Q:
09.24 Can an LA/FTT approach EA1996 s9 on the basis that any extra cost for a parental placement is “unreasonable”?
Noddy 'no-nonsense' Guide
Authors: David Wolfe QC, Leon Glenister
14 Feb 2022
A: SenseCheck
- 0 Yes
- 1 No
- 0 Other
- 14 Feb 2022
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No
Complex
No. There are no hard and fast rules about how much extra expenditure counts as “unreasonable” so as to downgrade the parental preference for EA1996 s9 purposes.
As to what is “unreasonable”, note Wardle-Heron v Newham [2002] EWHC 2806 in which the judge remitted back to the FTT for it to consider whether the extra cost was “unreasonable” a case in which the LA package would cost £5,641 and the parental package £12,286, thus recognising that the difference (nearly £7,000) was not necessarily “unreasonable”. Similarly £4,000 was not necessarily unreasonable given the benefits which arose in Ealing v SENDIST & K [2008] EWHC 193.
See also MM & DM v Harrow [2010] UKUT 395 (AAC) #35 where the UT declined to decide whether £17,000 (an extra 60%) would inevitably be unreasonable public expenditure, and KE v Lancashire CC (SEN) [2017] UKUT 468 (AAC) #22-29 where even a £71,000 difference was still analysed on the facts and not dismissed as inevitably unreasonable.
[new November 2022] The UT found an extra £70,000 in the context of two placements costing over £200,000 might be expected to require “quite exceptional circumstances” to justify, but the FTT had not erred in finding advantages in health provision justified the extra expenditure: LB Croydon v K-A [2022] UKUT 106 (AAC) #54-55.
Conversely in JI and SP v Hertfordshire CC (SEN) [2020] UKUT 200 (AAC) #48, the UT considered a cost difference of £2,661 compared to £19,000 would have constituted unreasonable public expenditure.
Other appeals have, however, suggested that under the EA1996 s9 ‘unreasonable public expenditure’ test even fairly modest additional sums required to place a child in the parentally preferred school may prevent the FTT from naming it unless there is a clear explanation as to the additional benefit to be derived from the parental placement and the FTT explains why it is not unreasonable for this to be funded by the LA. As always, the detailed reasoning is key when deciding appeals on the basis of respective costs.
Noddy 'no-nonsense' Guide
Authors: David Wolfe QC, Leon Glenister
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