reach consensus as to the placement which
should be named in Part 4. Often, but not
exclusively, the difference will be between
a maintained school and an independent
special school (in cases in which paragraph
3(3) of Schedule 27 of the Education Act
1996 applies it is now clear that section 9
will also retain relevance). The issue really
boils down to one of cost, and whether the
additional expenditure required to meet the
As section 9 reads:
"In exercising or performing all their
The Court of Appeal, with lead judgment
provided by the Master of Rolls, Lord
Dyson,
handed
down
judgement
in
Haining v Warrington BC [2014] EWCA
Civ 398 on 4th April 2014. The decision
can be viewed positively by appellants in
SEND tribunal proceedings, but also on a
broader level because it may help to install
a greater level of certainty as to the correct
respective powers and duties under the
Education Acts, the Secretary of State and
local authorities shall have regard to the
general principle that pupils are to be
educated in accordance with the wishes of
their parents, so far as that is compatible
with the provision of efficient instruction
and
training
and
the
avoidance of
unreasonable public expenditure."
approach where Part 4 of a Statement of
SEN is concerned, particularly so where a
The crux of the issue before the Court of
child has complex needs which cut across
Appeal related to the meaning of the words
aspects of both educational and social care
provision (however, the ramifications of
Should a narrow or wide construction be
the judgement on a practical level remain
given to these words? The difference
to be seen).
between the two positions can, in certain
cases, have a critical impact on the cost
The background to this issue is a familiar
one to education lawyers and non-lawyers
with an interest in or experience of the area
alike. Parents and a local authority fail to
differential
between
competing
placements. The narrow view would mean
that the SEND tribunal should only look at
the expenditure incurred by a local
29
authority when discharging its education
sense, rather than being limited to the local
functions. So, for example, if this were
correct a parent would not be able to argue
cost of respite care could be considered
that a local authority would make a net
under section 9. In both CM and K, it was
saving by sending the child to an
accepted by the Upper Tribunal that
independent residential special school,
section 9 did permit an analysis of public
which would in turn mean that less money
expenditure outside of that incurred by the
would be spent from the l
local education authority. In particular, in
social care budget on respite services, as
K the Upper Tribunal endorsed the
the same would no longer be needed. The
approach adopted by Andrew Nicol QC in
wider view would allow the tribunal to
O and promoted a wider approach to
consider such
section 9 which would necessitate the
public purse in a more general sense when
SEND tribunal taking into account
considering the question of reasonableness
of public expenditure under section 9.
of a
particular placement, which would enable
The Court of Appeal, before reaching its
decision, provided a useful synopsis of the
which
the SEND tribunal to
public purse generally, and not exclusively
with the costs that fall on the education
will not be set out in any detail herein. The
judgement
as
a
whole
should
be
Against this trend in recent authorities,
considered as essential reading, to which
when the Haining case was before the
EPLI readers are directed. The key
Upper Tribunal, Upper Tribunal Judge
decisions of note in support of the wider
Williams expressed a level of concern
view of public expenditure which preceded
about the practical implications that it may
Ov
LB
Lewisham
[2007]
EWHC
2130
have.
The
relevant
extracts
of
his
judgement are set out in the Court of
(Admin), CM v LB Bexley [2011] UKUT
215 (AAC) and K v LB Hillingdon [2011]
referred. In short, he expressly adopted the
UKUT 71 (AAC). O confirmed that
narrow view of section 9, namely that the
section 9 had a wider meaning than
paragraph 3(3) of Schedule 27 of the
education budget (meaning that costs
Education Act 1996, and was concerned
incurred outside of this, such as respite
with public expenditure in the general
care costs, would not be material to the
30
analysis), and expressly departed himself
incurred by the Secretary of State or local
from the O judgement.
authorities in the discharge of their
The Court of Appeal took a different view
which is consistent with the earlier
authorities cited above. In support of the
finding that section 9 should be attributed
a wider meaning, the Court of Appeal
commented first that there was no express
limitation on the meaning to be attributed
to section 9 on the face of the statutory
provision itself; second that the word
would be nugatory if a narrow
meaning were given; and third that
difference in wording between section 9
and paragraph 3(3) of Schedule 27 must be
education functions, the word "public"
would
have
been
unnecessary.
The
Secretary of State and the local authorities
are
public
bodies
and
expenditure
incurred by them in discharging these
functions is bound to be "public" rather
than "private" expenditure. The word
serves
the
important
distinguishing
the
purpose
expenditure
of
from
private expenditure. Thirdly, the language
of para 3(3) of Schedule 27 should be
contrasted with that of section 9. Para 3(3)
requires the local authority to specify the
name of the school preferred by the parent
taken as intentional:
unless the attendance of the child at the
In my view, the correct meaning of the
school would be incompatible inter alia
words "public expenditure" in section 9 is
with "the efficient use of resources". As we
expenditure incurred by a public body, as
have seen, this phrase has been interpreted
opposed to "private expenditure" (ie
as referring to the resources of the LEA
expenditure incurred by a private body).
(now the local authority) and no other
There are three linguistic points to be
authority. In section 9 Parliament could
made. First, this interpretation accords
have used the words "so far as that is
with the natural and ordinary meaning of
the words. If it had been intended to limit
inefficient use of resources". If it had done
the expenditure referred to in section 9 to
so, it would have been clear (in the light of
expenditure incurred by the Secretary of
the authorities on para 3(3)) that the
State or local authorities in the exercise of
relevant expenditure was that incurred in
education functions, the section could and
the discharge of education functions and
would have said so. Instead, Parliament
no other. I accept, of course, that Schedule
chose
27 post-dated the predecessor to section 9.
the
general
words
"public
expenditure". Secondly, if the public
But
expenditure were limited to expenditure
nevertheless striking. In enacting para
the
contrast
in
language
is
31
3(3), Parliament did not seek to reproduce
communicate with each other
the language of section 9. It follows that a
about
natural reading of section 9 clearly
response, the Court of Appeal held
cost
implications.
In
that this point had been dealt with
by Andrew Nicol QC in O, who
The Court of Appeal also responded to
four points raised by counsel in support of
the narrow meaning. In addition to making
the general point that section 9 only
ability to rely on section 322 of the
Education Act 1996, and seek
information under this provision.
imposes a qualified duty to have regard to
parental preference, it was said:
c. Non-education
a. The wider definition will create
practical problems where an
education budget is ring-fenced.
In response, the Court of Appeal
held that the meaning of
fluctuate,
costs
but
mechanism
there
for
may
is
no
review
or
adjustment in light of the same.
In response, the Court of Appeal
inter alia held that there was in fact
cannot be affected by
particular local authority budgetary
a mechanism for review under
section 328(5)(b).
arrangements. However, it was said
that
d. An education authority will have
effect on a ring-fenced education
budget resulting, for example, from
the fact that the cost of respite care
comes out of that budget, this might
justify a refusal to accede to the
expertise
in
reasonableness
evaluating
of
the
education
costs, but will not in respect of
other types of costs. The Court of
Appeal held that if the person who
is making the assessment under
Alternatively, the local authority
may have to adjust its financial
arrangements to accommodate the
section 9 in the first instance does
not have the relevant expertise,
then s/he must obtain it.
As can be seen, for the time being at least
b. There may be difficulties if local
authorities
are
expected
to
the matter would appear to have been
clarified as the Court of Appeal has
32
determined in fairly unequivocal terms that
of the statutory provision, local authorities
the wider interpretation of section 9
must only
applies. That said, practitioners should
principle that pupils are to be educated in
keep an eye on any developments in case
accordance with the wishes of their
law emanating from the application of this
parents, so far as that is compatible with
case. This decision is of course primarily
the provision of efficient instruction and
good news for parents of children with
training
have regard to the general
and
the
avoidance
SEN who are appellants in SEND tribunal
proceedings,
particularly those whose
of
This
provision need
not, therefore, be a
children receive care and provision from a
straightjacket on local authorities. In cases
variety of public sources, the obvious
where this issue arises and section 9
example being respite care. Children with
applies, it is now appears to be clear that
very complex needs often require a variety
local authorities will need to demonstrate,
of local authority services and if there is an
in accordance with the wider construction
identified need for a residential placement,
of section 9, that the more costly
then it must now be said that it is correct
placement would be incompatible with
as a matter of statutory construction
reasonable public expenditure.
(reflecting the
that any net saving to the public purse that
will be made in sending the child to that
ALEXANDER LINE
placement is taken into account in the
Barrister, 3 Paper Buildings
costs analysis that the SEND tribunal
[email protected]
undertakes. Despite some of the practical
difficulties which were raised by Upper
Tribunal Judge Williams and then counsel
in the Court of Appeal proceedings, a
different approach surely imposes a sense
of
artificiality
which
can
ultimately
placement
which will meet his needs. To recognise
this is not to give section 9 an exaggerated
sense
of
importance
or
impact
in
proceedings; as recognised by the Court of
Appeal and as is evident from the wording
33