When the Upper Tribunal refuses to set aside a flawed SEN Tribunal Ruling

In a recent SEN tribunal ruling of KE v Lancashire County Council (Special educational needs – special educational provision – other) [2017] UKUT 468 (AAC), an Upper Tribunal judge has found that, despite the First Tier Tribunal making an error in a case concerning which school a child with complex special educational needs (SEN) should attend, the error was not so serious as to result in the decision being set aside.

The appeal concerned a boy with complex SEN arising from autism, visual impairment, post-traumatic stress symptoms and anxiety. He had an Education Health Care Plan (EHCP) which required the local authority to secure a school or other institution specified by parents (unless the school requested were unsuitable for the age, ability, aptitude or special educational needs of the child or young person concerned, or was incompatible with the provision of efficient instruction and training and resulted in unreasonable public expense).

The local authority considered that the boy’s needs would be best met by a special maintained school. The parents, on the other hand, had requested an independent special school to be named on their son’s EHCP, which would have cost the local authority just over £71,000 a year, more owing to transport and therapy costs. As the cost of the child’s attendance at independent special school was that much more expensive than it would be at the school proposed by the local authority, the local authority stated that this additional cost would be incompatible with the efficient use of resources.

The Upper Tribunal judge found that the First Tier Tribunal had failed to consider Section 9 of the Education Act 1996 at the first hearing. Section 9 requires the First Tier Tribunal on appeal to 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 expense. The judge held that a failure to consider Section 9 was an error of law.

However, the judge held that, despite the error, ‘it would be inappropriate to set the [tribunal’s] decision aside’ and he declined to exercise his discretion to do so. The reasons the judge gave were that it would be ‘impossible to see any sufficient advantage in the parents’ preferred school’ that could justify the additional costs and that ‘it is inevitable that any reasonable tribunal properly directing itself to the law and facts would have come to the same conclusionthat [the] First Tier Tribunal did’. The First Tier Tribunal’s decision was not therefore set aside.

This ruling demonstrates that despite errors of law in a SEND tribunal, where the facts clearly show that one school is significantly more costly than another, a failure to consider the principle that pupils are to be educated in accordance with the wishes of their parents will not always justify the setting aside of a tribunal’s decision. Schools with pupils with EHCPs should therefore take note that comparing the costs and benefits of two schools will be a key consideration when drawing up an EHCP and parental preference may not carry significant weight where the costs to the local authority of sending a child to one school far outweigh those of another.