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Residential Placement: The Upper Tribunal strikes again

November 12th, 2012

Special educational needs (“SEN”) cases involving residential placements are often particularly contentious: the pupil will often have (or be alleged to have) particularly significant SENs, but the local authority will be potentially facing a very large bill for such a placement. The issue has again been considered by the Upper Tribunal in London Borough of Hammersmith and Fulham v JH [2012] UKUT 328 (AAC)

A is autistic and was placed as a border at a mixed residential and day independent school, PM School. The local authority issued a Statement of SEN naming PM as the placement in Part 4 of A’s Statement until July 2011, and then a mainstream, maintained sixth-form college, WM School, from September 2011. The First-Tier Tribunal (Special Educational Needs and Disability) allowed JH’s appeal against Part 4, ordering that only PM be named. There was a £37,000 per annum cost difference between the two.

Judge Lane in the Upper Tribunal allowed the local authority’s appeal on a number of grounds and remitted the appeal for rehearing.

First, the Judge referred to the well-known authorities that distinguished between a pupil needing a waking day curriculum (“WDC”) and simply needing consistency between home and school (eg. R(A) v Hertfordshire CC [2006] EWHC 3428 (Admin), [2007] ELR 95, The Learning Trust v SENDIST and MP [2007] EWHC 1634 (Admin), [2007] ELR 658 and R (TS) v Bowen (Chair of SENDIST) [2009] EWHC 5 (Admin) (see the Upper Tribunal’s judgment at [18]-[19]). The question a tribunal had to decide was whether it was necessary for a child to have an extended extracurricular educational programme continuing after the school day. The tribunal also had to weigh the educational advantages of such a curriculum against the cost to determine if the resultant expenditure was unreasonable (see at [20]). The Judge also referred to the guidance on residential placements at para.8:74 of the SEN Code of Practice (to which he considered the Tribunal had paid “mere lip service”) (see at [21]-[22]).

The Judge concluded that the Tribunal had failed to compare the evidence relating to the competing schools fairly to see if a WDC was reasonably required. The findings made by the Tribunal were inadequate and there did not appear to be anything of significance to distinguish provision at PM from that proposed at WM (see at [23]-[25]).

Secondly, the Tribunal failed adequately to deal with the local authority’s evidence in relation to a transitional plan (see at [15], [26]). Thirdly, having failed to analyse properly whether a WDC was required the Tribunal’s conclusion that the £37,000 of extra cost at PM did not represent unreasonable public expenditure also fell (see at [27]). The Tribunal had also erred in failing to explain why it preferred the evidence of JH and PM that A would not cope at WM over the available evidence that A would be able to cope (see at [30]).

The judgment also raises three further points of wider interest. First, it is not open to parents to reserve their position on Parts 2 and 3 of the SEN Statement for any remitted hearing, if they have not challenged Parts 2 and 3 the first time round before the Tribunal (see at [8]-[9]). Secondly, in an interesting demonstration of the less formal approach to procedure in the Upper Tribunal compared to old appellate regime in the High Court, the local authority’s SEN case worker was allowed to provide input at the Upper Tribunal hearing on background matters (see at [3]-[4]). Thirdly, the Judge emphasised to parties and tribunals that the SEN process was co-operative and that neither party should be allowed to take advantage of their own lack of co-operation where that results in a lack of proper assessment (in this case the local authority alleged lack of co-operation by the parent in allowing access to A). The Judge also observed that where such lack of co-operation occurs the Tribunal should take particular care to apply its expertise to the evidence before rejecting as inadequate an outline plan for provision from a local authority (see at [17]).

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