What happens when parents disagree with each other about school placement?

The appeal of S-G v Denbighshire County Council and another has, for the first time, considered how special educational needs tribunals should handle a case where parents do not agree with one another about school placement.

This judgement comes for the Upper Tribunal. It is an appeal against a decision made by the Special Educational Needs Tribunal for Wales (SENTW). Whilst the SENTW operates under slightly different procedural rules to the Special Educational Needs and Disability Tribunal (SENDIST), at time of writing it still applies the Education Act 1996.

The facts

This judgement is rather fact specific.

The young person (E) had a Statement of Special Educational Needs issued by Denbighshire County Council. Her parents had separated and E was subject to a joint-residence order, meaning that she spent more or less equal time with each of her parents.

The local authority faced difficulties when E was due to move to secondary school. E’s mother wanted her to go to a mainstream maintained school (School 1). E’s Dad wanted her to go to a different maintained mainstream school (School 2). Both parents had given thought to which school would be able to support E’s needs.

The local authority named School 1 (mother’s preference) in E’s Statement of Special Educational Needs. E’s father appealed against this decision to the SENTW. He sought for School 2 to be named.

The SENTW was provided with information from the local authority to the effect that both schools provided ‘more or less’ the same education. The SENTW accepted that there was practically no difference between the schools and upheld the local authority’s decision to name School 1. The SENTW also decided that E spent the majority of her time with her mother, so her preference prevailed.

The decision

The Upper Tribunal said that the SENTW was wrong in how it approached the appeal.

The starting point is that, subject to two exemptions, Schedule 27 Education Act 1996 requires a local authority to name the particular school parents ask for, if that school is a maintained mainstream placement.

The exemptions to Schedule 27 did not apply in this case. As such, there was a difficulty; which school was the local authority / Tribunal required to name?

The Upper Tribunal considered this, and the powers of the family court.

In terms of the family court, the Upper Tribunal recognised that it may be preferable for a specialist tribunal to make a decision on appropriate school placement, or at least decide on the type of placement the child or young person needs.

The Upper Tribunal relied on two previous judgements (Richardson v Solihull, White v Ealing [1998] ELR 319 and R (Edison First Power Ltd) v Central Valuation Officer [2003] UKHL 20, 4 All ER 209)

The Upper Tribunal decided that in these situations, the Tribunal has the ability to name type-only. The Upper Tribunal found that Schedule 27 does not compel the Tribunal to resolve the dispute between two parents, unless it wishes to.

If the Tribunal decides to name type-only, it then would fall to the parents to decide on which school their child should go to. If they cannot, the family court would have to decide. The family court would have to take guidance from the Tribunals’ decision.

If the Tribunal does decide to name a particular school, it must consider which of the two placements would be best placed to cater for the young person’s special educational needs.

Warnings

This is a very fact-specific case.

This judgement would likely only apply to cases where both parents want a mainstream maintained school, and the local authority agree to such a placement.