Hammersmith & Fulham LBC (Special educational needs : Special educational provision - naming school) [2015] UKUT 523 (AAC)

UKUT-AAC
Hammersmith & Fulham LBC (Special educational needs : Special educational provision - naming school)
[2015] UKUT 523 (AAC) · 2015-09-17
[14]“14. In other words, as we understand it, if unused special school places represent a loss which can be made good by making efficient use of them, then letting the child be unnecessarily placed elsewhere is an inefficient use of such resources.”78. Sedley LJ also made the point, relevant in the present cases, that while “unreasonable public expenditure” is not a term of legal art, it is not “in its present context…capable of producing opposite outcomes on the same facts and figures depending on the individual tribunal’s choice of accountancy method”.79. Sedley LJ identified section 9’s purpose as to “prevent parental choice placing an undue or disproportionate burden on the education budget”. I note that, since then, the Court of Appeal has held section 9 is not limited to education expenditure (see Haining ). However, that does not matter for present purposes. The thrust of the Court’s finding about the purpose of section 9 was not affected by Haining case and, in any event, the present appeals are only about education spending.80. Sedley LJ found “the question is what additional burden it will place on the LEA’s annual budget” and “that means, generally speaking, that the existing costs of providing [the maintained school] and of staffing it and its hearing-impaired unit do not come into account”. And so “what Parliament has called for in the ordinary run of cases is a consideration of the burden which the respective placements will throw on the annual education budget when matched against their educational advantages and drawbacks for the child in question”.81. Under that ‘additional burden’ approach, costs that the local authority “would be incurring with or without the proposed placement are accordingly not in general relevant”. In principle, therefore, the local authority’s arguments were accepted. If the required specialist teaching and transport would be provided under previously paid-for arrangements they were to be excluded for section 9 purposes.82. Once the additional burdens associated with the rivals schools are identified, a judgement can be made as to whether parental preference constitutes unreasonable expenditure. On this point Sedley LJ said:
“the parental preference for an independent school over an available state school, while perfectly reasonable, may have difficult cost implications for the LEA. In that event it is for the LEA, or on appeal the SENT, to decide whether those cost implications make the expenditure on the independent school unreasonable. This means striking a balance between (a) the educational advantages of the placement preferred by the parents and (b) the extra cost of it to the LEA as against what it will cost the LEA to place the child in the maintained school.” 83. I note that Sedley LJ said that his approach “chimes” with that taken by the House of Lords in Harrow , as referred to earlier in his judgment. In describing Harrow , I again note that Sedley LJ understood the decision to be that “if unused special school places represent a loss which can be made good by making efficient use of them, then letting the child be unnecessarily placed elsewhere is an inefficient use of such resources”
. Coventry City Council v SENDIST [2007] EWHC 2278 (Admin) 84. A local authority specified a maintained school in a child’s statement and refused to specify an independent school. The SEN Tribunal allowed the parents’ appeal. The independent school’s annual fees were £11,500. The Tribunal accepted that, at the maintained school, the child would require “additional teaching support” at an annual cost of £13,000. On those figures, it is not surprising the Tribunal concluded the independent school would not involve unreasonable public expenditure. 85. The local authority appealed to the High Court, arguing the Tribunal erred in law by including the cost of additional teaching support because this was “not an additional cost to the LEA”. Under the statutory arrangements for delegation of funding for maintained schools, the maintained schools’ budget had been set and the child’s needs could be met from within that budget. There was no additional public expenditure. 86. Underhill J (as he then was) analysed Oxfordshire , in particular Sedley LJ’s finding that “the question is what additional burden it will place on the LEA’s annual budget”. He considered that Sedley LJ “plainly did not have in mind the distinction on which [the authority] relies between payment by the LEA directly from its own pocket and payment by the school under delegated arrangements”. The judge went on to find that “the precise route by which payment is made out of what is ultimately the LEA’s budget is plainly immaterial to the purpose underlying section 9”. Applying that, Underhill J rejected the authority’s appeal. 87. I should add that I get the distinct impression from the judgment that Underhill J might have felt hampered in his consideration of the appeal by the paucity of the local authority’s arguments and the late stage at which many of them were put or refined. Slough v SENDIST [2010] ELR 687 , [2010] EWCA Civ 668 88. The only reasoned decision of the Court of Appeal in this case was given by Sedley LJ who of course also gave the only reasoned decision in Oxfordshire . 89. A Tribunal found that the annual cost for section 9 purposes of a maintained school was £32,000 whereas the annual fees for the parents’ preferred independent school were £10,000. The authority argued the Tribunal erred in law and should have found the “true (or marginal)” cost of the maintained school to be around £4,000. 90. Factually, this case was unusual. The independent school’s usual fees were £36,000 but the parents’ fee was reduced to £10,000. This affected the Court of Appeal’s approach to the appeal, as Sedley LJ explained at paragraph 9 of his judgment. Since the Court of Appeal rejected the local authority’s challenge to the Tribunal’s finding that the fees were £10,000, the authority in fact had precious little scope to argue that any error made in identifying the additional costs of the maintained school was material. 91. The Court of Appeal did not give a ringing endorsement of the Tribunal’s costings of the maintained school at £32,000. They were “delphic” (para. 11). However, the Tribunal also seemed to harbour doubts because it also found that, whatever the actual additional cost, it was more than the £10,000 charged by the independent school. Sedley LJ said that this was “a factual finding, made by a specialist tribunal with knowledge of the field, that the apportioned costs of providing for this child in a maintained school, whatever their precise amount, would inevitably exceed the £10,000 for which [the independent school] was prepared to accept [the child]”. 92. That meant the Tribunal’s decision would stand unless the local authority were right that “admission to a maintained school with space for the child is cost-free apart from any special requirements that the child brings with her”. Sedley LJ said the authority’s argument was unsustainable. It was legitimate for the Tribunal to “take a short cut” and decide that, whatever the actual relevant cost of the maintained school, it had to be more than the £10,000 cost of the independent school. For my part, I consider that this case, given its unusual and opaque facts, does not advance matters one way or another. EH v Kent CC [2011] AACR 36 , [2011] ELR 433 93. The rival schools were a maintained mainstream (not special) school and an independent school. The parents appealed against a decision of Upper Tribunal Judge Levenson on the ground that he erred in law by “holding that the FtT did not need to consider the real, full or notional per capita cost of a placement (and was concerned only with the marginal cost)”. 94. The dispute centred on learning assistant costs. The First-tier Tribunal accepted the local authority’s evidence that the necessary 20 hours a week support would be supplied by the maintained school. My reading is that the authority argued this provision would be met by the school’s existing learning support assistants. 95. The Court of Appeal held it was wrong to argue that public expenditure did not occur unless and until a maintained school spends monies within its delegated budget share, so that a school’s accounts would need to be examined in order to resolve a section 9 dispute. Sullivan LJ said:
“25…It seems to me that there can be “public expenditure” for the purposes of section 9 at either or both stages of the process: when the LA allocates public funds to the school, and when the school spends those public funds.” 96. The Court also analysed Coventry and Slough . The local authorities there wrongly distinguished between payment by itself, and payment by the school, as a prelude to arguing that, even though there would be a need for additional payment by the school, the absence of an additional payment by the local authority rendered a maintained school placement “cost free”: “the Tribunal was entitled to reject such a "cost free" approach as artificial, and as not being a fair reflection of the cost to the public purse of placing a child in a maintained school for the purpose of comparison with the cost of placing the child in the parents' preferred alternative.” 97. The Court went on to find “whether a child’s parents’ choice of school would be compatible with the avoidance of unreasonable public expenditure is a question of fact to be answered by the FtT in a common-sense way. It is for the FtT to decide what evidence it considers most helpful in resolving this issue in any particular case. In undertaking that task it is entitled to have regard to other information, such as a school’s accounts, if it is not satisfied that the figures based on the LA’s budgetary arrangements are a fair reflection of the cost to the public purse of educating the child at the school in question.” 98. Having added that the local authority’s budgetary arrangements (which I note are to a significant extent prescribed in regulations) will usually be a sensible starting point Sullivan LJ went on: “30. If the LA's budgetary arrangements do make provision for the payment of an AWPU to the school there is no reason why the FtT should not accept that the AWPU, together with any additional costs specifically incurred in respect of the child in question, for example transport costs or the costs of therapy or learning support if an additional therapist or learning support assistant has to be employed by the school, or if an existing therapist or learning support assistant at the school has to be paid to work additional hours (if it is satisfied that there are such additional costs), are a fair reflection of the cost to the public purse of educating the child at that school.” 99. Sullivan also gave guidance on cases without an AWPU or where a Tribunal is satisfied that the AWPU-funding, plus the additional costs mentioned in para. 30 of its judgment, do not “fairly reflect the cost to the public purse”
. In that case, however, there was “no reason to suppose that [the AWPU] did not fairly represent the cost of [the child’s] placement”. The Upper Tribunal’s decision was upheld. I note that, in this case, because of the type of maintained school involved, the Court of Appeal was not concerned with the implications of place funding. Haining v Warrington BC [2014] AACR 28 , [2014] WLR(D) 152 100. The issue in this case was whether section 9 was concerned with public expenditure other than on education functions, for example the affect of a particular placement on social services expenditure. The Court of Appeal held that it was. 101. The Court also said this:[32]“the meaning of "public expenditure" cannot be affected by the particular budgetary arrangements that local authorities may make from time to time in managing their financial affairs. In many (if not most) cases, the only relevant public expenditure will be that incurred by the local authority in the discharge of its education functions in the particular case. In those cases, the question of whether there will be unreasonable public expenditure will depend on a comparison between the direct cost of placing the child at school A and the direct cost of placing the child at school B and nothing else. ” The arguments on these appeals The arguments concerning place funding102. In all four cases I granted permission to appeal on the ground that, arguably, the First-tier Tribunal erred in law in making findings about the implications of the maintained school funding regime for the purpose of carrying out the section 9 cost comparisons.103. In three cases, the issue is place funding (funding fixed before the relevant funding period according to places rather than pupils). In H v Lancashire CC the issue is different and concerns the implications of the £6,000 notional SEN budget under regulation 11(3) of the funding regulations.104. On the place funding issue, Mr Bowers, for Hammersmith & Fulham LBC, argued that Oxfordshire requires place funding to be left out of account. Haining did not change that, nor did any recent funding changes. Mr Fulwood for Lancashire CC agreed, arguing that the £10,000 place funding was not an “additional burden” as contemplated by Oxfordshire . At the hearing, Mr Bowers also relied on the underlying rationale for the different funding treatment of special schools which he said was to provide funding stability for the education of especially vulnerable children, that form of education requiring more complex organisation and planning than mainstream education.105. Mr Wolfe Q.C. for F argued the Tribunal was entitled to find as fact that the £10,000 place funding was an additional cost. He further argued the concept of place funding under the funding regulations was akin to AWPU-funding and, in support, referred to national guidance showing, he said, that numbers of reserved places would usually be based on the number of students in the last academic year. Mr Bowers did not agree with this interpretation of the guidance. Mr Wolfe also relied on a Hammersmith council policy document that said it would continue to “agree with each school the number of places to be provided for the year ahead”. Since AWPU-funding represented an additional cost ( Kent ), for section 9 purposes, place funding should too. L’s parents aligned themselves with Mr Wolfe’s arguments.106. Mr Holland for O’s parents argued that the Tribunal erred in law by excluding the £10,000 place funding. This should have been included, by parity of reasoning with the Coventry case. The arguments about SEN funding for maintained mainstream schools without reserved places107. Mr H – who did not have professional representation – argued the Tribunal incorrectly calculated the direct costs of the maintained school. Haining prohibited the Tribunal from taking into account the authority’s budgetary arrangements. Mr H also argued the Tribunal had “completely failed to explain” how his son’s statement could be implemented at a cost to the public purse of £5,568.56. In particular, how could the learning support assistant be funded on these figures? Mr H also argued that further expenditure would be necessary because this maintained school had no surplus places. I need not address this point as the appeal is going back to the Tribunal for re-hearing and it will be concerned with current circumstances (as per the Goldthorpe case).108. Mr Fulwood, for Lancashire CC, argued the Tribunal correctly discounted the £6,000 in SEN “base funding” in line with Oxfordshire . This “would have been spent” whether or not Rafi attended. Mr Fulwood also disputed that Haining affected the existing authorities, including Oxfordshire , about which costs were and were not to be taken into account. So far as the teaching assistant issue was concerned, he argued that the Tribunal rightly concluded it would not involve any additional cost for section 9 purposes. Whether the Tribunal’s alternative finding in F’s case involved an error of law109. In F’s appeal, the local authority were granted permission to appeal on the ground that the Tribunal erred in law in making its alternative finding. To recap, this finding was that even if place funding was left out – making the independent school even more costly – Alice’s placement at the independent school would not constitute unreasonable expenditure.110. Mr Bowers for the authority argued there was “no evidence” to support the findings of transition-related anxiety; no provision made for anxiety difficulties in the statement nor was it included as a special educational need; “no evidence” Alice’s progress would be hindered by a placement at the maintained school; the Tribunal failed to take into account additional benefits for Alice of attending the maintained school; and the Tribunal failed to take into account any of the evidence about how the maintained school would support Alice in any transition.111. Mr Bowers also argued that “as a matter of public policy, parents who agree to make their own educational arrangements for their children should not be able to benefit and have their school fees funded in circumstances where the child is close to a phase transfer and it is argued it would be prejudicial to move the child (see para. 20 of W v Gloucestershire CC [2001] EWHC Admin 481)”. This is simply not what Gloucestershire says. All para. 20 does is express confidence that Tribunals will spot parents who are “seeking to abuse the system”. No evidence has been put forward to suggest that has happened here, either before the First-tier Tribunal or myself.112. Mr Wolfe Q.C. countered by arguing that the Tribunal’s alternative finding was an exercise of judgement made by an expert tribunal which could not be interfered with on an appeal concerned with points of law. He also refuted point-by-point the specific criticisms made by Mr Bowers. Treatment of transport costs in O’s case113. Mr Holland in O’s case argued the Tribunal erred by including transport costs within the costs of the independent school placement or, at least, failed adequately to explain why it had rejected the parents’ offer to provide their own transport. I note that this was not the argument recorded by the Tribunal (it said the parents suggested an existing taxi service could be used) Mr Fulwood’s argument for Lancashire was that the local authority were under a duty to provide transport and so the Tribunal was entitled to take into account the costs of transporting to and from the independent school. Conclusion on the main issue: place funding and the application of section 9 EA 1996114. The early authorities drew a distinction between AWPU-funding (school funding that was considered to be directly related to pupil numbers) and place funding (funding for a pre-determined number of places rather than by reference to pupil numbers). In Harrow , the House of Lords held it was right to have regard to the fact that a funded special school place would go unfilled were a child to attend an out-of-area school. While that was not a section 9 case, it is significant for present purpose because it formed part of the reasoning process of the Court of Appeal in Oxfordshire .115. In Oxfordshire , Sedley LJ began, in para. 14, by setting out his understanding of Harrow :
“if unused special school places represent a loss which can be made good by making efficient use of them, then letting the child be unnecessarily placed elsewhere is an inefficient use of such resources”
. That was all Sedley LJ really said about Harrow . Later Sedley LJ set out his ‘additional burden’ approach. Costs that the local authority “would be incurring with or without the proposed placement are accordingly not in general relevant”. Sedley LJ said his approach “chimed” with the House of Lords’ decision in Harrow . 116. Oxfordshire was not itself about place funding or something similar. However, the Court used, in the reasoning which led to its ‘additional burden’ test, the Harrow findings about the inefficiency of unused special school places. This was part of the rationale for deciding that services that were already been paid for – taxis and teachers in that case – were not to be treated as an additional cost. Once it is all un-picked, I believe part of the ratio of Oxfordshire is that place funding (in the sense described above) is not an additional cost of a maintained school, for section 9 purposes, if the school has unfilled places. The paid-for teaching and taxi service were akin to the unused special school place referred to in Harrow . That is why Sedley LJ said his decision chimed with Harrow and that is why his decision, to my mind, involves a finding that place funding for unused places is not an additional cost for section 9 purposes. The Upper Tribunal is bound by the Court of Appeal’s findings of law as expressed in the ratio of its decision. 117. I put this point to the parties at the hearing. Mr Wolfe Q.C. argued that in Harrow the distinction between funding mechanisms was relevant due to the particular funding regulations in place at that time. It could not be relied on for present purposes. I do not agree with this. The courts took into account the wastefulness of unused special school places. The potential for funded special school, or SEN-reserved places in mainstream schools, to go unfilled remains under the current funding legislation. 118. If, however, I am wrong about the ratio of Oxfordshire I conclude that, by simply applying the Oxfordshire ‘additional burden’ approach, place funding under the 2013 funding regulations is not an additional cost for section 9 purposes. That funding is unaffected by attendance. It has to be made available to the school and, if the school has fewer children than funded places, I can identify no legislation for it to be clawed back. If the child does not attend, thereby leaving a place unfilled, the local authority will fund both that place and the independent school fees. The fees are an additional cost for section 9 purposes but the place funding is not. 119. It is true that, as Mr Wolfe Q.C. argued, place funding and the AWPU share some legal characteristics. Like place funding, the AWPU does not in fact directly match the number of pupils at the school during the funding period. AWPU funding is fixed by reference to pupil numbers in the October before the start of the funding period. Pre-determined AWPU sums must be made available regardless of actual pupil numbers at the start of the funding period. For this reason, Mr Wolfe argued that place funding and the AWPU were equivalents so that place funding, like the AWPU, should be taken as an additional cost for section 9 purposes. No party argued that, due to the similarities, the AWPU should be left out of account. 120. This is not in fact a new feature of the AWPU-funding mechanism: (a) at the relevant time for the Oxfordshire decision, reg. 11 of the Financing of Maintained Schools (England) Regulations 2000 required pupil numbers to be ascertained on a date to be determined by the authority. If only one date was specified, this had to be before the start of the funding period. If more than one, at least one had to be a date before the start of the funding period; (b) at the relevant time for the Kent decision, reg. 15 of the School Finance (England) Regulations 2008 required pupil numbers to be ascertained in the January before the start of the funding period; (c) at the relevant time for the Harrow decision, the school funding legislation was less prescriptive and the important instrument was the authority’s financial scheme required by the Education Reform Act 1998. Section 38(3) of the 1998 Act required the scheme to take into account pupil numbers on such date as specified in or under the scheme. A DfE circular (2/94) gave guidance to local authorities about the scheme but I have not seen a copy. 121. Under the current funding regulations, there are material differences between the AWPU and place funding: (a) the regulations provide for a school’s budget share to be re-determined if a pupil leaves during the funding period. There is no equivalent for special schools and reserved SEN places in mainstream schools. Mr Wolfe argued in his skeleton argument that there is a mechanism for clawing back unspent place funding or something akin to that. I cannot find any legislative basis for that and none has been drawn to my attention; (b) AWPU-funding is linked to numbers of pupils rather than places. While pupil numbers are to be ascertained some months before the start of the funding period, both dates fall within the same school year. I think it is likely that pupil transfers are concentrated in the gap between one school year ending and another beginning. At the hearing, the parties disputed whether special school, and SEN-reserved places, were fixed annually or biannually. However, that does not matter (although the Education Funding Agency’s 2014/15 Revenue Funding Arrangements guidance, relied on by Mr Bowers at the hearing tends to support his biannual view). Whatever the cycle, the differences between AWPU-funding and place funding remain. 122. One cannot be scientific about this but these differences probably generate a better match between actual pupil numbers and AWPU-funding than between the up-take of special places and funding of those places. While I accept that AWPU-funding (in its current and former guises) is not as closely related to actual pupil numbers as some of the earlier authorities have assumed, I do not accept Mr Wolfe’s argument that, for section 9 purposes, place funding is equivalent to the AWPU so that, in accordance with Kent , place funding is an additional cost for section 9 purposes. If there is any conclusion to be drawn from similarities between AWPU-funding and place funding, I do not think it is the one suggested by Mr Wolfe. 123. I do not accept the argument that Haining modifies or disapproves of the Oxfordshire decision. Oxfordshire was referred to in Haining and if the Court wanted to case doubt on its correctness it would have done so in terms. The additional burden approach set out in Oxfordshire is not called into question by Haining . 124. I accept the Court of Appeal’s finding in Haining that “the meaning of “public expenditure” cannot be affected by the particular budgetary arrangements that local authorities may make from time to time in managing their financial affairs” might appear to jar with Sullivan LJ’s statement in Kent , that a local authority’s “budgetary arrangements” ought to be the starting point for identifying the additional costs. However, the Court of Appeal in Haining was responding to a specific argument built on the point that virement of monies from a local authority’s social services budget to its education budget was difficult or impossible. Moreover, in Haining the Court’s finding had a particular premise, that a local authority could alter budgetary arrangements. A local authority has no choice about the budgetary arrangements that are required by the funding regulations. They must be complied with. When viewed in its correct context, Haining does not call into question what Sullivan LJ said in Kent . 125. I also do not accept that the Coventry decision (even if it were binding on the Upper Tribunal) is determinative. It cannot justify a different treatment of place funding than that called for by Oxfordshire . In summary 126. Generally, a comparative cost analysis of an independent school and a special school, for the purposes of section 9 of the Education Act 1996 (EA 1996), is to proceed on the basis that, where the special school has a vacancy, its place funding is not to be treated as an additional cost. The same approach is to be taken when comparing the costs of an independent school with a maintained school with SEN-reserved places (a specialist unit). In both cases, AWPU-funding (Age-Weighted Pupil Unit) is irrelevant (there is no AWPU). But, in line with the Court of Appeal’s decisions in Oxfordshire and Kent , local authority ‘top-up’ funding for the child’s placement is an additional cost to be taken into account. 127. Where the choice is between an independent school and a maintained mainstream school without reserved places, the AWPU normally represents an additional cost for the purposes of section 9, in accordance with Kent . Further, additional funding required in order to meet the child’s needs is to be taken into account, in accordance with Kent and Oxfordshire . 128. If a local authority has some kind of dispensation from the normal requirements of the regulations or it has a financial scheme that deviates from the funding norm, it must bring this to the attention of the Tribunal and the other party. The same applies if its per pupil funding for maintained mainstream schools is greater than the AWPU minimum. That is the sum to be taken as the additional cost since it is the money that follows the pupil. Conclusion on other issues and outcome of the appeals Hammersmith & Fulham v L 129. The Tribunal in Hammersmith & Fulham v L erred in law. It misunderstood the effect of the statutory arrangements for maintained schools and wrongly took into account the maintained school’s £10,000 place funding. As the undisputed evidence was that there were vacancies at the school, the place funding should not have been brought into account for section 9 purposes. 130. In particular, the Tribunal misdirected itself in law in the following respects: (a) by finding that all providers, including those in the independent sector, are funded on an equivalent ‘Place Plus’ basis. This was wrong. To my knowledge, the statutory funding scheme does not allocate anything to independent schools. Instead, where an independent school is named in a child’s statement the local authority is simply obliged to pay the whole of the education fees; (b) by equating, for section 9 purposes, place funding with AWPU-funding. They are not broad equivalents, for the reasons explained above; (c) by finding that Oxfordshire was distinguishable because it was concerned with a “significantly different funding system”. The funding structure described in Oxfordshire – AWPU funds being related to pupil numbers, special schools being funded according to places – is similar to the funding system applicable when the Tribunal made its decision. 131. The parties were agreed that, in the event that I found an error on a point of law I should not set aside the Tribunal’s decision. That is because, since February 2015, a different London Borough has been responsible for making the provision in Madeline’s statement. I agree I should not set aside the Tribunal’s decision (under section 12 of the Tribunals, Courts and Enforcement Act 2007 the Upper Tribunal has a discretion whether to set aside a decision involving an error on a point of law). In the circumstances, to set aside the Tribunal’s decision, and the statement which it ordered, would be pointless. 132. I wish, however, clearly to state that I do not decide that Madeline’s current placement represents unreasonable public expenditure. The Tribunal did not give an alternative decision, addressing section 9 in the event that it wrongly quantified costs. No one has any idea what it would have decided if it had addressed that point. Hammersmith & Fulham v F 133. The Tribunal erred in law by taking place funding into account as an additional cost for section 9 purposes. Since the undisputed evidence was that there was an unfilled place at the maintained school, the place funding should have been left out of account. 134. However, I agree with Mr Wolfe Q.C. that the Tribunal’s alternative finding contained no error of law and so I do not set aside the Tribunal’s decision. 135. Some of the local authority’s grounds of appeal were that the Tribunal had “no evidence” for its anxiety-related findings. But as Mr Wolfe points out, anxiety is referred to in Part 2 of Alice’s statement as is her tendency to “feel overwhelmed” and become “quickly upset” by challenging tasks. And, if the provision in Part 3 aimed at developing self-esteem is read with Part 2 in mind it is obvious that Part 3 was influenced by Alice’s psychological make-up. 136. The grounds arguing the Tribunal did not take into account the maintained school’s ability to help Alice transition and provide her with educational benefits are answered by the points made by Mr Wolfe. The Tribunal recognised the maintained school’s strengths, including in relation to transition. They were not overlooked. Despite that, the Tribunal concluded that the psychological effects of a transfer at this point in Alice’s educational life to a school that she would only attend for one year were such that the cost differential did not constitute unreasonable public expenditure. As a Tribunal comprised of members chosen for their specialist expertise, it was entitled to make that finding. O v Lancashire CC 137. The Tribunal correctly left out of account the maintained special school’s place funding. It did not err in law in that respect. 138. However, the Tribunal did err in law in its treatment of the disputed issue of transport costs and, for that reason, I set aside its decision and remit to the First-tier Tribunal for re-hearing. If there was no additional transport cost, it seems the cost difference between the rival schools would have been £3,000 rather than £9,000. That cannot be considered immaterial. 139. The Tribunal made no clear finding as to transport costs. Despite that, it applied section 9 on the basis that transporting Javi to the independent school would cost some £9,000. It then hedged its bets by stating this might be reduced “if it were established that transport costs could be reduced”. Given the significance of this issue, the Tribunal either needed to make a clear finding as to transport costs or explain why, despite the uncertainty, the independent school placement represented unreasonable public expenditure. It did neither and so I accept Mr Holland’s argument that the Tribunal gave inadequate reasons for its decision. The decision is set aside. 140. I do not accept Mr Fulwood’s argument for Lancashire CC that, since the local authority was duty-bound to fund transport to the independent school, the Tribunal was entitled to take the cost into account. This misunderstands the relevant legislation. 141. The source of a local authority’s duty to make school travel arrangements for a child is section 508B of the EA 1996. But the duty does not apply to a child where “ travel arrangements relating to travel in either direction between his home and the relevant educational establishment in relation to him, or in both directions, are provided free of charge in relation to him by any person who is not the authority” (section 508B(2)). No guidance or internal policy, of the type I was referred to at the hearing, can change that legal fact. The authority was not bound to fund transport costs if someone else would provide transport free of charge. In the light of the limited facts found and explanation given in relation to transport, the authority’s potential duty to transport Javi to and from the independent school does not cure or render immaterial the error law described above. H v Lancashire CC 142. Mr H’s grounds of appeal argued the Tribunal wrongly left out of account £6,000 in SEN costs on the basis that these were to be met by the maintained school from its budget share. However, this was not pursued further in his skeleton argument. Given the potential importance of the point and since I have not had full argument on it, I do not make a finding as to whether all or any costs under the regulation 11(3) £6,000 threshold (the ‘notional SEN budget’) are to be treated as an additional cost for section 9 purposes. 143. But I accept Mr H’s argument that the Tribunal gave inadequate reasons for its finding that the costs of the full-time learning support assistant would be absorbed by the school’s existing budget share. For that reason, its decision is set aside and remitted to the First-tier Tribunal for re-hearing. 144. Regulation 11(3) of the funding regulations carries an implication that a child’s SEN-related costs, once they exceed, £6,000 will attract additional local authority funding. That additional funding has I believe always been viewed as an additional cost for section 9 purposes (see Kent for example) and I do not recall ever seeing a school funding appeal where it was left out of account. That was not done in this case because the Tribunal accepted the authority’s argument that “the actual costs of the teaching assistant was not taken into account by the LA as the LA would simply pay top-up according to its banding system and not by way of a refund of actual costs”. I am not at all sure what this means but, in my view, it was an error of law – a legal misdirection - not to include the difference between the £6,000 SEN threshold and the costs of employing a new teaching assistant to work exclusively with Rafi. 145. I also agree the Tribunal gave inadequate reasons for preferring the local authority’s figures for the costs of a teaching assistant to Mr H’s. I do not see how Mr H can understand why his case was rejected. If the recent job advert for a teaching assistant relied on by Mr H, with its significantly higher salary range, was correct, how could the local authority justify putting forward a much lower salary? I also agree the Tribunal failed to explain why it did not include, within the teaching assistant costs, those matters which Mr H said should be included, in particular pension contributions that the authority was required to make. It is difficult to see why these should not be included but this will need to be addressed by the next Tribunal. A child’s right to give oral evidence in proceedings before the First-tier Tribunal 146. Mr Holland, for Javi’s parents, also argued the Tribunal failed to give adequate reasons for refusing to allow Javi to give oral evidence. A sophisticated legal argument in support, by reference to a number of international human rights instruments, was deployed. But the facts got in the way. 147. Mr Holland’s argument assumed a fact, namely that the Tribunal refused to allow Javi to give oral evidence. Since the premise was not, on the face of it fanciful, I requested Upper Tribunal staff to seek the Tribunal judge’s account of what happened there being no mention of the issue in the Tribunal’s statement of reasons. 148. The Tribunal judge’s emailed account (copied to the parties) was that the panel did discuss the question of Javi giving oral evidence with his parents. The judge thought the surroundings, being a formal courtroom at Manchester Crown Court building, were not a suitable forum for a child such as Javi to give oral evidence and this was likely to cause him distress due to his documented extreme anxiety. But the judge went on to say that, following the discussion, Javi’s parents withdrew their application for Javi to give oral evidence. This was hotly disputed by Javi’s parents and many witness statements in support were supplied (without invitation). 149. I accept the tribunal judge’s account. I without hesitation reject the point advanced by Mr Holland at the hearing that the tribunal judge’s account should be given less weight than the parents’ formal witness statements because it was not given as a witness statement. The judge was not a party to the hearing, and was certainly not going to be called to give evidence, so why in proceedings of this sort should a witness statement be required? 150. However, there is an important potential point of law here. On the judge’s account, the venue was an unsuitable one for this child to give oral evidence and that seems to have been why the parents abandoned the plan for him to give evidence. Under rule 24(b) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care) Rules 2008 the child is entitled to attend the hearing. And the Tribunal is given an express power to permit the child to give evidence and address the Tribunal. On ordinary administrative law principles, the Tribunal will need to have a good reason for refusing such a request. 151. I think Mr Holland is right to stress the importance of a child, who wants to appear before the Tribunal, being able to do so. The hearing will decide the child’s educational fate in the medium term at least and I also note Mr Holland’s argument that facilitating participation is expected by the UN Convention on the Rights of the Child. This hearing was listed for a venue that, in the tribunal judge’s opinion, precluded Javi from effectively participating. This concerns me and it is no answer at all to say, as did a salaried judge of the First-tier Tribunal when refusing permission to appeal, that “the Tribunal did not have to hear from [Javi] to be aware of his views”. On that reasoning, all children could be denied the opportunity to participate in a hearing and it overlooks the point that, of itself, participation may bring real benefits for the child even if the appeal fails. 152. My view is that it is potentially an error of law for the First-tier Tribunal to list cases in venues that preclude the participation of a child who wishes to participate although I recognise we do not live in a perfect world and countervailing considerations may apply in some cases. 153. I recommend that the First-tier Tribunal consider the wisdom of hearing SEN and school-related disability discrimination cases in venues whose characteristics, such as formality, are likely materially to inhibit the participation of a child who wishes to give evidence and/or address the Tribunal. Concluding remarks 154. I would like to thank all the representatives who attended the hearing of this appeal for their assistance, including the lay representatives. I would also like to thank the parties for the way in which they co-ordinated their submissions for the hearing and more generally for their co-operation. I should point out that none of the parties objected to the Upper Tribunal’s proposal to hear these appeals together given the common ground between them. 155. Finally, I apologise to all for the time it has taken to give this decision. I had wanted to give the decision before the start of the new school year but due to a family matter, about which I have written personally to the parents, I had to be away from work for a significant unplanned period of time in July and August when I had wanted to complete this decision. (Signed on the Original) E Mitchell Judge of the Upper Tribunal 17 th September 2015

Cited in 6 later judgments