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London borough defends Upper Tribunal challenge over school child with learning disabilities should attend

The London Borough of Hackney has won a tribunal case in a dispute with the parents of a child with learning difficulties over which school he should attend.

On appeal from the First Tier Tribunal (Special Educational Needs & Disability) Upper Tribunal Judge Mark West rejected the case brought by child A’s parents.

In BK (2) AK v. Hackney London Borough Council (Disability discrimination in schools) [2020] UKUT 329 (AAC) they argued that the FTT made fundamental errors of fact or understanding in relation to the evidence, failed to take relevant evidence into account or give reasons for disregarding it and failed to put points to the witnesses or their representative.

The parents also maintained there had been procedural unfairness in the conduct of the appeal and that the FTT misdirected itself or misunderstood the law as to what constitutes a significant difference in costs, and had not properly carried out the balancing exercise in s9 of the Education Act 1996.

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Hackney had proposed that A should attend Stoke Newington School, a mainstream secondary school.

But his parents wanted him to go to the Moat School, an independent school for pupils with specific learning difficulties, a course the council argued would be too costly.

The FTT concluded that either school would be suitable but that the Moat would involve unreasonable public expenditure so the parents’ preference could not prevail.

Judge West said the FTT “considered all relevant evidence in detail and has provided cogent and comprehensive reasons for the findings of fact which it made. I can see no arguable error of law in its determination.”

He said the parents disagreed with certain findings of fact “but it is not open to them to seek to appeal the findings of fact made by the tribunal nor to seek to re-litigate questions of fact determined by the tribunal”.

There was no error of law made out, the FTT’s conclusions could be reasonably explained.

Mark Smulian

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