Upper Tribunal Administrative Appeals Chamber

[2024] UKUT 201 (AAC)

Fecha: 11-Jul-2024

The Appellants’ appeal to the tribunal

The Appellants’ appeal to the tribunal

The appeal concerned the Appellants’ son, a boy of 7 (at the time of the decision), whom I will refer to as “S”. The decision records that S had a diagnosis of autism spectrum disorder (ASD) with associated sensory processing difficulties and development coordination disorder (DCD) and presented with symptoms of mild cerebral visual impairment (CVI). He was not at the time of the hearing attending school and was being taught from home. (I understand this still to be the case.)

The appeal to the tribunal, made under s51(2)(c), was against the contents of the EHC plan made for S by the Respondent and communicated to him by letter on 25 January 2023. The appeal concerned Sections B, F, and I of S’s EHC plan. The tribunal dismissed the Appellants’ appeal.

The issue in respect of section I was that the Respondent favoured School X, a maintained mainstream primary school with a special resourced provision for pupils with ASD, whereas the Appellants had requested School Y, a non-maintained special school (known to them, and to S, as S had been attending enrichment sessions there one afternoon a week). The Appellants argued that School X was inappropriate for S; the Respondent argued that both schools were suitable, but that School Y fell within s39(4)(b)(ii) (and so the parents’ preferred school did not have to be named in Section I). The tribunal accepted the Respondent’s argument. It concluded its reasoning as follows:

36.

Given the large cost differentiation between the two placements, the Tribunal conclude the legal test under s.39(4) of the CFA 2014 referenced above has been made out. [S]’s attendance at [School Y] would be incompatible with the efficient use of resources.

37.

Given this conclusion, the Tribunal needed to go on to consider the 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 expenditure’ under section 9 of the CFA 2014.

38.

Under this section the Tribunal considered both the Appellants’ views and the views expressed by [S] at the hearing, which were that he wishes to attend [School Y] and that he enjoys the enrichments sessions he attends there. Taking this into account, the Tribunal still found that the difference in cost between the two placements meant that [S]’s attendance at [School Y] was not compatible with the avoidance of unreasonable public expenditure in accordance with the legal test that must be applied.

Neither party was legally represented at the tribunal hearing (which was on 24 November 2023). The Appellants attended the hearing, as did S briefly at the beginning. The Appellants’ witnesses were the principal, the deputy principal, and the special educational lead from School Y. The Respondent’s witnesses were the assistant deputy head (and former SENCo) of School X and the operational leader from Liverpool Sensory Service.