Landmark Ruling Over Special Education Funding for Your Child

Portrait of Sarah Woosey
Author:
Sarah Woosey
Partner, Education & Community Care Solicitor
Date:
25/07/2022

If your child has special needs and you need to challenge the choice of school that your local education authority has selected for them, this recent case has set a new precedent on how it will be assessed.

In this landmark case, the London Borough of Croydon Local Authority proposed to place a child who has a severe disability and requires a great deal of assistance in an independent special school.  The parents were not happy with the Local Authority’s choice of school and wanted to place him at an alternative one classed as a ‘non maintained special school’. This was a more expensive school; the difference in cost was around £61,000 a year.  

The parents’ argument was that although their choice of school was good for their son’s education, it also had wider benefits. The child, is understood to be fed via a feeding tube which he tends to pull out; when this happens, medical support is needed to reinsert it.

The parents’ choice of school had 24-hour nursing support while the Local Authority’s choice of school only had external daytime cover. It’s important to note that both options were residential schools and, because of his disability, the child  would need to live there 52 weeks of the year.  The parents’ choice was nearer to the family home so they would be able to visit their son more regularly than if he was at the Local Authority’s choice of school.

The child also had to regularly attend hospital and he was often stressed by the experience. His mother argued that if her son went to the school, which was closer to the family home, it would be much easier for her to accompany him on these visits, which in turn would help his mental health.

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What Happened at the Tribunal?

Initially, this case went to a First Tier Tribunal. They acknowledged that both schools were acceptable from an educational perspective. Because the parents’ choice of school had health and social care benefits for the child, they ruled that the more expensive school could be named and that the child should attend.

The law said that whoever is making the decision should (wherever possible) name the parents’ choice of school but not where it would incur unreasonable public expenditure. The tribunal said that considering the severe disability of the child, they didn’t think that the extra amount was unreasonable.

The Local Authority decided to appeal against the decision to the Upper Tier Tribunal. They believed the First Tier Tribunal took “an impermissibly wide approach as to the range of factors it was able to consider when conducting the balancing exercise”. This is where they weigh up the costs against the benefits to decide whether a choice is reasonable or not. The Local Authority argued that it was essentially an educational tribunal, and that should have been the focus for the decision excluding the other factors. They argued the decision was an “error of the law”. 

The Conclusion that Impacts Education Law

The Local Authority was unsuccessful in their appeal. The Upper Tribunal upheld the original decision and said the more expensive school should be the one selected. They also said that in this part of the law (Section 9 of the Education Act) there was nothing that limits the decision to justify the educational aspect of the evidence.

The decision in this case is important, as it has implications as to what the definition of “public expenditure” is. Going forward, Tribunal decisions must consider not only the public money that might be spent on education, but also other monies too, such as care costs that would also have to be funded from the public purse.

Previously a decision may have been made in favour of a cheaper school on just the educational basis. Because Upper Tribunal decisions create case law, all future tribunals and Local Authority decisions must now comply with the decisions made in this case.

If you find yourself in a similar situation, contact our expert team of Education Law Solicitors who can assess your case and help you throughout the process.

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