London Borough of Islington v A Parent : [2024] UKUT 252 (AAC)
Upper Tribunal Administrative Appeals Chamber decision by Judge Stout on 20 August 2024
Read the full decision in.
Judicial Summary
The effect of section 39(4) of the Children and Families Act 2014 (CFA 2014) is that parental preference for a school (approved under section 41 of the CFA 2014) should be complied with unless the school is unsuitable or the child’s attendance at the school would be incompatible with the efficient education of others or the efficient use of the local authority’s resources. This case was concerned with the latter exception under section 39(4)(b)(ii) for incompatibility with the local authority’s resources. The local authority had proposed that C should attend a special academy school in its area which had a vacant place; parental preference was for a community special school in a neighbouring local authority which said it was oversubscribed. The local authority respondent to the appeal provided evidence as to the cost of its preferred placement and brought the Headteacher of that school to the hearing as a witness. The local authority provided email and letter evidence from the parent’s preferred school and the neighbouring authority as to the costs of placement at that school, but the neighbouring authority and parent preferred school had refused to provide a witness for the hearing. The First-tier Tribunal directed itself that the burden of proof was on the local authority to prove the true costs of the two placements. It found the local authority’s evidence “unreliable” and accordingly rejected it and ordered that the school of parental preference should be named in Section I.
Held:- The Tribunal had erred in law in placing a burden of proof on the local authority. The Tribunal’s task on appeal is to ‘stand in the local authority’s shoes’ and apply section 39(4) properly to the facts of the case before it, exercising its inquisitorial jurisdiction as appropriate to ensure it has the necessary evidence on which to fairly determine the appeal. The Tribunal’s rejection of the local authority’s evidence was perverse. It had also proceeded unfairly because it had failed to raise its concerns with the parties at the hearing. In any event, if the Tribunal had concerns about the reliability of the local authority’s evidence or required further detail, it needed to consider exercising its case management powers to require the parties and/or the third party local authority and school to provide further documentary evidence or to order a witness from the third party local authority or school to attend the hearing. Only the Tribunal in this case had the power to direct the third party local authority and school to provide evidence; the local authority respondent did not have that power. On the facts of this case, it was perverse for the Tribunal not to delay resolution of the case or adjourn the hearing for that further evidence as the prejudice to the parent and child of delay would have been minimal whereas the potential prejudice to the local authority was that it was required to fund C’s placement at a school at very significant additional cost to the public purse.
The case was remitted for re-determination by a fresh Tribunal. The Upper Tribunal was unable to remake the appeal because, despite having heard oral evidence about the suitability of the local authority’s school, the First-tier Tribunal had declined to make any findings about the suitability of that school or what additional resources might be required to make it suitable. These matters were still in issue between the parties and required witness evidence.