Q:

09.26 Is the LA/FTT obliged to consider fall-back options?

Noddy 'no-nonsense' Guide

Noddy 'no-nonsense' Guide
Authors: David Wolfe QC, Leon Glenister
14 Feb 2022

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  • 14 Feb 2022
  • No

    Simple

    No. In LB Bromley v SENT [1999] ELR 260, Sedley LJ rejected an argument by a LA that FTT should have given the LA opportunities to put forward alternative schools after it had rejected the LA initial placement proposal. He held: “While proceedings before SENTs are not expected to mimic litigation, a SENT is in the ordinary way entitled to expect each side to bring its full case forward, at least to the extent of putting down the necessary markers. No such marker was put down by the LA.” 

    See also Stanley Burnton J in Hammersmith & Fulham v Pivcevic & SENDIST [2006] EWHC 1709 (Admin) #62 “if a considerable amount of money turns on a decision of the FTT it is incumbent on the local authority to prepare for and conduct its case with greater care.”

    A parent is entitled to express a first choice private school placement, and a fall back provision. As in KC v LB Hammersmith and Fulham [2015] UKUT 177 (AAC) #23, the FTT found the parental first choice school would involve unreasonable public expenditure as compared with the LA’s first choice maintained special school; however following this the FTT had to consider the parental mainstream fall back to which, by operation of section 316 EA1996, the parents would then have been entitled (over the LA’s maintained special school proposal).

    Noddy 'no-nonsense' Guide

    Noddy 'no-nonsense' Guide
    Authors: David Wolfe QC, Leon Glenister