CCLC’s success at the Upper Tribunal ensures a holistic approach to section 9 of the Education Act 1996 (parental preference on school placement for EHC Plans)

CCLC successfully defends taking a holistic approach to section 9 of the Education Act 1996, in an important decision on Education, Health and Care plans (EHC plans).

Qaisar Sheikh, Head of Education Law at CCLC, was instructed by the parent of a boy with complex needs in the case of London Borough of Croydon v K.A. [2022] UKUT 106 (AAC), which saw the LA attempt to narrow section 9 of the Education Act 1996 to educational benefits alone.

The case related to a 13-year-old boy (“J”) who has a diagnosis of severe bilateral spastic quadriplegia form of Cerebral Palsy. J is non-verbal, doubly incontinent, non-ambulant and a full-time wheelchair user, who requires hoisting for all transfers during the day. He has serious respiratory problems, profound multiple learning difficulties (PMLD), and is reliant on adults for all his personal care and mobility needs.

In May 2020, CCLC appealed to the First Tier Tribunal (Special Educational Needs and Disability) (FTT) on behalf of J’s mother against the content of his EHC plan. As part of the appeal, she sought a highly specialist residential school placement costing £268,393 a year due to J’s very high level of needs which could not be met in the home environment. The LA accepted that J required a residential school setting but proposed a placement costing £70,000 less per year which would have been significantly further away from J’s family home, community, and long-term healthcare providers.

Section 9 refers to the general principle that children will be educated in accordance with their parents’ wishes, with a duty on the LA to specify the parent’s preferred school in a child’s EHC plan if it is considered suitable for their needs, offers “efficient” education and avoids unreasonable public expenditure. The FTT upheld CCLC’s appeal and when considering section 9, found that the healthcare and social benefits to J substantially outweighed the costs differential of the placements.

The LA then appealed against the FTT decision to the Upper Tribunal, arguing that the FTT should have considered only the educational advantages to J and not any wider social or health advantages. Furthermore, they suggested that wording of section 9 itself, was framed in terms of parental wishes for their children’s education, and not any wider wishes around meeting their social or healthcare needs.

CCLC contested that when determining a placement for the purposes of the EHC plan, section 9 required a holistic approach, taking into account a diverse range of factors including healthcare, and social advantages. The Upper Tribunal Judge Wikeley rejected the LA’s case and affirmed that the educational, healthcare, and social advantages (“apples, pears and oranges”) of a school placement should be weighed against the educational, healthcare, and social costs (“apples, pears and oranges”) on the other side of the scales. The case, K v Hillingdon LBC (SEN) [2011] UKUT 71 (AAC), which had previously established that all such benefits should be considered was reaffirmed. The Upper Tribunal also confirmed that the weight to be attached to the respective benefits and costs under section 9 is also “a matter for the expert evaluation and judgment of the specialist First-tier Tribunal”.

Qaisar Sheikh, Head of Education Law at CCLC said:

I am extremely pleased for J and his mother. This decision is so important for parents appealing to the Tribunal because it confirms that, even when the cost difference between placements considered suitable for a child is substantial, in the right circumstances, parents can succeed in securing their desired placement by relying on benefits that are beyond educational. This decision dispels the widely held view, particularly amongst LAs, that when two placements are considered suitable for a child’s needs, the parental choice can only be named in an EHC plan if it is only marginally or moderately more costly. In this case it was almost £70,000 more costly to the LA and not considered an unreasonable use of public funds due to the additional health and social care benefits that it will bring to J. One can only hope that this decision serves to encourage LAs to take a more holistic approach in weighing up education, health and social advantages to a child or young person and not put primary consideration to costs alone.

CCLC instructed barrister Alice De Coverley of 3PB Chambers to advocate for the parent at both the FTT and UT hearings. She commented:

This LA was found to be mistaken in seeking to unduly narrow the reading of section 9 to educational benefits only. The decision confirms what we knew to be the correct, holistic approach – that health and social care (and possibly even wider) benefits are not irrelevant to the s9 scales. This case confirms the approach taken in K v Hillingdon, but also widens the potential scope for parents to raise any benefits that they consider outweigh the additional cost of the placement. After all, a placement simply being more expensive does not mean that it is automatically incompatible with the duty to avoid unreasonable public expenditure to agree to place a child there. This is a very valuable decision for all those dealing with cases where section 9 comes into play.

See 3PB’s article about this case here.

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