Friday Law Report: Parental preference was not excluded

12 March 1999 Catchpole and another v Buckinghamshire County Council and another Court of Appeal (Lord Justice Stuart-Smith, Lord Justice Thorpe and Lord Justice Sedley) 9 March 1999

THE OBLIGATION on a local education authority to have regard to parental preference with regard to choice of school, imposed by section 9 of the Education Act 1996, was not excluded in the case of children with special educational needs by paragraph 3 of Schedule 27 to the Act.

The Court of Appeal upheld the decision of the High Court, dismissing the appellants' appeal against a decision of a Special Educational Needs Tribunal that their son should attend a mainstream school maintained by the local education authority rather than an independent school of their choice.

The appellants' son was seriously dyslexic and had special educational needs. The respondent local education authority, in its statement of special educational needs made pursuant to s 324 of the Education Act 1996, refused to specify the school which the appellants considered appropriate for him.

The appellants appealed to a Special Educational Needs Tribunal against that refusal, and the tribunal concluded that the child should attend a mainstream secondary school maintained by the respondent, rather than an independent boarding school favoured by the appellants.

The appellants appealed to the High Court on the ground that the tribunal had erred in law in holding that section 9 of the 1996 Act, which provided for the expression by a parent of a preference as to the school at which he wished his child to be educated, had no application in a special educational needs case.

The judge agreed that the tribunal had been in error, but upheld the respondent's submission that a correct appreciation of the law could have made no difference to the outcome of the appeal before the tribunal. He therefore dismissed the appeal. The appellants appealed.

Nicholas Bowen (Teacher Stern Selby) for the appellants; Peter Oldham (Buckinghamshire County Council) for the respondent.

Lord Justice Sedley said that the respondent contended that the Act contained a self- contained code which gave parents much firmer rights, and which made section 9 redundant, in special educational needs cases.

Paragraph 3(3) of Schedule 27 made it mandatory for the statement of special educational needs to name the school preferred by the parents unless it was unsuitable for the child or incompatible with the efficiency of the school or the efficient use of resources.

Although that was in far stronger terms than the provisions of section 9 of the Act, which established no more than an obligation to have regard for a general principle of parental preference, qualified likewise by considerations of efficiency and expense, paragraph 3(1) of Schedule 27 contained the limitation that the expressed preference for a child with special educational needs had to be for a school in the state sector, whether mainstream or special. That limitation did not, however, by necessary implication exclude the broader principle expressed in section 9.

There was nothing in the Act to suggest that the general principle that pupils were to be educated in accordance with the wishes of their parents was intended to be disregarded in relation to children with special educational needs. The global effect of the Act was that in special educational needs cases a duly expressed parental preference for a state sector school was binding in the absence of a disqualifying factor, while an expressed preference for an independent school was to be considered, together with the reasons for it, in the light of the principle enunciated in section 9.

Notwithstanding that, the judge had been right in the present case to hold that the error of the tribunal, occurring as it had in a decision which had fully addressed the educational merits of the both the appellants' and the respondent's choices, could not have affected the outcome of the appeal.