OO & Anor v London Borough of Bexley
[2023] UKUT 223 (AAC)
London Borough of Islington v A Parent
20 August 2024
[2024] UKUT 252 (AAC)
Upper Tribunal
A parent wanted their child to go to a specific school, but the local council preferred another. A judge ruled the first hearing was unfair because it didn't properly consider all the evidence, especially the costs. The case will be reheard.
Key Facts
- •Appeal against First-tier Tribunal decision regarding placement of child C in special education.
- •Parental preference was for The Garden School (Hackney), while the local authority (Islington) proposed The Bridge School (Islington).
- •First-tier Tribunal favored parental preference, citing unreliable cost evidence from the local authority.
- •The Garden School was oversubscribed; The Bridge School had a vacancy.
- •The Upper Tribunal found the First-tier Tribunal erred in law by placing the burden of proof on the local authority and by not utilizing its inquisitorial jurisdiction to obtain necessary cost evidence.
Legal Principles
Parental preference for a school should be followed unless the school is unsuitable or attendance is incompatible with efficient education of others or efficient use of resources (Section 39(4), CFA 2014).
Children and Families Act 2014
Tribunals have an inquisitorial jurisdiction; they must ensure they have necessary evidence to determine the case fairly (Rule 2, Tribunal Procedure (First-tier Tribunal) Rules 2008).
Tribunal Procedure (First-tier Tribunal) Rules 2008
On appeal, the Tribunal's task is to 'stand in the local authority's shoes' and apply section 39(4) to the facts, exercising inquisitorial jurisdiction to ensure sufficient evidence.
Case law interpretation of Section 51, CFA 2014 appeals
The relevant cost is the marginal (additional) cost to the local authority's education budget when comparing placements (Oxfordshire v GB).
Oxfordshire v GB [2001] EWCA Civ 1358
Local authorities have a duty to assist the Tribunal by providing all relevant information, not just that which supports their case (R (JF) v London Borough of Croydon).
R (JF) v London Borough of Croydon [2006] EWHC 2368 (Admin)
Outcomes
The Upper Tribunal allowed the appeal.
The First-tier Tribunal erred in law by placing the burden of proof on the local authority and failing to use its inquisitorial jurisdiction to secure necessary cost evidence. Its findings on costs were also perverse and unsupported by the evidence.
The case was remitted to a fresh First-tier Tribunal panel for redetermination.
The First-tier Tribunal failed to make findings on the suitability of The Bridge School, a necessary step before making a decision; the matter requires further evidence.