Judgment Paves the Way for Disabled Children and Their Families
Simpson Millar LLP acted for the successful appellants in the case of WH v Warrington, a case which has major implications for disabled children and children with severe special educational needs.
The case concerned a boy, B, with severe learning difficulties whose parents felt his needs were not being met at the day school
where he was placed by the local authority; they felt he should be placed in a residential school.
Due to the severity of his needs and the family's circumstances, the council gave respite care for four nights a week which was in fact provided at the school the parents wanted. The arrangement which the council had in place was more expensive
than a full time residential placement at the parents' choice of school.
The council argued that the day school was considerably cheaper than the residential school. As they are entitled to refuse to comply with parental preference if to do so would incur unreasonable public expenditure
, they were not required to place B at his parents’ choice of school.
They also argued that, in making that calculation, they were entitled to take into account only education costs
and not overall costs to the public purse.
The parents therefore appealed to the Special Educational Needs and Disability Tribunal
, arguing that the tribunal should take into account all public expenditure associated with the council's choice of school.
Overturning previous decisions, the tribunal found in favour of the council
and that they were entitled to ignore respite care costs when comparing the respective costs of the two placements, and the Upper Tribunal also found in the council's favour.
Simpson Millar LLP, in co-operation with IPSEA (Independent Panel for Special Educational Advice) and David Wolfe QC agreed to act for the parents in the Court of Appeal on a no win no fee basis.
The Court of Appeal issued its judgment in the case on 2nd April, upholding the parents' appeal
Lord Dyson, the Master of the Rolls, held that the term "public expenditure" in section 9 Education Act 1996 bears its natural meaning, i.e. any expenditure incurred by a public body, and it could not be restricted to expenditure in the provision of education. Therefore, in this case when deciding on a school placement for B, the council and tribunal must take into account social care costs including respite care when comparing the cost of the parental choice of school with the arrangements proposed by the council.
The case will now be remitted back to the tribunal for reconsideration of the appeal on this basis.
The decision has major implications for children whose disabilities and learning difficulties are such that they need to be placed in specialist residential schools for educational reasons. It is often the case that such children have significant care needs and that the reality is that, if they are placed in residential schools, such needs can be provided at the school - thus saving councils quite substantial sums in terms of the care which they would otherwise have to provide if the children are placed in day schools. It is highly artificial and unrealistic to ignore that fact when calculating the cost of placement at specialist residential schools.
As a result of this decision, councils and the tribunal will have to take into account the actual expenses involved
and, if it is the case that placement at a specialist residential school that can meet the child's needs will actually cost less than a day school placement when social care costs are taken into account, the child must be placed at the residential school.
This will make it easier for the parents of such children to persuade councils to place them at the schools of their choice
, and to win tribunal appeals if councils refuse to do so.