[2024] UKUT 201 (AAC)

first, it decided, and explained, that School X and School Y were both “able to meet S’s needs” (this was said at [25], [29] and [31]) and so were both “suitable” (as was said at [34]);

it then considered “cost differentials”, and concluded, at [36], that S’s attendance at School Y would be “incompatible with the efficient use of resources” (tracking closely the wording of s39(4)(b)(ii));

it then said that, given that conclusion, it needed to consider the principle in s9 Education Act 1996 (“EA”) ([37] refers to “CFA 2014”, but this is clearly a slip of the pen, as s9 EA is cited verbatim in [37] (as indeed it was earlier in the decision, at [14]));

it then summarised the Appellants’ views, and the views expressed by S at the hearing, as being that S wished to attend School Y and enjoyed the enrichment sessions he attended there;

finally it concluded, taking those views into account, that the difference in cost between School X and School Y meant that S’s attendance at School Y was not compatible with the avoidance of unreasonable public expenditure (being, it said, the legal test that must be applied).

first, that s39(4) applied, by virtue of s39(4)(b)(ii) applying; (and so School Y, the parents’ preference, did not have to be named in Section I);

second, that School X would be appropriate for S, such that it should be named in Section I (s39(5)); and

third, the naming of School X in Section I was not prevented by the operation of s9 EA.

first, s19 extends to taking into account the “feelings” of the child (as well as their “views” and “wishes). I note that, whereas 7-year-olds may not, in circumstances of relative family harmony, have “views” and “wishes” very different from those of their parents (due to their relative immaturity), “feelings” are something typical 7-year-olds do have, very much in their own right; the statutory language, by expressly referring to “feelings”, requires that they be identified and considered;

second, s9 EA requires that regard be had to a general principle that is directive in nature (the parents’ wishes “are to be” followed) subject to a proviso (“so far as compatible with …”); s19, in requiring that regard be had to (amongst other things) the child’s views, wishes and feelings, is looser (i.e. less prescriptive) but broader (not just about following one party’s wishes, subject to a proviso).

the Respondent’s response to the appeal to the tribunal, which was required, by the tribunal’s procedure rules (rule 21(2)(e)), to include the S’s views about the issues raised by the proceedings, or the reasons why the Respondent had not ascertained those views, said this: “[S] reports that he likes [School Y]. His views are being gathered by his parents and will be made available to the tribunal.”; the response was made on 23 May 2023; it was not until 28 June 2023 that the Respondent notified that tribunal that it wished to name School X;

in the event, the tribunal bundle, it appears, included nothing specifically as to S’s feelings about School X: there is a note on page 213 from his parents’ (the Appellants) visit to School X on 6 July 2023, but this records the parents’ (critical) views of the school, rather than S’s feelings about it. There is also a note of S’s views on page 210 of the bundle, including his “hatred” of the mainstream infant school he last attended, but it does not give his views on School X (possibly because it predates 28 June 2023 (when School X first entered the fray) – one cannot be sure, as the document is undated);

S attended the tribunal hearing briefly at the beginning;

the letter from the registrar (clinic date 7 February 2024), whose contents are summarised at paragraph 8 above.

the letter seems to me highly relevant as to S’s feelings about going to School X. It also comes from an impartial and authoritative source, on the face of it. It is evidence of strength of feeling of a high degree: it speaks of “severe trauma” as regards S’s last mainstream placement; it reports S’s saying that he would harm himself if forced to go to School X;

the letter thus seems to satisfy the second and third of the classic conditions for admitting “new” evidence at the appellate level (Ladd v Marshall, cited in the extract from the permission decision at paragraph 9 above);

as regards the first of those conditions – could this evidence have been obtained with reasonable diligence for use at the tribunal? – the answer is clearly “no” in the sense that the letter did not come to be written until the developmental paediatrics clinic S and his parents attended on 7 February 2024. The question is whether equivalent evidence, showing the strength of S’s feelings, could, with reasonable diligence, have been obtained prior to the tribunal hearing. The answer is, again, “no”: because the distinctive qualities of the evidence are (i) that it comes from an objective, medical specialist; and (ii) that it observes, and analyses, S’s actual reaction to being told that he would be going to School X; any evidence adduced prior to the hearing would not, even with reasonable diligence, have been able to combine those two qualities;

I note that the Respondent did not, in its response, oppose admission of the registrar’s letter as evidence; in fact, it adduced a further piece of post-hearing evidence, the CAMHS letter of 3 May 2024;

in my view, the Ladd v Marshall conditions amount to an assessment of whether admitting a “new” piece of evidence, on an appeal against a first-instance decision, is fair and just in all the circumstances; I conclude that those conditions are satisfied and that it is fair and just, in the circumstances of this case, that I have regard to the registrar’s letter (the Appellants did not oppose introduction of the CAMHS letter, so I have had regard to that, as well).