The Upper Tribunal endorses a holistic approach to section 9 of the Education Act 1996 (parental preference on school placement)

24th May 2022

London Borough of Croydon v K.A. [2022] UKUT 106 (AAC)

The Upper Tribunal published yesterday an important decision on EHC Plans which affirms the correct approach to section 9 of the Education Act 1996. The attempt by the London Borough of Croydon, on appeal, to narrow section 9 to educational benefits alone was rejected.

Alice de Coverley, pictured here, from 3PB’s Education Team, represented the Respondent in this appeal, the parent, having already succeeded on their behalf at first instance. She was instructed by Qaisar Sheikh at Coram Children’s Legal Centre (CCLC).

The First-tier Tribunal decision, which led to the naming of a highly specialist residential school placement for a disabled 13-year-old boy (“J”), that was approximately £70,000 more annually than the Local Authority’s choice of school, was upheld. This was despite the additional benefits of the school placement being health and social care related (rather than educational); for J, the health and social care benefits to him substantially outweighed the costs differential of the placement.  As part of the initial appeal, the parent had sought a placement costing £268,393 p.a. due to J’s complex needs, which could not be met in the home environment.

The Local Authority had argued on appeal that the First-tier Tribunal had taken an impermissibly wide approach to the range of factors it was able to consider when conducting the balancing exercise called for when applying section 9 of the Education Act 1996. The First-tier Tribunal relied, at least in part, for its view upon what had been said in K v Hillingdon LBC (SEN) [2011] UKUT 71 (AAC). But what was said or what the Tribunal thought had been said, in that case, “arguably sat unhappily” with what was subsequently stated to be the position in KE v Lancashire County Council (SEN) [2017] UKUT 468 (AAC).

Upper Tribunal Judge Wikeley, in his decision, affirmed that the educational, healthcare, and social advantages (“apples, pears and oranges”) of a school placement should be weighed against the educational, healthcare, and social costs (“apples, pears and oranges”) on the other side of the scales, when carrying out the section 9 balancing act for the purposes of placements in EHC Plans [52].

K v Hillingdon LBC (SEN) [2011] UKUT 71 (AAC), which had previously been authority that all such benefits should be taken into account was affirmed. Hillingdon, Judge Wikely concluded, was consistent with the strong emphasis on the holistic approach to section 9, as highlighted in O v London Borough of Lewisham and SEND Tribunal [2007] EWHC 2130 (Admin) and the Court of Appeal’s decision in Haining v Warrington BC [2014] EWCA Civ 398 (albeit on a different basis). KE v Lancashire County Council (SEN) [2017] UKUT 468 (AAC) was therefore distinguished.

Further, the weight to be attached to the respective benefits and costs under section 9 is also “axiomatically a matter for the expert evaluation and judgment of the specialist First-tier Tribunal” [53].

Judge Wikeley also included interesting commentary on the (lesser known) difference between “published” and “reported” Upper Tribunal decisions. He highlighted an “important distinction in the doctrine of precedent operated in this Chamber” - the reported status of K v Hillingdon LBC (SEN) [2011] UKUT 71 (AAC) meant “at the very least that it carried more weight” than KE v Lancashire CC (SEN) [2017] UKUT 468 (AAC) [48-50] as it appeared in the Administrative Appeal Chamber Reports. The Judge would have followed Hillingdon, though, in any event.

The Upper Tribunal thus concluded: “[T]here is an obvious conceptual symmetry in considering any wider health care and social advantages attaching to the parental preference under section 9 while at the same time having regard to public expenditure in a broad sense (so including e.g. health care and social care costs and not just educational expenditure by a council). The whole point of section 9 is that it involves a balancing exercise that accordingly requires a cost/benefit analysis of the relevant factors. A balancing exercise by definition necessarily involves weighing up the advantages that accrue on one side of the equation against the public expenditure involved on the other side. If that is to be meaningful, the same potential constellation of factors has to be considered on both sides of the equation. In sum, to use a rather strained metaphor, Ms Walker’s approach would require one to weigh educational advantages (apples) against educational, healthcare and social costs (apples, pears and oranges). I consider Ms de Coverley’s analysis to be more consistent with the holistic approach required by the case law – so the educational, healthcare and social advantages (apples, pears and oranges) are likewise weighed against the educational, healthcare and social costs (apples, pears and oranges) on the other side of the scales.” [52]

This case arguably widens the potential scope for parents to raise any benefits that they consider outweigh the additional cost of the placement. After all, a placement simply being more expensive does not mean that it is automatically incompatible with the duty to avoid unreasonable public expenditure to place the child there.

Qaisar Sheikh, Head of Education Law at CCLC comments:

“I am extremely pleased for J and his mother. This decision is so important for parents appealing to the Tribunal because it confirms that, even when the cost difference between placements considered suitable for a child is substantial, in the right circumstances, parents can succeed in securing their desired placement by relying on benefits that are beyond educational. This decision dispels the widely held view, particularly amongst LAs, that a when two placements are considered suitable for a child’s needs, the parental choice can only be named in an EHC plan if it is only marginally or moderately more costly. In this case it was almost £70, 000 more costly to the LA and not considered an unreasonable use of public funds due to the additional health and social care benefits that it will bring to J. One can only hope that this decision serves to encourage LAs to take a more holistic approach in weighing up education, health and social advantages to a child or young person and not put primary consideration to costs alone”.

See CCLC's news report of the case here.

To instruct Alice de Coverley, please contact her clerk Chris Mitchell on [email protected] or by calling him on 020 7583 8055.