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Respite and education funding: never the twain shall meet!

But not anymore following the recent decision of O v London Borough of Lewisham [2007].

 

S.9 of The Education Act 1996 provides that children are to be educated in accordance with the wishes of their parents, provided that such education is compatible with the provision of efficient instruction and training and avoids unreasonable public expenditure.

 

The Courts have previously considered the quantification of 'public expenditure' only by reference to the education budget of the local authority.

 

Where a child has special education needs, Schedule 27, Paragraph 3 permits a parent whose child has a statement to express a preference as to the maintained, grant-maintained or grant-maintained special school at which he wishes his child to be educated and for that school to be named in the Statement. This expression of preference is to be factored against the efficient use of resources. Where educating a child at the parent's preferred school is deemed to be incompatible with efficient use of resources, a Local Authority can act against the wishes of the parent.

 

Historically, challenges as to whether the cost of a school amounted to unreasonable public expenditure and an inefficient use of resources only arose where the dispute was between the cost of an independent sector school and one which was local authority maintained. Perhaps that is why the question of whether the definition of public expenditure extends to all public bodies not just the local authority has not previously been raised.

 

In the Lewisham case, the parents wished their child to attend a maintained residential school. Lewisham named a maintained special day school. The additional expenditure for the local authority was said to be £20,000 per annum for the residential school. However, if the child were placed in the special day school he would require additional respite care at a cost of just over £16,500 per annum. The Judge considered whether this cost fell to be considered in the quantification of public expenditure and found that public expenditure within the meaning of s.9 meant the impact on the public purse generally.

 

It has to be right that where a Local Authority can call on assistance from a number of public bodies, for example, Primary Care Trusts, social services etc, that assistance should be 'costed' so that the complete package required to educate a child at a particular school can be financially assessed. Otherwise a decision which on the face of it saves a Local Education Authority £20,000 could cost another pocket of the public purse £30,000.

 

But what does this mean for local authorities? Whilst parents and their legal advisers are hoping for greater rationality to be applied when the question of funding of placements for state pupils falls to be considered, one can envisage the risk of hearings becoming figure driven and becoming a competition about budgets. What of the local authority who faces the burden of establishing that the parents' wishes are an unreasonable use of public expenditure? Will there be better co-operation and disclosure of costings by other public bodies or, will the Local Authority face greater hurdles including increased pressure on their own budgets in the rationalisation process?

 

For further information or advice, please contact Fiona Butler.