SPOTLIGHT

A zero sum game?

The number of SEND tribunal cases is rising and the proportion of appeals ‘lost’ by local authorities is at a record high. Lottie Winson talks to education lawyers to understand the reasons why, and sets out the results of Local Government Lawyer’s exclusive survey.

Education tribunals and costs

Does your risk management extend to costs which can be ordered by Education Tribunals? John Roberts considers the issues for education authorities.

The cost to an education authority of a pupil being educated at an independent school can by significant; somewhere in the region of £25,000 per year – without considering ‘set up’ costs for staff training and other measures. Education Tribunals have the power to order an education authority to fund a child’s placement at an independent school. If placement were ordered from year 3 (junior school), the cost for one pupil could be £250,000.

S.9 of the Education Act 1996 (“the Act”) sets out the general principle that pupils are to be educated in accordance with the wishes of their parents. On the face of it, that obliges education authorities to fund independent schooling where requested by the parents. Some independent schools, in the knowledge of the content of the Act, target the parents of children with a Special Educational Need, such as Autism Spectrum Disorder and encourage them to request that the education authority fund a private placement.

The Act qualifies this principle in that parental wishes will only be followed where ‘compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure’. 

The Tribunal therefore has to consider whether the independent and state schools are both appropriate and if so, consider whether placement at the independent school involves unreasonable public expenditure, balancing cost with educational advantage. The burden is on the education authority to make out the argument that the cost is unreasonable and provide supporting evidence.

A sensible approach is to argue, supported by evidence, that unless the independent school offers an education advantage substantially exceeding the state provision, additional public expenditure is unreasonable.

There are multiple ways the education authority can obtain and marshal the necessary evidence and legal advice is essential. A wise starting point is to instruct the relevant in-house experts at the education authority, such as an educational psychologist, to visit both the independent and state provision so a comparison can be prepared. The experts will be able to advise the education authority as to whether the independent school has sufficient experience and expertise to cater for children with Special Educational Needs, and how this compares to the state provision.

It would be easy to overlook the potential cost of an adverse finding to an authority and the timely obtaining of robust evidence is essential, given the strict deadlines for submission to the Tribunal.

John Roberts is a partner at BLM. He can be contacted on 029 2044 7643 or This email address is being protected from spambots. You need JavaScript enabled to view it..