Guidance laid down on approach of SEN Tribunal to dispute over parental preference for named school in statement

Guidance is given by the Upper Tribunal to Special Educational Needs Tribunals on dealing with cases where parents cannot agree on the maintained school to be specified in their child’s statement of SEN. Guidance is also given on what role concurrent family court proceedings might plan in the resolution of these disputes.

S-G v Denbighshire County Council, (B) (SEN) [2016] UKUT 0460 (AACC), 6 October 2016

Factual background

E was due to start secondary school. E’s parents have joint residence of E. They disagreed over the proposed named school in E’s statement of SEN for secondary transfer. Mr. S, E’s father, wanted E to attend maintained mainstream school ‘R’. The local authority proposed mainstream school ‘P’, which E’s mother supported. Mr. S stated that he could take E to and from R school but not P school. P is in a different town; Mr. S does not drive.

The local authority named P school in Part 4 of the statement with the caveat that parents pay for transport. Mr. S. disputed whether P school could deliver the provision required by E’s statement.

Mr. S appealed to the Special Educational Needs Tribunal for Wales. E’s mother did not participate in the hearing before the tribunal. The SENTW dismissed his appeal on the basis that

• there was assurance from the local authority that both school could deliver the provision of special educational needs required by E’s statement;
• E lived with her mother full-time and the SENTW was not responsible for enforcing a joint residence order so that Mr. S’s difficulties in transporting E to school is not relevant;
• E preferred P school although up to date views had not been obtained;
• P school was named because it was preferred by E’s mother with whom she lived. It is also the school P’s sister attends.

Mr. S appealed against the SENTW’s determination. E’s mother declined the Upper Tribunal’s invitation to become a party to the proceedings but was made a party by direction of the Upper Tribunal. By the time of the hearing before the Upper Tribunal, E had begun attending P school.

Judgment

The Upper Tribunal allowed Mr. S’s appeal and held as follows:

There is no single model of maintained school. Different schools will have different strengths and weaknesses. Even if two maintained schools are both capable of providing a suitable education for a child, it is open to a parent to argue that one school would provide a better education than the other. The statutory scheme does not prevent such an argument.

1. The statutory requirement in section 324(4) is to specify the school (or type of school) considered “appropriate”. It is clearly legitimate to take into account which school is better suited to a child’s needs in deciding which school would be appropriate to name.
2. The evidence before the SENTW did not show it is obvious that the educational provision is materially similar at both schools.
3. The SENTW thus misdirected itself in law because it thought the question whether one school would provide a better education than the other was not relevant. Flowing from that, the SENTW erred in law by failing adequately to deal with Mr S’s argument that R School should be named because it was better placed to meet E’s needs. Given the arguments put to the SENTW by Mr S, it was not sufficient to rely on an unidentified evidence and an unspecified “assurance” that the provision at the two schools was in material respects the same.

The Upper Tribunal acknowledged that the appeal raised difficult principled issues of how a Tribunal is to deal with a dispute in parental preference between two parents with legal parental responsibility. On The Upper Tribunal provided the following guidance:

Where there are opposing operative parental preferences for maintained schools, the lcal authority is not required to name both schools. A local authority or tribunal to name a type of school rather than a specific school. Naming a type of school rather than a specific school may provide a solution of sorts in difficult cases where parents have opposing preferences.

1. It may be open to a tribunal to specify a type of school and thereby avoid becoming unduly enmeshed in a fraught parental dispute as to which school a child should attend.
2. If parents still cannot agree, the family court may need to have the final say but at least it will be assisted by an expert tribunal’s identification of the characteristics required of a school in order for it to provide a suitable education for the child.

The Upper Tribunal dismissed criticisms advanced by the Local Authority which were directed at Mr. S’s personality and held that “Evidence or written assertions are only pertinent to this appeal if they say something relevant about the lawfulness of the SENTW’s decision.” The Upper Tribunal’s observations on the Local Authority’s approach to adducing evidence of Mr. S’s personality as a part of its defending the appeal is worth reading: [53]-[58].

Full judgment: http://www.bailii.org/uk/cases/UKUT/AAC/2016/460.html