The parents of an autistic child appealed against a decision of the First-tier Tribunal confirming the school named by the local authority in the child's Statement of special educational needs.

The Upper Tribunal determined that the Statement of special educational needs had been too vague on the details of the local authority's duties to the child.  Since the Statement, rather than the tribunal's written reasons, would be referred to in case of dispute, the Statement needed to bear some relationship to what was actually said and found to be on offer. It should set out concrete provisions and do more than simply recommend types of provision. The tribunal which would rehear the matter should look at the Statement again to ensure that it was sufficiently specific:

“A SEN Tribunal should not rubber stamp a Statement that is inadequate. The Statement that was accepted in this case was vague on the ‘who, what, when and how long’ details that were meant to spell out the Local Authority’s duties to the Statemented pupil.”  

The dispute was also about placement. The local authority proposed that the child should attend a mainstream academy, whereas the parents wanted her to attend a smaller, independent mainstream school. Information about the independent school's special needs provision was sparse, but its inspection report indicated that the way in which it assisted children with special educational needs was good. The academy, on the other hand, had established resources and experience in special provision for children with autism and special educational needs in general. Because the independent school was 50% more expensive than the academy and had no specialist provision, the local authority considered that it represented unreasonable public expenditure. The tribunal indicated that it had not found any persuasive balancing advantage between the schools and that it was therefore logical to consider whether the academy was suitable because the difference in cost would be determinative. It went on to confirm the local authority's choice of the academy.

The Upper Tribunal set aside the First-tier Tribunal’s decision citing an error of law. An earlier case known as IM v Croydon LBC [2010] UKUT 205 (AAC) had set down the test the First-tier Tribunal should have applied when considering a parent’s representations for an independent school under s. 9 Education Act 1996:

1. Are both schools appropriate?
2. If they are, which is parent’s preferred school?
3. Would naming the parent’s preferred school be incompatible with the provision of efficient instruction and training or the avoidance of unreasonable public expenditure? If so, the school suggested by the LA must be named.

The First-tier Tribunal had been required to decide whether both schools were appropriate which it had failed to do. It had also failed to make any findings of fact about the provision that the independent school could make for the child. The failure to make findings had led it to decide, without any factual basis, that there were no persuasive balancing advantages. Additionally, in deciding whether the expenditure of public money was unreasonable, it was necessary to carry out a balancing exercise. The fact that the parents' choice was more expensive than the local authority's was not determinative. The benefits provided by the more costly school had to be considered and the full picture might justify the extra cost.

The full case report for EC v North East Lincolnshire LA (HS) [2015] UKUT 0648 (AAC) [2016] ELR 109 can be viewed online.

This case remains relevant to pupils with EHC plans, as s. 9 Education Act 1996 remains a relevant consideration where the parents of a pupil with an EHC plan have made representations for an independent school.

For more information, see the sections on what an EHC plan should contain and choosing a school or other setting in an EHC plan.