatible with the efficient use of resources. Its task was to stand in the local authority’s shoes and apply section 39(4) of the Children and Families Act 2014 to the facts.
3. Section 39(4) establishes a statutory presumption in favour of parental preference. The Tribunal must decide, on the balance of probabilities, whether the requested placement is unsuitable or whether attendance would be incompatible with efficient education or efficient use of resources. The Tribunal bears the responsibility for ensuring that it has the evidence needed to perform that task. The parties retain responsibilities to comply with directions and advance the cases they rely upon, while the local authority has a special duty to provide relevant information, including information adverse to its position.
4. Where evidence is inadequate, the Tribunal must consider its inquisitorial and case-management powers. It can require parties or third parties to provide documents and information and can summon witnesses. In this case only the Tribunal could compel the neighbouring authority or The Garden School to provide evidence. If the Tribunal had concerns about the evidence, fairness required it to raise them with the parties and consider an adjournment.
5. The First-tier Tribunal’s treatment of the costs was irrational. Approximate figures could still establish the probable cost differential. The Tribunal was required to determine the likely costs or range of costs on the balance of probabilities and weigh the difference against the educational advantages of the preferred placement. It was not entitled to reject the evidence merely because costs might change after a future assessment, or because the figures appeared surprising.
6. The evidence indicated a substantial potential annual differential, and the Tribunal had to consider costs over time. It also had to account for relevant transport costs without assuming that it had jurisdiction to order the form of transport provided by the local authority. The Tribunal could not remake the appeal because the First-tier Tribunal had failed to determine the suitability of The Bridge School and what additional provision might be required.

• Upper Tribunal (Administrative Appeals Chamber): appeal allowed. The First-tier Tribunal decision dated 20 March 2024 was set aside and the case remitted for redetermination by a fresh panel.
• First-tier Tribunal (Health Education and Social Care) (Special Educational Needs and Disability) Tribunal: named The Garden School in Section I of C’s EHCP after rejecting the local authority’s resources evidence.