Case overview 

This case explains what a local authority (LA) must show to prove that a child or young person’s attendance at a particular setting would be incompatible with the efficient use of resources. The child (C) had a Statement of Special Educational Needs (now known as an EHC plan under the current law).

In this case, C attended a maintained special school near to her home. Her mother asked that the Statement be amended to name a different maintained special school.

C was eligible for transport to the school the parent had asked for.  The LA argued that it would cost between £2,000 and £4,000 to transport C to this school, which it said would be an inefficient use of resources.  The LA argued this meant that it could reject the parent’s choice of setting.  

The parent appealed and the SEND Tribunal disagreed with the LA and said that the cost difference was not incompatible with the efficient use of resources.

The LA appealed to the High Court.

It was not in dispute that the parent’s choice was a suitable school for C – the LA’s only objection was on grounds of cost. The High Court confirmed:

“a two-stage test must be applied; that is, unless it can be shown that one of the exceptions [now in section 39(4) Children and Families Act 2014] applies, parental wishes must be followed. Only if one or more exceptions do apply should the local education authority or the Tribunal, in the case of an appeal, carry out the sort of broad balancing exercise which would weigh the amount of resources involved in maintaining the child at a particular school, the relative merits of possible schools for the child and a broad range of relevant educational factors.”

The High Court agreed with the SEND Tribunal’s judgment that the cost difference (between £2,000 and £4,000) was not incompatible with the efficient use of resources, and therefore it had not been necessary for it to carry out the balancing exercise described above.

What does this mean?

First, the LA or the SEND Tribunal must decide whether any extra expense in agreeing to the parent or young person’s choice of setting is disproportionate.

Then, if the extra expense is:

• not disproportionate, the parent’s choice of placement must be named, or
• disproportionate, the LA or SEND Tribunal needs to do a  balancing exercise which weighs the amount of resources involved in maintaining the child or young person at that setting, the relative merits of possible settings for the child or young person and a broad range of relevant educational factors.

This case remains relevant for naming a setting in an EHC plan, because the language which the judgement looked at is now in section 39(4) of the Children and Families Act 2014.

For more information, see our sections on choosing a school when you have an EHC plan and on home-to-school transport.