What is unreasonable public expenditure?

According to Section 9 of the Education Act 1996, Local Authorities must have regard to the general principle that pupils be educated in accordance with the wishes of their parents, insofar as this is compatible with the provision of efficient instruction, training and the avoidance of unreasonable public expenditure. How should public expenditure be understood? What factors should Local Authorities take into consideration, and should certain factors be given more emphasis? When does it become unreasonable?

Unreasonable expenditure does not necessarily mean a higher cost of placement. London Borough of Croydon v K-A(SEN), a case from earlier this year, has widened the scope as to what factors parents can consider when comparing placements. Subsequently, what Local Authorities should have regard to when considering the reasonability of public expenditure has also widened.

Recent case law has interpreted Section 9 as requiring Local Authorities to adopt a holistic approach when considering public expenditure. The impact of a parent’s choice of school should be weighed against the expenditure incurred by the public purse generally. This goes beyond the educational costs to the Local Authority which has responsibility for the child or young person. It is a “balancing exercise”. In carrying out this exercise, the Local Authority has a duty to have regard to parental preferences - not implement them.

As to what factors need to be balanced against each other, these will be those relevant to the context and often go beyond education. For example, learning difficulties are often intricately related to social and health care needs.

London Borough of Croydon v K-A(SEN) concerned a Local Authority’s appeal against a First-Tier Tribunal’s decision to name the parent’s preferred placement in Section I of the EHCP. On a cost differential, the placement cost £70,000 more annually. The child (J) was non-verbal and non-ambulant. In addition to multiple learning difficulties, he suffered from severe conditions that include Cerebral Palsy and respiratory problems. The Local Authority argued that it could meet J’s needs at a much lesser cost at a suitable placement. As such, the parents’ preferred placement would amount to unreasonable public expenditure. The parents argued that the additional benefits of their chosen placement to J should be taken into consideration and if they were, the benefits would outweigh total public expenditure in relation to education, health and social care costs.

The Local Authority’s appeal was based on the key argument that the Tribunal had erred in its decision that the healthcare and social benefits to the child could outweigh the substantial public expenditure differential between the two placements. Section 9 was framed in terms of the parental wishes for their child’s education; not any other needs. As such, a too wide of a consideration was given to a range of factors.

The Upper-Tier Tribunal, however, rejected this narrow interpretation. The appeal was dismissed. It confirmed the First-Tier Tribunal’s approach: the correct balancing exercise will weigh the educational, healthcare and social advantages of a placement against the educational, healthcare and social costs. In contrast to this, the Local Authority had weighed educational advantages against educational, healthcare and social costs.

So unreasonable expenditure does not necessarily mean a higher cost of placement. In some cases, children or young persons will have needs which are not solely educational in nature but do nonetheless have an impact on their education. However, this does not mean that considerations such as appropriateness and costs are not important factors. Further, the duty remains to provide what is reasonably required to meet the child or young person’s needs. Local Authorities are not under a duty to provide the best possible education.