New term, new approach

A recent Upper Tribunal ruling has set out a new approach to social care costs in SEN appeals. Paul Greatorex explains its likely impact.

We’re back to school with a bang with the decision of the Upper Tribunal in WH v Warrington Borough Council [2013] UKUT 0391 (AAC) where Judge Williams declined to follow O v Lewisham  [2007] EWHC 2130 (Admin) and instead held that the only relevant “public expenditure” for the purposes of section 9 of the Education Act 1996 is that which comes out of the local authority’s education budget.

WH was typical of the situation where this issue usually arises: the local authority argument was that parental preference could not prevail because the fees of the residential school sought by the parents exceeded (by a very considerable margin) those of the day school it had named and so amounted to unreasonable public expenditure.

The parents, relying on O v Lewisham, argued for what Judge Williams in WH referred to as the “wide” view of what was meant by “public expenditure” in section 9, i.e. that it was not limited to the costs which would come out of the education budget.

On the facts of WH it was contended that the total cost to the public purse of the day school, including in particular social care costs, would actually be greater than the cost of the residential school.

O v Lewisham is a decision which was often accepted by the FTT as clearly representing the law even though it conflicted with a number of earlier authorities (indeed the FTT often refused even to acknowledge the conflict existed).

This decision of the Upper Tribunal is effectively at the same level of authority as O v Lewisham meaning the scope for debate remains, although the existence of that debate can no longer be denied. In the meantime, by virtue of being recent, fully reasoned and containing a detailed analysis of all relevant authorities, it seems more likely that WH will be followed.

That reasoning and analysis is too detailed to permit a helpful summary here, but it is worth noting two particular considerations relied upon by the judge in concluding that the “narrow” view was correct: (1) the difficulties in calculating every element of “public expenditure” involved in educating a child if there is no limit to the meaning of term (see paras 75-76), (2) the heavy burden imposed by the “wide” view on the education budget and the uncertainty (if not impossibility) of it recouping the extra costs from other budgets which have saved money (paras 77-78).

Of course, a local authority which can be satisfied that the parental preference will not result in additional expenditure overall and that the cost will be shared appropriately between the relevant budgets, remains free to accede to that preference rather than opposing an appeal in the FTT. But otherwise, this decision puts the balance of the argument back in its favour.

Paul Greatorex is a barrister at 11KBW. He can be contacted on 020 7632 8500 or by This email address is being protected from spambots. You need JavaScript enabled to view it.. This article first appeared in the set’s Education Law Blog.