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Judge remits SEN case to fresh hearing after tribunal overlooked naming school subject to condition that parents arrange transport at own expense

The Welsh Tribunal erred by not properly considering an offer from parents to transport their son, who has special educational needs, to their chosen school, the Upper Tribunal (Administrative Appeals Chamber) has found.

In S-MR v Carmarthenshire County Council (Special educational needs - special educational provision - naming school) [2021] UKUT 294 (AAC) Judge Edward Jacobs said the decision must be set aside under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and remitted to the Education Tribunal for Wales for a hearing by a differently constituted panel.

This case concerned the special educational needs of a child named Oliver, who attended L College.

Carmarthenshire proposed he should attend another school, YBD, and the issue arose of transport costs being met from public funds.

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The tribunal found the difference in cost of Oliver attending L College was £8,752 and deemed that unreasonable and said Oliver should go to YBD.

His parents though proposed taking him to L College themselves to which they would anyway be transporting his siblings.

Carmarthenshire argued this did not remove the transport cost from public funds as the proposal to transport Oliver was voluntary and could end at any time, leaving the authority with a statutory duty to pay for Oliver’s transport.

It also said that even if the tribunal ordered Oliver’s parents to pay for his transport, the authority’s statutory duty would remain.

Judge Jacobs said: “The tribunal went wrong in law by overlooking the possibility of naming:

  • more than one school in Part 4 [of the statement of needs]; and
  • one school as the primary placement subject to a condition that the parents arrange transport at their own expense.”

The judge said the tribunal’s written reasons “did not expressly deal with those possibilities and do not read as if the tribunal had them in mind when making its decision”.

A dispute had also arisen about the conduct of the original online hearing by the tribunal covering evidence given by the special educational needs co-ordinator of YBD.

Counsel for the parents complained that the co-ordinator misled the tribunal because she directly told it she was alone when she was not.

There were pauses when she was asked questions and the sound of a third party talking could be heard.

Judge Jacobs found there was though an innocent explanation. He said the head teacher of YBD had provided a witness statement that the co-ordinator set herself up a large table in the head teacher’s office to spread out her papers and secure a good internet connection.

During this the head teacher entered and left the room, did not hear what was being said by other participants and did not take any part in the proceedings or give any help to the co-ordinator.

Windows were open and there were workmen on site and deliveries were taking place.

Judge Jacobs said: “So on investigation, this was all a matter of innocent mistakes and misunderstandings as a result of the conditions in which the [coordinator] was working.

“As to the suggestion that the [co-ordinator] or the head teacher should be barred from giving evidence if this case were to be reheard, that would not be an appropriate response even if the events had occurred as described.”

Mark Smulian

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