PLT Masthead 430

Masthead Education - Litigation

Upper Tribunal judge refuses to set aside flawed SEN school ruling

The First Tier Tribunal made a legal error in a case concerning which school a child with special needs should attend, but not one so serious that it required its decision to be set aside, an Upper Tribunal judge has ruled.

In KE v Lancashire County Council (Special educational needs - special educational provision - other) [2017] UKUT 468 (AAC) Judge Lane ruled in favour of Lancashire County Council, saying no reasonable tribunal could have come to any other decision despite the error.

Parent KE brought the action on behalf of 12-year-old child J who has complex special educational needs arising from autism, visual impairment, post-traumatic stress symptoms and anxiety.

His placement at a secondary school for pupils with learning difficulties had been unsuccessful and Lancashire considered his needs would be best met at a special maintained school with pupils with a variety of learning difficulties, about a quarter of whom were autistic and a further quarter showed autistic traits.

KE though preferred for J to attend an independent special school for autistic pupils but that would have cost the council nearly £71,000 a year more in transport and therapy costs.

Lancashire argued this would be incompatible with the efficient use of resources under section 39 of the Children and Families Act 2014.

The judge said the lower tribunal failed to consider section 9 of the Education Act 1996 (pupils to be educated in accordance with parents’ wishes), which constituted an error or law.

He said though: “Despite the error, it would be inappropriate to set the [tribunal’s] decision aside, and I decline to exercise my discretion to do so.

“When the costs and benefits of the two schools are compared, it is inevitable that any reasonable tribunal properly directing itself to the law and facts would have come to the same conclusion.”

Judge Lane said it would be “impossible to see any sufficient advantage in the parents' preferred school” that could justify the additional costs.

Mark Smulian

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