‘For all children with a statement it is our experience that any attempt to silo their educational needs from their social care needs or medical needs often prove impossible. For example, to attempt to isolate when learning is an educational need and when learning is a social need is a false exercise…It is therefore almost impossible for this group of children [with special educational needs] to separate, predict and assess the benefits that arise directly only in relation to formal educational needs as opposed to care needs. In many cases it is a false exercise to attempt to do so as, like with younger ordinarily developing children, they need to learn continually whilst awake. What is different however is that in order to make progress this has to happen in a more planned, structured and formalised way. To consider the wider benefits of a particular school placement is therefore essential when considering the special educational needs of a child.’ 21 This evidence is problematic if only because it is not clear how these views fit into the statutory framework within which LAs and tribunals operate. It appears to be aimed at changing the whole perspective from which a tribunal is to consider a placement from its statutory basis of suitability to meet a pupil’s special educational needs (subject to unreasonable expenditure), to one which takes the need for waking day curriculum as a KE v Lancashire County Council (SEN)[2017] UKUT 468 (AAC) HS/1340/2017 6 starting point. There is nothing to suggest that the balancing exercise in section 9 is involved. I doubt whether Judge Pearl would have intended to change the nature of the exercise under section 9 by the side wind of this evidence. If he did, I would be unable to agree with him. The calculation in this appeal 22 It is not necessary to come to a final conclusion on how broad the calculus under section 9 is in deciding this case. As I said at the outset, it is clear that the tribunal made an error of law in failing to have regard to section 9. 23 Section 12(2) and (4) of theTribunals, Courts and Enforcement Act 2007 (TCEA 2007) gives the Upper Tribunal wide powers when a error of law is found: 12 (1)… (2) The Upper Tribunal – (a) may (but need not) set aside the decision of the First-tier Tribunal, and (b) if it does, must either – (i) remit the case to the First-tier Tribunal with directions for its reconsideration, or (ii) remake the decision. (3)… (4) In acting under subsection (2)(b)(ii) the Upper Tribunal – (a) may make any decision which the First-tier Tribunal could make if the F-tT were re-making the decision and (b) may make such findings of fact as it considers appropriate. 24 I have come to the conclusion that, despite the error, it would be inappropriate to set the F-tT’s decision aside, and I decline to exercise my discretion to do so. 25 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 as that which this F-tT reached. 26 The application of section 9 is the last step in the process of determining the special educational needs, provision and placement for a pupil with special educational needs. If the tribunal has otherwise done its job properly, it will have established the primary facts from which a decision on reasonableness or unreasonableness can be made. I am satisfied that (apart from deciding whether the extra expenditure is unreasonable) the F-tT made the necessary findings of fact to provide the basis for maintaining the decision. It is only to make the finding of secondary fact that the extra expenditure is unreasonable and to explain why. 27 It is not necessary to have one or two specialist members sitting with me to carry out the weighing exercise given the huge difference in costs between the schools. I am setting out the essential findings and some of the evidence. It shows that the two schools were materially similar and both were suitable for J. The evidence and findings were well explored and explained: KE v Lancashire County Council (SEN)[2017] UKUT 468 (AAC) HS/1340/2017 7 (i) The parent’s view was that J required an ASD-specific setting. They were convinced that J was more able than the bulk of test scores showed, that he needed a smaller school (O School) than P School and that he would be traumatised at P School. (ii) The F-tT found J was autistic, had severely impaired vision, had social communication problems, restricted language, restricted interests consistent with autism, post-traumatic stress disorder symptoms and some continuing anxiety. He required SaLT (speech and language teaching) input and occupational therapy for his problems, a sensorycalm environment in a school where the ethos was designed to include pupils with autism and learning difficulties. It accepted that J was sensitive to, and did not like, noise, and became stressed and anxious at certain types of noise. (iii)J was not more able than suggested by some of the test results. This was explained at some length. (iv) J needed peer group with similar diagnostic profiles and cognitive level. P’s peer group met this need. P School had a number of high functioning ASD pupils. P would be placed at the outset in a small group of 7 (of whom 2 were ASD diagnosed and 3 had ASD traits). All were in moderate to severe range of learning difficulties, all of them were verbal. J would be in a group of children with mixed social skills, some higher than his. He could be moved up to study for GCSEs or be moved into the independent learning group when the time was right. (v) The F-tT accepted that J needed individual teaching (1:1) when he recommenced at school and needed incremental integration with peers. At P School, J would have 1:1 individual teaching until he was integrated, however long that might take. At O School, children were taught individually in separate rooms and came together as and where appropriate to complete their learning. The systems shared important similarities in terms of the individual attention an autistic child needed. (vi) J needed a highly differentiated curriculum devised by autism trained staff and delivered by teachers experienced or with expertise in autism. It accepted that he needed to have a key worker with ASD training or experience throughout the day. The EHC Plan gives many examples of the kind of input he required, which it is not necessary to repeat here. In short, however, he needed a high level of input throughout the week from staff experienced or expert in autism. Both could provide these. (vii) The F-tT did not accept that J needed an ASD specific setting. A school with the appropriate ethos, such as P, was appropriate. P School teachers had regular ASD training, though not all had the same tuition. Staff working with J required experience or expertise in autism, which was available at P School. An occupational therapist working with J did not need to have special sensory training. P School could deal with his KE v Lancashire County Council (SEN)[2017] UKUT 468 (AAC) HS/1340/2017 8 mental health problems. The F-tT made a specific finding on the evidence that J’s anxiety levels had reduced. Both schools could provide what was required. (viii) J needed a calm, low stimulus environment. The layout and facilities of P School met the requirements included in the EHC Plan, i.e., low stimulation, sensory-calm place. Pupil numbers were small, though not as small as O School. There was a sensory room that would be available for J. P School had appropriate OT and SaLT as did O School. The area in which J would be taught at O School was ‘always quiet’ as most of the pupils were anxious. (Section C, 254). (ix) The main differences between P School and O School are that O School is smaller overall and O School was a specialist autism school. The F-tT found this was not necessary. (x) The children at O School could also have additional complex learning difficulties, as at P School. (xi) At O School, 4 out of their 6 teachers had post graduate qualifications in autism (C, 253). The remainder did not. They were, however, given continuing training in autism. The teachers at P School did not have the same number of qualifications, but instead had considerable experience and expertise, which was what the F-tT found to be necessary in the EHC Plan. Indeed, what the F-tT found and included in the EHC Plan was that J needed to be ‘educated in an environment where the school ethos is designed to include pupils with autism and learning difficulties.’