Cardiff Council v X & Anor

Additional Learning Needs and Education Tribunal (Wales) Act 2018, section 48, creates no presumption that a maintained school should be named in a child’s Individual Development Plan. The default position is that no school is named.

A school may be named to secure admission only where the statutory conditions are met. The decision-maker must be satisfied that the child’s interests require the identified additional learning provision to be made at that school and that education there is appropriate. The analysis must focus on the child’s additional learning provision and all relevant considerations, including those in the ALN Code. Parental preference may be relevant, especially its reasons, but a preference alone will ordinarily carry little weight.

Section 9 of the Education Act 1996 requires parental wishes to be accommodated through a fair decision-making process. It does not import the former Schedule 27 presumption into the 2018 Act scheme.

The Council issued an Individual Development Plan for X, a child with additional learning needs, without naming a school and without specifying 27.5 hours of one-to-one teaching-assistant support each week.

X’s parents appealed to the Education Tribunal for Wales. The Tribunal required School A, a maintained school, to be named in section 2D of the plan and required the specified teaching-assistant support. The Council appealed the school-naming decision and renewed its application for permission to challenge the support provision.

The central issue was whether the Tribunal had correctly approached the power to name a maintained school under section 48 of the Additional Learning Needs and Education Tribunal (Wales) Act 2018, having regard to parental wishes under section 9 of the Education Act 1996.

1. Ground 1 was allowed. The Education Tribunal for Wales made a material error of law by treating section 9 of the Education Act 1996 and the three-stage approach in IM v London Borough of Croydon [2010] UKUT 205 (AAC) as the starting point for deciding whether to name School A.

2. Section 9 requires the decision-maker to have regard to parental wishes. It does not confer a right to a particular school or require those wishes to be given effect whenever the section 9 proviso is not engaged. Under the Welsh statutory scheme, parental preferences are also addressed through the general admissions arrangements.

3. Section 48 of the Additional Learning Needs and Education Tribunal (Wales) Act 2018 is the governing provision. Unlike Schedule 27 paragraph 3 of the Education Act 1996, it contains no presumption that a school will be named. Its default position is that none is named. The Tribunal had to decide whether both conditions in section 48(4) were satisfied, with particular attention to whether X’s interests required his identified additional learning provision to be made at the proposed school.

4. The former three-stage analysis was inapplicable because it arose from the distinct 1996 Act scheme, including its presumption that a school would be named. Applying it first effectively predetermined the school-naming issue and rendered the later section 48 exercise empty. The Tribunal consequently failed to give proper consideration to matters favouring School B and treated parental preference as decisive.

5. The decision was quashed only insofar as it named School A in section 2D. That issue was remitted to a differently constituted Tribunal panel for expedited redetermination under section 48. Permission to appeal on Ground 2 was refused: the challenge was no more than disagreement with factual findings and evidential weight which the Tribunal was entitled to make.

• Upper Tribunal (Administrative Appeals Chamber): Allowed the Council’s appeal on the school-naming issue, quashed the Education Tribunal’s decision only insofar as it named School A, and remitted that issue for expedited redetermination. Permission to appeal on the teaching-assistant support issue was refused.
• Education Tribunal for Wales: Allowed the parents’ appeal against the Individual Development Plan and required School A to be named in section 2D, as well as specifying 27.5 hours of one-to-one teaching-assistant support per week.