Case overview   

This case concerned the school placement for an autistic child. The parents sought a place at an independent school for autistic children. The local authority (LA) proposed a significantly cheaper school. The parents argued it was inappropriate as it was not a school for autistic children but those with emotional and behavioural difficulties (EBD).  

At the SEND Tribunal hearing, the head teacher of the LA’s choice of school said:

• it could meet all of the child’s needs
• its nature had changed dramatically in recent years and it was no longer an EBD school, and
• it was registered with the National Autistic Society (NAS).  

The SEND Tribunal decided the LA’s choice of school could deliver the provision necessary to meet the child’s special educational needs (SEN), and that the parents’ preferred school would therefore be unreasonable public expenditure. It commented that to an extent it had been necessary to take the head teacher’s evidence on trust as the LA had not submitted much written evidence about the school, but that his evidence had been “powerful and persuasive”.  

The parents challenged the SEND Tribunal’s decision in the High Court, saying that:

• the head teacher’s evidence had misled the SEND Tribunal
• subsequent investigations had revealed that the school was registered with the Department for Education as a school for EBD and not for autistic children, and
• it was not registered or accredited with the NAS - it had simply added its own details to an open-access database that was provided but not quality assured by the NAS.     

The LA said that it didn’t need to disclose these facts; they were publicly available, and the parents could have obtained them for themselves.   

The Court disagreed with the LA. The judge said the LA role in a SEND Tribunal appeal is to assist the Tribunal by making all of the relevant information available, “placing all of its cards on the table including those which might assist the parents’ case.”  

The legal test for determining whether a SEND Tribunal decision should be quashed (rejected as invalid) on the grounds that information had not been disclosed to it is to ask whether there is a realistic possibility that the missing information could have altered the SEND Tribunal's conclusion.  

Registration with the NAS had provided a favourable starting point for the SEND Tribunal’s consideration of whether the school was appropriate, and it might not have have taken the head teacher’s evidence so much on trust if the true position had been known. The school’s registration as an EBD school was also a relevant factor that should have been taken into account. 

This meant that there was a realistic possibility that the SEND Tribunal would have come to a different conclusion if it had had the missing information. So the Court quashed its decision and the case was sent back for another Tribunal hearing so it could be re-decided.

What does this mean?

The LA’s role in a SEND Tribunal appeal is to assist the Tribunal by making all of the relevant information available, “placing all of its cards on the table including those which might assist the parents’ case.”

Where it appears that the LA may be, or may have been, holding back information that might assist a parent or young person’s appeal, they can refer it and the SEND Tribunal to this case. 

This case could be used to support a request for an order that the LA should produce additional evidence, information or documents.  

You can check whether a school is registered to offer particular types of SEN provision online. Registration is a relevant factor for the SEND Tribunal to consider when deciding whether the school can make the special educational provision required to meet a child’s needs – but this isn’t decided on registration alone.

The full case report for JF, R (on the application of) v London Borough of Croydon and the Special Educational Needs and Disability Tribunal [2006] EWHC 2368 (Admin) is available.