Found a very useful report re funding SEN

[KezT]

Professionally done by a proper Accountancy firm comparing costs f LEA schools vs independent schools for SEN students with complex needs.

 

http://www.nasschools.org.uk/files/NASS%20Cost%20Comparison%20Report%20-%20Final.pdf

 

going to submit as evidence in our Tribunal:)

[bed32]

Interesting - and not surprising - but it won't help at the tribunal I'm afraid.

 

If a maintained place is available the tribunal have to take that as zero cost on the basis that it is being paid for anyway whether you are using it or not.

 

So even if the LA places costs them £100k per pupil, and the independent cost £50k, the independent will be deemed to be more expensive.

 

I think even the proposed changes to SEN provision don't go as far as letting you get direct payment for the basic cost of a school place.

[KezT]

ahh, but they have not offered any kind of maintained place other than to say wait and see if he gets better (or, I assume, is sectioned or withdrawn by me). Everyone in our case has agreed that there are no LA schools able to met is need. The LA have refused the place purely on funding grounds so this report might be helpful in my case I hope

[bed32]

Crazy isn't it.

 

With or without the report the LA can't use a funding argument alone. The funding side says purely that if there are two adequate options then the LA can choose the cheaper (even if the more expensive is better and lead to better outcomes for the child). The rules are such that it would have to be an exceptional case to show that independent is cheaper in the terms the tribunal have to use.

 

To win the independent vs maintained argument you have to demonstrate that the mainstream cannot meet his need. If everyone has agreed and you have that in writing then the tribunal can't put him there. In that case I would guess the LA aren't really go to try to win the argument. Either they are just stringing things out in order to save costs. or they may come up with an alternative nearer to the time.

 

Of course by the time of the tribunal you should be able to show that he is not getting better where he is - that will be important

Edited July 7, 2012 by bed32

[Aginoth]

Bed32,

 

We are 99% sure they are just stringing things out to save 6-9 months of fees

[Sally44]

No actually, that is not the case. There is a case law precedent [Coventry Vs Browne] I think.

 

In that case the LA argued that their maintained school cost was 'zero' because it had to be provided anyway. The Panels decision was that 'nothing is for free', and so whatever therapy costs are needed for the child, have to be applied to both the maintained school and the independent school because maintained schools don't provided SALT input as standard.

 

At our tribunal we submitted evidence that his Statement funding was around £11,500 for his current Statement at his maintained LA primary school. The SENCO had given me that information. At the Tribunal the LA argued the cost was zero. We queried how was that possible when their own employee, the school SENCO had told us it cost them £11,500 + Taxi fees.

 

The LA also said that to meet our son's needs, they only had to spend a further £2500pa. The Tribunal Panel replied "I really doubt that. I think that figure would just about cover her travelling fees!"

 

I also got independent quotes for each therapy provider, so 2 independent quotes from a SALT [one had written the Tribunal report, another was from a therapy company.] I did the same with OT. And I pointed out to the Panel that the quotes I had used had been the lower quotes, and that that therapy was at an even lower cost as part of the standard therapy provided at the independent school of our choice.

 

I also submitted alot of evidence about how therapy provision was continually being whittled away whilst he was in the maintained LA primary school as this therapy was an 'add on', and therefore the LA and NHS were always looking for 'savings'. And I had lots of evidence of that.

 

However, if it goes to costs, it is much harder to win an independent placement. The best therapy when you win in that situation is OT input, because maintained schools don't have it, LA's don't buy it in, and the NHS does not provide sensory integration therapy at all, and does not provide 1:1 input for dyspraxia in school.

 

So your main argument should always be that the LA does not have any suitable school that can meet the child's needs.

 

And you have an even better case if your child has refused school and has not attended for some time because, so I was informed, that the Panel has NEVER recommended a child was placed at a school they were refusing to attend. It is a logical decision really, but parents often don't know this. As we said at our Tribunal, irrespective of what the school and LA had said they would do, and what they did do, our son has voted with his own feet and refuses to attend; has not attended for about a year; and now has an additional diagnosis of an Anxiety Disorder. It is blatantly obvious that he will not agree to return to his former school, because if he had been willing to return, we would have achieved that by now.

 

Also, by law, the LA is supposed to go with the parental choice of school UNLESS it is to the detriment of the other pupils, or not a good use of their resources.

Edited July 7, 2012 by Sally44

[Sally44]

This is he case law itself. It is long, and I would suggest that you speak with Ipsea about what it actually 'means' if you cannot follow it.

 

 

 

 

 

Education Law Reports/2008/Coventry City Council v Special Educational Needs and Disability Tribunal and Browne - [2008] ELR 1

 

 

Coventry City Council v Special Educational Needs and Disability Tribunal and Browne

 

[2007] EWHC 2278 (Admin)

 

 

QUEEN'S BENCH DIVISION

 

UNDERHILL J

 

 

12 SEPTEMBER 2007

 

Special educational needs - Statement - Education Act 1996, s 9 - Parents wanting named independent special school to be included in statement - Local education authority (LEA) preferring named LEA‑maintained school - Tribunal concluding that parents' choice should prevail as it did not involve unreasonable public expenditure, for purposes of s 9 - Whether tribunal had calculated the additional cost of parents' preferred placement erroneously in law - Whether tribunal's decision erroneous for want of reasons or findings of fact

 

The appellants (the council) were the local education authority (LEA) that maintained a statement in respect of Georgia Browne (GB), aged 11, who suffered from dyslexia. The council appealed against a decision of the Special Educational Needs and Disability Tribunal (the tribunal) of 16 July 2007 in which the tribunal had found that GB's needs were more extensive than the council had provided for and had ordered that the statement should be revised to name Maple Hayes school, an independent special school preferred by GB's parents, rather than Potters Green school, which the council preferred and which was an LEA maintained school. The tribunal had in fact found that GB's needs could be met at either school, but concluded that the cost of the placement at Potters Green would exceed that at Maple Hayes and that a placement at the latter would not therefore amount to unreasonable public expenditure for the purposes of Education Act 1996, s 9. The council appealed to the High Court, contending that the tribunal had erred: first, in including the cost of additional teaching support at Potters Green, since the sum concerned was not an additional cost to the council; and, secondly, in making no findings of fact as to whether Potters Green school could in fact provide the additional teaching support required from its own resources and delegated budget, and/or failed to give any reasons regarding the same. For the council it was contended that as the share of the council's individual schools budget delegated to Potters Green was calculated on the basis that it would include all expenditure on special educational needs (other than exceptions that did not apply in GB's case), the attendance of GB at that school would not cost the council an amount beyond what was already committed to the school under that delegation arrangement. GB was the interested party to the appeal.

 

Held - dismissing the appeal -

 

(1) The court rejected the argument that the effect of the delegation arrangement would mean that there was no additional burden on the LEA's annual budget, which additional burden Sedley LJ in Oxfordshire County Council v GB and Others [2001] EWCA Civ 1358 referred to as the relevant question in s 9 cases. In referring to 'the LEA's annual budget', Sedley LJ plainly did not have in mind the distinction between payment by the LEA directly from its own pocket and payment by the school under the delegated arrangements. The precise route by which payment was made out of what was ultimately the LEA's education budget was plainly immaterial to the purpose underlying s 9. The term 'the LEA's annual budget' was no more than a paraphrase of the reference to public expenditure in s 9: Sedley LJ's point was that the section was concerned with actual additional money paid out, no matter by whom. That conclusion was right as a matter of principle but was reinforced by the terms of s 49(5) of the School Standards and Framework Act 1998. Counsel for GB's submission, that the provisions therein showed that notwithstanding the power given to the school to spend the money under the delegated arrangements, the expenditure remained ultimately that of the council, was well‑founded. While the tribunal had been in error in ignoring the council's submissions on that issue, that error did not justify the court allowing the appeal where the point with which the tribunal failed to deal was in fact in itself wrong in law (see paras [12]-[14]).

 

(2) The submissions before the court had not required it to form a view on whether 'public expenditure' to which an LEA should have regard under s 9 of the Education Act 1996 extended beyond expenditure falling within the education budget. The questions reviewed in O v London Borough of Lewisham [2007] EWHC 2130 (Admin) the previous day did not arise on the facts of the instant case, since the expenditure was plainly in a broad sense expenditure from the council's education budget (see para [15]).

 

(3) Assessment of the difference between the fees of the independent school and the actual additional cash expenditure that the maintained school would have to incur if the child in question attended it - the 'marginal cost' (a useful shorthand but a term which the court would be wary of using too glibly) - would depend upon the individual details of the provision required and the staffing arrangements at the school in question. To a greater or lesser extent it might be possible to meet the child's needs by the use of staff who were already employed and to whom no further payment would fall to be made by reason of their undertaking the provision in question, as was well illustrated by the facts of the Oxfordshire case itself. In the instant case the costs of additional teaching support for GB at Potters Green was found to be 'of the order of £13,000', but that was not explained; that was bad practice on the part of the tribunal and the council was entitled to some explanation of how the crucial figure, showing the relative impact on public expenditure of the two options, which was plainly the determinative issue in the appeal, was arrived at. However, the court did not believe that it would be right to allow the appeal if the essence of the tribunal's reasoning was reasonably apparent from the evidence that was before it. In the light of that evidence, but with some hesitation, and while deprecating the inadequacy of the tribunal's expressed reasons, the court would not be prepared to allow the appeal on the basis only of insufficiency of reasons showing how the tribunal arrived at its crucial conclusion that the Potters Green option involved no less public expenditure than Maple Hayes. On the basis of the material that had been seen by the court, there was evidence which justified the tribunal in concluding that the full £7,600 (as the council's calculation of the cost of provision) amounted to actual costs and in making the further estimate of £13,000 (involving the cost of more extensive support than the council had provided for) on that basis. Accordingly the second ground of appeal was not made out (see paras [16], [17], [18], [20] and [28]).

 

Statutory provisions considered

 

Children and Young Persons Act 1933:s 39

 

Education Act 1996:Part IV

 

Education Act 1996:s 9

 

School Standards and Framework Act 1998:ch 2

 

School Standards and Framework Act 1998:Part IV

 

School Standards and Framework Act 1998:s 49

 

School Standards and Framework Act 1998:s 50

 

Tribunals and Inquiries Act 1992:s 11

 

School Finance (England) Regulations 2006 (SI 2006/468):Sch 2

 

School Finance (England) Regulations 2006 (SI 2006/468):Sch 4

 

Children and Young Persons Act 1933, s 39

 

Tribunals and Inquiries Act 1992, s 11

 

Education Act 1996, s 9, Part IV

 

School Standards and Framework Act 1998, ss 49, 50, ch 2, Part IV

 

School Finance (England) Regulations 2006 (SI 2006/468), Schs 2, 4

 

Cases referred to in judgment

 

O v London Borough of Lewisham

[2007] EWHC 2130 (Admin), [2007] ELR 633, QBD

 

Oxfordshire County Council v GB and Others

[2001] EWCA Civ 1358, [2002] ELR 8, [2002] LGR 279, CA

 

Jonathan Auburn for the claimant

 

The respondents were not represented

 

David Wolfe for the interested party, Georgia Browne

 

 

 

UNDERHILL J:

 

Introduction

 

[1] This is an appeal against the decision of a Special Educational Needs and Disability Tribunal (SENDIST) pursuant to s 11 of the Tribunals and Inquiries Act 1992.

 

[2] The circumstances giving rise to the appeal can be summarised as follows. Georgia Browne, who is aged 11, and who has been joined as an interested party to the appeal, suffers from dyslexia and has since 2004 benefited from a statement of special educational needs. In December 2006 her local education authority (LEA), Coventry City Council, which is the appellant before me and to which I will refer as 'the council', issued a revised statement. Georgia's parents, who are the second‑named respondents to the appeal, appealed to the tribunal. There were issues both as to the extent of the necessary provision for Georgia and as to what school should be identified in part 4 of the statement. As to the latter point, the council contended for Georgia's existing school, Potters Green, an LEA maintained school, remaining the nominated school, but her parents wished her to attend Maple Hayes, an independent special school. The tribunal in its decision dated 16 July 2007 found that Georgia's needs were more extensive than the council had provided for, although it did not accept Mr and Mrs Browne's case in full. As regards the nominated school, it decided that the revised statement should be amended so as to identify Maple Hayes.

 

[3] The council appeals against that decision. It has been represented before me by Mr Jonathan Auburn of counsel. Georgia has been represented by Mr David Wolfe. Mr and Mrs Browne are not formally represented, although no doubt in practice their interests are represented by Mr Wolfe. The first respondent, the tribunal, does not appear. Mr Wolfe has, advisedly, sought no order under s 39 of the Children and Young Persons Act 1933.

 

The issues

 

[4] The tribunal found that Georgia's needs, as determined by it, could be suitably met at either school. It is common ground that in those circumstances it was obliged to be guided by s 9 of the Education Act 1996 (as amended) (the 1996 Act), which reads as follows:

 

'In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State and local education authorities shall have regard to the general 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.'

 

 

[5] Since Mr and Mrs Browne's wish was for Georgia to go to Maple Hayes, the question for the tribunal was thus simply whether the cost of doing so constituted 'unreasonable public expenditure'. The evidence before the tribunal was that the fees at Maple Hayes would amount to some £11,500 per

 

year. (There were also significant transport costs associated with the Maple Hayes option, but these were effectively taken out of the equation by Georgia's father undertaking to be responsible for transporting her himself. He is in fact a taxi driver). The tribunal held that that sum did not represent unreasonable public expenditure. Its findings on the point are shortly stated in its conclusion at E, which was as follows:

'In our estimation the cost of the additional teaching support which Georgia will require if she remains at Potters Green will be of the order of £13,000. Thus the cost to the LEA of her placement there would, at least in the short‑term, exceed the fees at Maple Hayes.'

 

 

In other words, therefore, there was no unreasonable public expenditure because the expenditure involved in the Potters Green option would be no less than that involved by sending Georgia to Maple Hayes.

 

[6] The council's grounds of appeal are, to say the least, succinct. They are as follows:

'1. The Tribunal erred in including the cost of additional teaching support at Potters Green school as this sum was not an additional cost to the LEA.

 

2. The Tribunal erred in making no finding of fact as to whether Potters Green school could in fact provide the additional teaching support ordered from within its own resources and delegated budget and/or failed to give any reasons regarding the same.'

 

 

Those grounds were not accompanied by any statement of facts, or anything in the nature of a pleading elaborating the points being made. The only full statement of the council's case appears in Mr Auburn's clear and helpful skeleton argument dated 21 August. This was responded to by Mr Wolfe's equally helpful skeleton argument dated 7 September 2007. (I do not refer to the absence of any pleadings, or other material supporting the grounds of appeal, in order to criticise either Mr Auburn or those instructing him. So far as I can see, the rules do not provide for any such pleadings, and in any event this appeal has had to come on at comparatively short notice because of the urgency of the case. It is, however, material to an issue to which I will have to turn in due course.)

 

[7] I will consider the two grounds of appeal in turn.

 

Ground 1

 

[8] The council took the point before the tribunal that it had chosen to discharge its obligations under Part IV of the 1996 Act, ie the part concerned with children with special educational needs, by making so‑called 'delegated arrangements' under Chapter 2 of Part IV of the School Standards and Framework Act 1998 (the 1998 Act), and in accordance with the School Finance (England) Regulations 2006 (SI 2006/468). Mr Auburn summarised the effect of this statutory regime at para 29 of his skeleton argument, as follows:

'An LEA has discretion whether to retain funding to meet SEN in the central budget, in whole or in part (2006 Regulations, Schedule 2, paras 4-12). If it does not choose to retain funds, that funding will form part of the Individual Schools Budget. The Individual Schools Budget is then apportioned to individual schools in accordance with a formula devised by the LEA in accordance with Part 3 and Schedule 4 of the 2006 Regulations. The incidence of SEN is a permissible factor to be included in the formula. The governors of those schools, or the head‑teacher if the governors have delegated their power, are then entitled to manage that school's budget share (s 49(7) SSFA). Individual schools are to meet the demands of pupils from the share of resources allocated to them. The LEA remains under a duty to provide for a child's SEN, but where the school has a delegated budget the school is usually expected to meet the cost of such SEN provision from that budget.'

 

 

Mr Wolfe in his skeleton argument acknowledged that that summary was in itself substantially correct, although he said that it failed to mention the effect of s 49(5) of the 1998 Act: as to this, see para [13] below.

 

[9] What the council did in accordance with those provisions (and with a scheme made pursuant to them), was to pay to Potters Green for the year 2007/08 a sum of £93,000‑odd, out of which the school would be expected to fund provision for all children with special educational needs (save in certain exceptional circumstances which would not apply in Georgia's case). Mr Auburn told me that that amount was not, under the governing scheme, refundable whether or not the full amount was spent. (As regards that last point, I was shown in the course of argument, although it did not appear to have been before the tribunal or in the bundle prepared for this appeal, an extract from the scheme. That does indeed appear to provide for any surpluses arising as a result of the school not spending its full delegated budget to be retained by the school: see para 4.1.1. However, that provision is subject to potentially significant qualifications in para 4.1.5. It has fortunately not been necessary for me to analyse in detail the precise effect of these arrangements.)

 

[10] What Mr Auburn says is that in those circumstances if Georgia were to attend Potters Green the council would have to pay no sum beyond what was already committed to be paid (if it had not yet been actually paid) to the school under the arrangements in question. He referred me to the decision of the Court of Appeal in Oxfordshire County Council v GB and Others [2001] EWCA Civ 1358, [2002] ELR 8 (the Oxfordshire case). The judgment of the court delivered by Sedley LJ contains a careful analysis of the effect of s 9 of the 1996 Act in cases where a LEA, or a tribunal, has to decide between two schools, both of which can meet the child's needs. At para [17] of the judgment Sedley LJ deals with the case where, as here, the choice is between an independent school and a maintained school. In such a case the cost of the independent school option is straightforward, namely the amount of the fees (subject perhaps also to any question of additional transport costs). As for the maintained school option, the court rejected the primary submission made to it on behalf of the child that it was necessary to work out the total cost of SEN provision at the school in question and carry out an apportionment in order to arrive at an amount notionally attributable to each child receiving such provision: s 9, the court held, was concerned with actual cash expenditure, not with accounting concepts. Thus Sedley LJ said:

'The question is what additional burden it [providing for the child's needs] will place on the LEA's annual budget.'

 

 

[11] Mr Auburn relies on that formulation and submits that the effect of the delegation arrangement which I have set out is that if Georgia were to attend Potters Green there would be no 'additional burden on the LEA's annual budget': the money that would fund the provision for her had already been disbursed (or, it may be, irrevocably committed) by the council.

 

[12] I reject that submission. In referring to 'the LEA's annual budget', Sedley LJ plainly did not have in mind the distinction on which Mr Auburn relies between payment by the LEA directly from its own pocket and payment by the school under delegated arrangements. That distinction had not featured in the argument before the Court of Appeal. The precise route by which payment is made out of what is ultimately the LEA's budget is plainly immaterial to the purpose underlying s 9. The term 'the LEA's annual budget' was no more than a paraphrase of the reference to public expenditure in s 9: Sedley LJ's point was that the section was concerned with actual additional money paid out, no matter by whom.

 

[13] That conclusion seems to me to be right as a matter of principle, but it is reinforced by the terms of s 49(5) of the 1998 Act. Section 49 is part of the group of sections under Chapter 4 of Part II which establish the machinery for the financing of maintained schools. Section 49(1) provides that every maintained school shall have a delegated budget. Subsection (5) reads as follows:

'Any amount made available by a local education authority to the governing body of a maintained school (whether under section 50 or otherwise)--

 

(a) shall remain the property of the authority until spent by the governing body or the head teacher; and

 

(

when spent by the governing body or the head teacher, shall be taken to be spent by them or him as the authority's agent.'

 

 

Mr Wolfe submits that those provisions show that notwithstanding the power given to the school to spend the money under the delegated arrangements, the expenditure remains ultimately that of the council. In my view that submission is well‑founded.

 

[14] Mr Auburn makes the fair point that the tribunal in its decision simply ignores the council's submissions on this issue, which it is perfectly clear were indeed advanced to it. I accept that it was wrong to do so. It is the job of any tribunal to address the principal submissions made to it by the parties and, to the extent that it rejects them, to explain, however briefly, why it has done so. However, that error on the part of the tribunal does not justify my allowing the appeal where the point with which it failed to deal was in fact itself, as I have held, wrong in law.

[15] I should add for completeness that the submissions before me have not required me to take a view on the contentious question of whether the 'public expenditure' to which an LEA should have regard under s 9 of the 1996 Act extends beyond expenditure falling within the education budget. By coincidence, Mr Andrew Nicol QC handed down a judgment only yesterday reviewing the various conflicting authorities on that point (see O v London Borough of Lewisham [2007] EWHC 2130 (Admin), [2007] ELR 633), but both Mr Wolfe and Mr Auburn accepted, plainly rightly, that the questions there reviewed did not arise on the facts of this case, since the expenditure was plainly in a broad sense, and without prejudice to Mr Auburn's particular point, expenditure from the council's education budget.

 

Ground 2

 

[16] Although the council's second ground of appeal is somewhat opaquely expressed, the essential point is that the tribunal failed to carry out any analysis of whether, and if so to what extent, Potters Green could have met Georgia's needs without having to incur additional expenditure. As I have already had occasion to mention in connection with ground 1, the Court of Appeal in the Oxfordshire case has held that the equation required by s 9 in a case of the present kind involves the setting of the fees of the independent school against the actual additional cash expenditure which the maintained school will have to incur if the child in question attends it. Mr Auburn referred to this as the 'marginal cost': that is a useful shorthand, although I am a little wary of using too glibly economists' technical terms, the full implications of which lawyers may not always understand.

 

[17] Assessment of the second element - that is to say the marginal cost - will depend upon the individual details of the provision required and the staffing arrangements at the school in question. To a greater or lesser extent it may be possible to meet the child's needs by the use of staff who are already employed and to whom no further payment will fall to be made by reason of their making the provision in question - typically, for example, where the child is part of a group under a single special teacher or helped by a single assistant. That point is well illustrated by the facts of the Oxfordshire case itself. The court there held that the tribunal had been wrong to take into account the attributed cost of 5 hours per week of specialist teaching by a teacher for the deaf, because the teacher in question 'was on the staff of the hearing‑impaired unit and would be paid the same regardless of whether or not [the child] joined the unit'; and of transporting the child to school, because 'the taxi was already being used to carry two children to the school, and to add [the child] to its passengers would cost the LEA no more' (see paras [11] and [19]). That was in contrast to two other items, being the so‑called 'AWPU' costs (a capitation fee paid to a maintained school by the LEA for each pupil placed there), and the cost of an additional learning support assistant: both of these were 'genuine on‑costs'.

 

[18] If we look at the very brief reasoning of the tribunal on the costs issue, there is indeed, as Mr Auburn submits, no explicit consideration of this kind of question. The finding which I have quoted that 'the cost of the additional teaching support which Georgia will require if she remains at Potters Green will be of the order of £13,000' is simply not explained. Again, this is bad practice on the part of the tribunal. The issue of the relative impact on public expenditure of the two options was plainly the determinative issue in the appeal, and the council was entitled to some explanation of how the crucial figure on which the tribunal relied was arrived at. However, I do not believe it would be right to allow this appeal if the essence of the tribunal's reasoning is in fact reasonably apparent from the evidence which was before it. As to this, I have been shown the page from the council's submissions which addresses this issue. Under the heading: 'Costings of Georgia's support at Potters Green', a table is set out in the following terms:

'Age weighted pupil unit (AWPU) Year 5 - £1965

 

Teaching Assistant £7.50 per hour x 16 hours per week x 38 weeks - £4560

 

Higher Level Teaching Assistant £9.50 per hour x 30 mins per week x 38 weeks - £180

 

DLT Teaching Assistant 1 hour per week at £8.50p x 28 sessions based on sessions from September 06 to include summer term 07 - £238

 

DLT Tutor (Pauline Cronin) £64 per session x 4 sessions - £256

 

Speech and Language Therapist £23 per hour every two weeks - £437

 

TOTAL - £7636'

 

 

There then follows a passage of text making the points which I have already considered as to the effect of the fact that the council had delegated SEN funding to individual schools. The section ends with the following sentence, in bold:

'It should be noted that the school costs for Georgia's support above will be met from the school's existing delegated budget and will not require additional expenditure by the Local Authority.'

 

 

[19] I should observe, although this point was not directly referred to in submissions before me, that the figures appearing in the table appear to be those for the previous year, and one would assume that some modest uplift would be likely to be necessary insofar as they were being applied to the year with which the tribunal was in fact principally concerned. Subject to that point, it will be observed that the figure of £7,636 is barely half of the £13,000 odd estimated by the tribunal. However, the figure is of course based on the council's case as to what provision was required. That was not the basis on which the tribunal proceeded. It found that if Georgia were to remain at Potters Green she would need much more extensive support than the council had allowed for. Conclusion B in the decision was that she would require:

'· 2 hours' support from a specialist teacher, with one hour of direct 1:1 teaching and one hour for differentiation, planning, liaison with other staff and reviewing;

 

· Support from the DLT's specialist TA in all numeracy and literacy lessons (14 hours per week) plus a further 8 hours of support from the same TA in literacy‑based subjects.'

 

(DLT is a reference to the local authority's dyslexia liaison team. TA is short for teaching assistant.) It seems to me that it can reasonably be inferred that the approximate doubling of the council's figure in order to produce the tribunal's estimate results from the tribunal using the council's rates but scaling up the totals to arrive at an approximate figure for the cost of the much more extensive provision that it held was required. While Mr Auburn understandably relied on the absence of any detailed reasons, he did not seek to submit that the figure of £13,000 was otherwise absurd or perverse. Even if it could be shown to be somewhat excessive, it would not take a great deal of further provision to bring the council's figure of £7,636 within striking distance, so to speak, of the Maple Hayes fees.

 

[20] With some hesitation, therefore, and while deprecating the inadequacy of the tribunal's expressed reasons, I would not be prepared to allow this appeal on the basis only of insufficiency of reasons showing how the tribunal arrived at its crucial conclusion that the Potters Green option involved no less public expenditure than the Maple Hayes option.

 

[21] However, the question remains whether the costs which apparently form the basis of the tribunal's figure, as I have found above, represent additional expenditure in the sense required by the Court of Appeal in the Oxfordshire decision - 'marginal cost', as Mr Auburn describes it.

 

[22] I am bound to say that on an untutored reading of the council's evidence to the tribunal, as set out in para [18] above, my clear first impression was that they do represent actual additional costs which the council, or the school under the delegation arrangements, would have to incur by reason of Georgia's attendance. I accept that the language and presentation are not explicit, but the way that the figures are itemised is at least suggestive of actual cash payments.

 

[23] Mr Auburn, however, insisted that that was not the case. He told me on instructions that each of the teaching assistants and DLT teaching assistants and tutors whose costs were included in the list were already on the staff, or were available to the school under annual fixed‑sum contracts with the DLT which were unaffected by the number of pupils actually requiring the services in question. He acknowledged that the AWPU item was a marginal cost, but he said that that was the only one.

 

[24] I have no particular reason to doubt what Mr Auburn tells me, although caution and general experience suggest that matters might turn out to be rather more complicated if submitted to closer scrutiny. But the fact remains that there is no statement to the effect for which he contends in the document itself. The question of whether the 'costings' set out represent actual additional expenditure is simply not adverted to. That impression is reinforced by the absence of any factual explanation, of the kind which would otherwise have been necessary, of exactly why these costings were already committed (for example about the fixed‑sum arrangements for the supply of teachers from the DLT). Mr Auburn sought to persuade me that the second part of the final sentence of the document, which I have set out at para [18] above - specifically the statement that the school costs 'will not require additional expenditure by the local authority' - is intended as a statement that none of the costs were marginal costs. However, I cannot read it in that way. On a natural reading, it appears simply to be drawing the conclusion from the point made in the first half of the sentence (and indeed in the rest of this section of the document), namely the point about the sums not coming off the LEA's own budget because they had already been committed under delegated arrangements.

 

[25] Of course, that document was not the totality of the material before the tribunal. Mr Auburn told me, again on instructions, that, whatever may or may not appear in the document, the point about marginal cost was clearly made to the tribunal in the course of oral submissions. In that connection he referred me to a page from the bundle which was before the tribunal (although it is not included in the appeal bundle before me) which showed the way in which the special support given to Georgia in the previous year had been supplied: this showed that most of that provision had been in the context of group work. Mr Auburn's instructions were that in the form of that document the point had been made to the tribunal by the council's solicitor that any further provision would also be likely to be provided in groups, with the result that there would be no marginal cost.

 

[26] Mr Wolfe submitted that, whether or not this was factually correct, this line of argument was simply not open to the council. If it was intended to argue that the tribunal had ignored or misunderstood a crucial part of the council's case, the essential foundation for such an argument was to establish authoritatively that the submissions in question had indeed been made to the tribunal. That could in principle be done by reference to the documentary evidence and any written submissions which were put before the tribunal, or, if reference to oral evidence or submissions was necessary, by a witness statement from the solicitor with the conduct of the case setting out what had been said at the hearing. But, as we have already seen, no argument about marginal cost appears from the written submissions; and, as regards witness evidence about what happened at the hearing, Mr Auburn had in fact at the start of the appeal before me objected to the inclusion of a witness statement which Georgia had sought to adduce (directed to a different point), on the basis that evidence of this character was inadmissible in principle. It is true that the council had, as a fall‑back, prepared its own witness statement from Miss Carter, the solicitor with conduct of the case on behalf of the council, giving an account of some of the submissions made to the tribunal; but that did not in fact address the points in question.

 

[27] Mr Wolfe also pointed out that Mr Auburn's skeleton argument - which, as I have already said, is the only detailed statement of the council's case, given the exiguousness of the grounds of appeal - did not seek to make any of the points which he has now sought to develop before me orally. That is indeed so. I need not embark here on an elaborate analysis of the skeleton argument; but Mr Wolfe is quite right to say that the focus is virtually entirely on the first ground of appeal. Ground 2 features simply in a single paragraph restating the terms of the grounds of appeal as pleaded. Although at various points in the skeleton (see, for example, paras [8], [11] and [30]) Mr Auburn uses language to the effect that the provision for Georgia did not give rise to any additional expenditure or that, for example, 'the marginal cost to the LEA of this additional teaching support is nil', those submissions are made clearly as part of ground 1 of the appeal, which I have already rejected. The points now made orally, as discussed at paras [21]-[25] above, do not feature at all.

 

[28] I find those submissions on the part of Mr Wolfe persuasive. It may in fact be that the council in its oral submissions to the tribunal did clearly make the 'no marginal cost' point and that the tribunal was in consequence in error in not accepting, or at least reaching the necessary factual conclusions on, that point. But I have simply not been given the material on which I could properly reach any such conclusion. Mr Auburn's instructions, communicated for the first time in the course of oral argument before me, are a quite inadequate basis for me to find that the tribunal erred in that way. On the face of the material which I have seen, there was evidence which justified the tribunal in concluding that the full £7,600 were actual costs and in making the further estimate of £13,000 on that basis.

 

[29] In those circumstances I must hold that ground 2 of the appeal is not made out. Both grounds, therefore, are rejected. I dismiss this appeal.

 

Costs to the interested party, to be assessed on the standard basis.

 

Time for lodging appeal abridged to 14 days from date of court's decision.

 

Solicitors: Local authority solicitor

 

Bailey Wright & Co for the interested party

 

NEVILLE HARRIS

 

Barrister

[bed32]

Interesting case - thanks.

 

That is subtly different for the situation I was envisaging of provision within a maintained "special" school where the SEN provision is part of what the school provides rather than bought in on a per-pupil basis.

 

Just shows what a minefield (nonsense) this all is.

[Sally44]

That is why it is VERY important to have in writing from the LA school and various LA and NHS departments ie. specialist teaching, SALT, OT etc exactly what qualifications they have and what they provide.

 

Because even in a maintained special school there maybe no teaching staff with an additional qualification for teaching children with autism, because it is not a legal requirement on the LA for any of the staff to have such a qualification. The same applies for SpLD such as dyslexia, no-one, not even within the LA specialist teaching department may have a specific dyslexia qualification and they definately won't have anyone qualified up to level 7 to both teach and assess progress.

 

IF your appeal case proves that your child does need teaching by a teacher who does have that qualification, [for teaching children with autism, or with Dyslexia] or a SALT with specific training, or an OT that has completed the required Sensory Integration Modules can deliver a pure sensory integration therapy programme, then the LA would have to buy that in, even in a maintained special school because they don't have those staff employed on site, and the ones that come in from the NHS into school may not have those qualifications. But if you don't have the evidence in writing, that they [the school/LA/NHS] cannot meet that need, the LA are not going to admit it.

Edited July 8, 2012 by Sally44