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• 05 Nov 2022

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  Complex

  Can't answer yes or no.:

  Possibly. For Statements under EA1996, the “efficient resources” in question were those of the LA responsible (not LAs generally): B v Harrow (No 1) [2000] ELR 109. This was such that the LA could take into account the cost of an out-of-area placement if that was requested; and the LA could take into account – in a special school funded on a place-led basis – the “wasted” cost of not placing the child at the school.  

  But note that expenditure by a maintained school is by law LA expenditure such that increased (or reduced) school expenditure (i.e. depending on the child attending) is still taken into account in the resource balance even if the amount delegated to the school would not change the amount delegated to the school by the LA: X City Council v SENDIST, AB, MB & GB [2007] EWHC 2278 #12-13.

  The Noddy Guide considers that it cannot be assumed that the same will apply for EHCPs under CFA2014. 

  In particular, the House of Lords’ reasoning in B v Harrow (No 1) [2000] ELR 109 was premised on particular funding arrangements in place at the time for mainstream schools and for special schools (something which has now changed) and the (flawed even then) notion that all children with Statements were educated in special schools. It is unclear whether consideration of “efficient use of resources” for CFA2014 section 39(4)(b)(ii) would focus only (as the House of Lords held to be the case in EA1996) on the resources of the particular LA. 

  In PD and AD v Stockton-on-Tees BC (SEN) [2019] UKUT 57 (AAC) #48 the UT suggested CFA 2014 s39(4) resources were limited to those of the LA itself: “section 39(4) requires the LA or the FTT standing in its shoes to look at the resources of the LA itself whereas section 9 requires the FTT to take a ‘holistic’ look and take a wide view of public expenditure rather than just the resources of the LA”. However, it is (arguably) not “binding” on the FTT or other UT judges (because it was not essential to the UT’s reasoning), the UT having stated that in the context of that appeal it was not necessary to provide a “detailed exposition of the well-known case law”. 

  The opposite conclusion was reached in PM v Worcestershire CC [2022] UKUT 53 (AAC) #44(d). There, the UT stated CFA2014 s39(4) “does not restrict resources only to those that would be expended by a local authority were a young person to attend a particular educational institution”, taking into account high needs funding from central government provided through the Education and Skills Funding Agency. However, like PD, it is (arguably) not “binding” on the FTT or other UT judges because the ground to which the statement relates was decided on the basis the point was not put before the FTT (#49). The UT did not consider any of the prior case law on the point; and, on the basis it considered resources other than that of the LA could be taken into account, does not consider what other resources could be taken into account (e.g. is it limited to those of central government, or other public bodies such as a CCG?).  

  In summary, this point remains undetermined and the UT has reached differing conclusions. 

  More: 

  Can the LA/FTT refuse to name a requested s38(3) placement simply because it costs a bit more?

  Can parents/young person request a particular placement? 

  Must the LA consult with a candidate placement before naming it in section I?

  

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

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