England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(MR JUSTICE DYSON)

		Royal Courts of Justice The Strand London WC2
		12th February 1998

1. LORD JUSTICE BELDAM: There are three appeals before the court from decisions of the High Court on appeal from decisions given under sec. 326 of the Education Act 1996 (the 1996 Act) by the Special Educational Needs Tribunal. Mrs Richardson and Mrs White appeal from the decision of Mr Justice Dyson of 8th July 1997 dismissing their appeals from the decision of the Special Education Needs Tribunal. The Hereford and Worcester County Council appeal from the decision of Mr Justice Collins of 4th September 1997 dismissing its appeal from the Special Education Needs Tribunal. An appeal lies to the High Court from the decision of the Tribunal only on a question of law. The question common to all three appeals is whether, and in what circumstances, the Tribunal is obliged to order a local education authority to specify the name of the school as part of the special educational provision to be made for a child who has special educational needs in a statement of those needs pursuant to sec. 324(1) of the 1996 Act.
2. In Mrs White's appeal a further question of law arises as to how far the Tribunal, which includes two members with special educational experience and knowledge, should disclose to a party that it intends to make findings based upon that expertise.

Introduction.

3. Local educational authorities are enjoined by sec. 13 of the Act, so far as their powers enable them to do so, to:

"... contribute towards the spiritual, moral, mental and physical development of the community by securing that efficient primary education, secondary education and further education are available to meet the needs of the population of their area."

4. The Authority in exercising its powers and performing its duties under the Act is by sec. 9 required to have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure. The Education Act 1981 had implemented the main recommendation of the Warnock Committee's Report that special education should be provided for children to meet their special educational needs rather than to provide for defined categories of handicap. So the needs of the population in the area of an authority include the need for special educational provision to be made for children who have special needs. Part IV of the 1996 Act contains the obligations of an authority to provide for children with such needs. Sec. 312(1) provides:

"A child has "special education needs" for the purposes of this Act if he has a learning difficulty which calls for special educational provision to be made for him."

5. In general a child has special educational needs if he has a significantly greater difficulty in learning than the majority of children of his age or has a disability which prevents or will when he is of school age prevent him from making use of the ordinary educational facilities in the authority's area. Chapter I of Part IV is concerned with the identification of a child's needs and the making of special provision to meet them. As a general principle, children with special educational needs should, subject to the wishes of the parent, be educated in a school which is not a special school provided he can there receive the special educational provision he needs and his education is compatible with the needs of other children in the school and the efficient use of resources (sec. 316). Chapter II of Part IV makes provision for special schools. They are approved by the Secretary of State and are of three categories: maintained special schools, grant-maintained special schools and special schools that are neither maintained nor grant-maintained schools. Sec. 342 gives the Secretary of State power to approve any school which is specially organised to make special educational provision for pupils with special educational needs (and which is not a maintained or grant-maintained school). It is clearly recognised in Part IV that the learning difficulties of children may be so diverse that it is necessary to make provision for them otherwise than in schools (see sec. 319) and in some instances to make provision for children to receive special educational provision outside England and Wales (see sec. 320). When such provision is made, the authority may make arrangements which include contributing to or paying fees charged by an institution outside England and Wales, the expenses reasonably incurred in maintaining him while he is at the institution or travelling to and from it, and expenses incurred by any person accompanying him. The authority is obliged to identify any child in its area who has special educational needs and to determine the special educational provision which needs to be made for him (see sec. 321). Having identified a child with such needs, the authority must assess the extent of those needs having first given notice to the child's parents that it proposes to make the assessment, informing them of their right to make representations. In making its assessment the authority must take into account any representations from the parents and if, after doing so, it remains of opinion that the child does need special educational provision the authority must make an assessment of his needs. That assessment takes the form of a statement of special educational needs for which provision is made by sec. 324. This section lies at the heart of these appeals. Recognising that such statements may well give rise to differences of opinion between the parents and the authority, the Act makes provision in sec. 326 for the parent of a child for whom the authority maintains a statement under sec. 324 to appeal against the contents of the statement to the Special Education Needs Tribunal. The nature of the appeal and the powers and duties of the Tribunal are also called in question in these appeals.

The Relevant Statutory Provisions.

The Statement of Special Educational Needs.

Sec. 324 of the Act provides:

(1) If, in the light of an assessment under section 323 of any child's educational needs and of any representations made by the child's parent in pursuance of Schedule 27, it is necessary for the local educational authority to determine the special educational provision which any learning difficulty he may have calls for, the authority shall make and maintain a statement of his special educational needs.

(2) The statement shall be in such form and contain such information as may be prescribed.

(3) In particular the statement shall -

(a) give details of the authority's assessment of the child's special educational needs, and

(b) specify the special educational provision to be made for the purpose of meeting those needs, including the particulars required by sub-section (4).

(4) The statement shall -

(a) specify the type of school or other institution which the local educational authority consider would be appropriate for the child,

(b) if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement, and

(c) specify any provision for the child for which they make arrangements under section 319 and which they consider should be specified in the statement.

(5) Where a local education authority maintain a statement under this section then -

(a) unless the child's parent has made suitable arrangements, the authority -

(i) shall arrange that the special educational provision specified in the statement is made for the child, and

(ii) may arrange that any non-educational provision specified in the statement is made for him in such manner as they consider appropriate, and

(b) if the name of a maintained, grant- maintained or grant-maintained special school is specified in the statement, the governing body of the school shall admit the child to the school.

(6) ...

(7) Schedule 27 has effect in relation to the making and maintenance of statements under this section.

6. So far as it is relevant to this case, Schedule 27 provides:

"Choice of school.

3.- (1) Every local education authority shall make arrangements for enabling a parent on whom a copy of a proposed statement has been served under paragraph 2 to express a preference as to the maintained, grant-maintained or grant-maintained special school at which he wishes education to be provided for his child and to give reasons for his preference.

(2) ...

(3) Where a local education authority make a statement in a case where the parent of the child concerned has expressed a preference in pursuance of such arrangements as to the school at which he wishes education to be provided for his child, they shall specify the name of that school in the statement unless -

(a) the school is unsuitable to the child's age, ability or aptitude or to his special educational needs, or

(b) the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources.

(4) ..."

Provision for Appeal

7. Provision is made for appeal against the contents of a statement by sec. 326 of the Act. It provides:

(1) The parent of a child for whom a local education authority maintain a statement under section 324 may -

(a) when the statement is first made,

(b) where the description in the statement of the authority's assessment of the child's special educational needs, or the special educational provision specified in the statement, is amended, or

(c) where, after conducting an assessment of the educational needs of the child under section 323, the local education authority determine not to amend the statement,

appeal to the Tribunal against the description in the statement of the authority's assessment of the child's special educational needs, the special educational provision specified in the statement or, if no school is named in the statement, that fact.

(2) ...

(3) On an appeal under this section, the Tribunal may -

(a) dismiss the appeal,

(b) order the authority to amend the statement, so far as it describes the authority's assessment of the child's special educational needs or specifies the special educational provision, and make such other consequential amendments to the statement as the Tribunal think fit, or

(c) order the authority to cease to maintain the statement.

(4) On an appeal under this section the Tribunal shall not order the local education authority to specify the name of any school in the statement (either in substitution for an existing name or in a case where no school is named) unless -

(a) the parent has expressed a preference for the school in pursuance of arrangements under paragraph 3 (choice of school) of Schedule 27, or

(b) in the proceedings the parent, the local education authority, or both have proposed the school.

(5) Before determining any appeal under this section the Tribunal may, with the agreement of the parties, correct any deficiency in the statement."

The Appeals to Mr Justice Dyson.

Richardson v Solihull Metropolitan Borough Council.

8. Mrs Richardson appealed to the Tribunal against the special educational needs and provisions specified in the statement of 16th August 1996 issued by Solihull Metropolitan Borough Council (the authority) in respect of her son Ben. She also appealed against the fact that no school was named in the statement. Ben is now five. He is autistic and the authority initiated a statutory assessment of his educational needs in June 1995. Mrs Richardson and the authority were unable to agree on the question whether Ben needed a residential placement as a consequence of his educational needs.
9. By January 1996 Ben's parents had raised sufficient funds to place Ben in the Boston Higashi School in the United States at a cost of approx. £1,000 per week. Although the authority agreed that the Higashi School was capable of meeting Ben's special educational needs as set out in Part 2 of the statement, it recorded in Part 3 that:

"The Authority are not of the opinion that a residential placement is required in order to meet Ben's special educational needs."

10. Part 4 of the statement refers to "Placement". The authority stated:

"Ben would benefit from attending a special school which caters for children whose learning difficulties are associated with autistic spectrum disorders and where the provision described under Part 3 can be made available. He is presently placed in an independent school of his parents choice at their own expense. The LEA are satisfied that the school is able to make the special educational provision specified in this statement."

11. In a letter accompanying the statement the authority explained its disagreement with the representations that Ben required a residential placement, stating that in its view Ben's needs could be met by one of a number of regional providers. Further the authority said it did not need to arrange the provision specified in Part 3 or to specify the name of the school in Part 4 because Ben had been placed at Higashi, a school able to meet his needs satisfactorily.
12. On 1st October 1996 Mrs Richardson appealed against the statement disagreeing with the description of Ben's educational needs, the proposed special educational provision and contending that the authority were under a duty to name the Boston Higashi School in Part 4. Before the Tribunal the authority did not put forward a particular school or produce any evidence as to the suitability or availability of any other school. At the hearing on 23rd January 1997 the parties agreed some alterations to the statement and the Tribunal in its decision published on 7th February 1997 recorded:

"The remaining issues to be determined by the Tribunal were the extent of Ben's autism and whether a residential placement was necessary as an educational need."

13. These two issues of fact the Tribunal decided in favour of the authority. After recording that the authority had produced no evidence of a suitable placement in this country, the Tribunal said:

"As a consequence and having regard to sec. 326(4) of the Education Act 1996, we are unable to name a school in Part 4 of Ben's statement. However we are able to record the type of school we consider appropriate for Ben to attend if he returns to this country to continue his education and our order reflects this."

14. It therefore amended Part 4 by substituting the following:

"Ben should attend a special school capable of delivering all the provision specified in Part 3, with such additional support if it be necessary in a non-residential setting."

15. Mrs Richardson appealed to the High Court and her appeal was heard by Mr Justice Dyson with the appeal of Mrs White to which I now turn.

White v London Borough of Ealing.

16. Mrs White was dissatisfied with the statements of special educational needs prepared by Ealing Borough Council ("the authority") for her twin sons Simon and David. Both boys suffer from learning difficulties associated with autism. Statements of David's and Simon's special educational needs were completed on 15th March 1996. It was agreed that both boys should go to the same school and, after setting out in Part 3 the special educational provision they needed, the authority in Part 4, "Placement", named Solent View School as the school where those needs could appropriately be met. Solent View School is a residential school but Mrs White disagreed with the placement and stated that her preferred school was the Higashi School in Boston. Mrs White appealed to the Tribunal. Unfortunately by the time of the hearing (which lasted three days) the places which Solent View School had reserved for David and Simon had been filled and there were no vacancies until September 1996. The authority then proposed Bradstow School in Broadstairs, Kent. The Tribunal concluded that neither Bradstow nor Higashi was appropriate, though it was of opinion that David and Simon required residential placements in order to develop their education and that it was appropriate for the authority to be fully responsible for funding the placements. It said in relation to David:

"The Tribunal consider there is provision suitable for David's needs in England."

17. A similar comment was made in relation to Simon.
18. It allowed the appeals to the extent of amending the statements in several respects. In Part 4 it deleted the reference to Solent View School and substituted a description of the type of school appropriate to the needs of the children but did not name a school. As amended, Part 4 of the statement in respect of David read:

"A school in England which can provide David with a structured and organised environment with well defined routines in a residential setting providing David with access to the National Curriculum differentiated as necessary consistent with his abilities. David's teachers should be trained and have experience in providing for the educational needs of pupils with autism/communication disorders and related social and behavioural difficulties. All the staff with whom David has contact should understand the educational, social and emotional needs of autistic children ..."

19. For Simon Part 4 of the statement was in similar form.
20. Mrs White appealed to the High Court contending that, having decided that Bradstow School was inappropriate, the Tribunal should have ordered the authority to name Higashi School in Boston in Part 4 of the statement. She also contended that the Tribunal, in arriving at their conclusion that there was provision suitable for David's and for Simon's needs in England, did so without evidence and apparently from its own expert knowledge. Consequently Mrs White had no opportunity to consider the schools which the Tribunal had in mind or to challenge their suitability. Nor could she make any informed preference.

The Decisions of Mr Justice Dyson.

21. Mr Justice Dyson summarised the issue of law raised in the appeals of Richardson and White. He said:

"In a nutshell, it is submitted on behalf of the appellants in both appeals that a tribunal is always under a duty to name a school as part of the special educational provision, where it is of the view that such provision should be made in a special school. A special school is defined by sec. 337 of the 1996 Act as one which is specially organised to make special educational provision for pupils with special educational needs. For the respondents, it is argued that, although there is a power to name a school as part of a special educational provision (whether the provision is to be made in a special school or not), there is no duty to do so."

22. After setting out the relevant statutory provisions, he concluded that there was no such duty as the appellants claimed. He pointed out that, in deciding whether a school was one which should be specified in the statement, the authority had to have regard to the general principles set out in sec. 9 and sec. 316 of the Act. Thus a decision to name or not to name a school involved a considerable element of judgment whether a particular school was appropriate for the child and whether, having regard to those principles and its general duties, a particular school "should" be named. He pointed to para. 3(3) of Schedule 27 which imposed a similar duty in relation to schools in the maintained sector. He held that the statute does not impose an absolute duty on the authority to name the school either in the case of schools in the maintained or in the non-maintained sector. Turning to the position of the Tribunal, he said that it would indeed be strange if there being no absolute duty on an authority to name a school, the Tribunal was required to order the authority to name a school in every case. No provision in sec. 326 expressly created such a duty in the Tribunal and he held that sec. 326(3)(b) gives the Tribunal power to order the authority to amend the statement so far as it specifies special educational provision and that special educational provision can include the naming of a particular school. But the fact that the school could be part of the special educational provision did not mean that there was a duty in all cases to name a school as part of that provision. Since it was conceded that neither the authority nor the Tribunal was obliged to name a non-special school in the statement, the statute only provided one set of criteria regardless of whether the school was a special school or a non-special school. He also pointed to the express provisions of sec. 326(4) which restricted the Tribunal's power to order the authority to name a school in a way which did not apply to the authority at an earlier stage. The absence in the section of any positive duty to order an authority to name a special school made it very difficult to conclude that Parliament impliedly intended the Tribunal to do so. He thus concluded that there was no duty on the authority or on the Tribunal to order the authority to name a school or a special school in every case regardless of whether the statutory criteria set out in sec. 324(4)(b) were satisfied, or whether performance of the statutory duties in secs. 9 and 316 required it. He said:

"It is a matter for the judgment of those bodies to decide whether or not to name the school, taking into account those statutory criteria and having regard to those statutory duties."

The Parties' Submissions.

23. For Mrs Richardson, Miss Booth Q.C. argued that on its proper construction, sec. 324 of the 1996 Act imposes a duty on the authority to specify the special educational provision to be made for the purpose of meeting the child's special educational need and, reading sec. 324(3)(b) with the provisions of 324(4)(a) and (b), the authority is required to specify the special educational provision, the type of school and, where Schedule 27 does not apply, the name of the school it considers appropriate. Since it is recognised that a special school provides facilities additional to those generally made for children, a school should be named.
24. Miss Booth referred to reg. 13 of the Education (Special Education Needs) Regulations 1994 SI1994/1047 and Part B of the Schedule to the Regulations. Under "Part 4: Placement", the form of statement says:

"(Here specify -

(a) the type of school which the authority consider appropriate for the child and the name of the school for which the parent has expressed a preference or, where the authority are required to specify the name of a school, the name of the school which they consider would be appropriate for the child and should be specified, or

(b) the provision for his education otherwise than at a school which the authority consider appropriate.)"

25. Miss Booth argues that the regulations pre-suppose that in some circumstances the local education authority are required to specify the name of a school which they consider would be appropriate for the child and should be specified. Equally, however, it may be remarked that the form pre-supposes circumstances in which the authority are not required to name a school but Miss Booth argued that the task of the authority is to identify which school is appropriate. She said that it is inconceivable that Parliament could have contemplated that a local education authority, having identified that the child had special educational needs and having specified the type of school needed to provide for those needs, nevertheless in its discretion could decide whether or not to identify an appropriate school. As the council is obliged to make provision for suitable education, there could be no reason not to require a local education authority to name an appropriate school.
26. Mr Kerr for the Solihull Local Education Authority argued that sec. 324(4) of the Act requires the local education authority in all cases to specify the type of school or other institution which it considers would be appropriate but in cases to which Schedule 27 does not apply the obligation to name a particular school only arises where:

(1) a school exists which the local education authority considers would be appropriate for the child and

(2) the local education authority has separately formed the view that that school should be specified in the child's statement.

27. For Mrs White, Mr Bowen adopted Miss Booth's argument that the authority was obliged to state the name of the school as part of the educational provision and that consequently the Tribunal was required to order the authority to do so. In the case of Mrs White's children, it was the Tribunal's duty to choose between the only two schools put forward by the parties. Having decided that Bradstow was not appropriate, it ought to have ordered the authority to name Higashi School in Boston. He invited the court on allowing the appeal to make the order the Tribunal should have made.
28. Miss Lieven appeared on behalf of the Special Educational Needs Tribunal. She supported the judge's decision for the reasons he gave. She said that Parliament could not have enacted the restriction in sec. 326(4) of the Act if it intended the Tribunal to be required to order the authority to name a school in other circumstances. In a case such as Mrs Richardson's the appeal process would be pointless if the Tribunal was obliged to name the school preferred by the parents. Further, if the Tribunal decided that the child did not need a residential placement, it would still be obliged to order the authority to name Higashi and, in effect, to ignore the requirements of sec. 9. In a case such as Mrs White's in which the Tribunal concluded that the Higashi School would not be appropriate, the Tribunal would nevertheless be bound to order the authority to name Higashi. Finally she argued that there was no logical reason why the Tribunal, when considering whether an authority should name a maintained or grant-maintained school under Schedule 27 should be required to take into account the efficient use of resources but have no such obligation or power if the school is a non-maintained, independent school.

Conclusion.

29. I am satisfied that Mr Justice Dyson's decision is correct. I would reject the submission that "special educational provision" in sec. 324 by necessary implication includes the naming of a particular school in every case. "Special educational provision" is defined in sec. 312:

"(4) In this Act "special educational provision" means -

(a) in relation to a child who has attained the age of two, educational provision which is additional to, or otherwise different from, the educational provision made generally for children of his age in schools maintained by the local education authority (other than special schools) or grant-maintained schools in their area, and

(b) in relation to a child under that age, educational provision of any kind."

30. Whilst this definition is clearly wide enough to include the naming of a particular school, it is not implicit that a school must be named. It is also clear from sec. 319 that an authority may make special educational provision in other ways than in a school.
31. Further it seems to me that the words in sec. 324(4)(b):

"... which they consider would be appropriate for the child and should be specified in the statement".

 require the authority only to specify the name of a school if it considers the school appropriate and that it should be specified. The authority thus has a discretion whether to name a school or not. Sec. 324(5) requires the authority to arrange that the special educational provision specified in the statement is made for the child unless the child's parent has made suitable arrangements and it is implicit in sec. 324(5)(b) that there may be cases in which the name of a maintained, grant-maintained or grant-maintained special school is not specified in the statement.

32. As to the position on appeal to the Tribunal, I share the judge's view that it is inconceivable that Parliament would have required the Tribunal to order the authority to name a particular school if it had not made it obligatory for the authority to do so. The judge regarded the strange and unacceptable results to which Miss Lieven pointed as supporting the conclusion at which he arrived. I agree with him and accordingly I would reject the arguments put forward on the appellant's behalf. I am satisfied that the judge was right to hold that the authority has a power, not a duty, to specify the name of a school which it considers appropriate and that on the hearing of an appeal under sec. 326 the Tribunal is not obliged to order the authority to specify the name of a school.
33. In the course of submissions we were referred to observations of Auld J. (as he then was) in R. v. London Borough of Hackney Ex Parte G.C. [1995] ELR 144 to the effect that sec. 7(2) of the Education Act 1981 may require Part 3 of a statement to include a reference to a particular school if the school by its very nature provides some special educational provision which is required for the child's special educational needs. We were also referred to the opinion of Pill L.J. in this court in the same case (1996 ELR 142, page 151F) that Part 4 (Placement) was intended to cover a situation in which educational needs render the naming of a type of school or a particular school necessary. Those observations are not, I think, inconsistent with my construction of secs. 324 and 326. If the special educational needs are so unusual that they could only be met by specifying the name of a specific school, no doubt the authority would consider that it should be specified. I do not, however, read either of the observations to which our attention was directed as holding that an authority was under a duty to specify the name of a specific school in every case.

White -v- Ealing Borough Council.

Was there procedural unfairness?

34. In an affidavit before the judge, Ms Fiona Phillips, Chairman of the Tribunal, explained the reasoning of the Tribunal. The Tribunal, which included two members who had particular experience of special educational needs and special schools, concluded that a school could be found in this country which was appropriate for the special educational needs of the two boys. It further decided that such a school represented the preferable solution on the basis of the evidence which it had heard. The question is whether the Tribunal, before arriving at this conclusion, ought to have stated its inclination to reach this determination and to have identified the schools which the expert members had in mind. On this aspect of the case the judge held that the members of the Tribunal were entitled to draw upon their experience and were not bound to act only on the evidence that was placed before them. Accordingly the Tribunal was entitled to reach the conclusion that an appropriate school could be found in this country.
35. Mr Friel for the authority submitted that the two members of the Tribunal were specifically appointed for their educational expertise and accordingly could properly use their own knowledge and experience in contributing to the Tribunal's decision. The use of such knowledge could reasonably be expected by the parties and did not render the procedure or the decision invalid for unfairness. He submitted that, although under its procedural regulations the Tribunal had power to adjourn the hearing, it was not obliged to do so. There was in reality no unfairness to Mrs White because in the reasons given by the Tribunal they had found that neither school suggested by the parties was appropriate. Sec. 328 of the Act enables a parent to request a further assessment to be made under sec. 323. Moreover regulations require such statements to be reviewed every twelve months. Accordingly there was ample scope for further discussion between the parents and the authority to resolve their differences in the light of the Tribunal's conclusions.
36. From a practical point of view I consider there is much to be said for Mr Friel's submission. I am conscious that it is sometimes difficult to distinguish between an expert Tribunal using the expertise for which its members have been chosen in deciding issues before it and using that expertise in a way which raises other issues the parties may not have had an opportunity to consider. I have no doubt that the specialist member of a Tribunal who had in mind a specific school which neither party had considered would regard it as fair and indeed in the child's interest to raise with the parties the possibility of the provision of such a school to meet the child's educational needs. In the present case I think it would have been preferable, once the Tribunal had decided that neither school proposed by the parties was appropriate, for the Chairman to have indicated this to the parties and told them that the expert members considered suitable arrangements could be made in this country, inviting submissions from the parties as to the course they wished the Tribunal to adopt in those circumstances. Nevertheless I am persuaded by Mr Friel's argument that it would not be appropriate to remit this matter to the Tribunal or to a fresh Tribunal, nor would it be in the interests of the two boys. In the course of argument we were told that there are indeed appropriate schools and one at least has places available for these two boys. I see little point in remitting the case to a fresh Tribunal when for all we know Mrs White may be prepared to accept placement at such school. If she does so, remission would be unnecessary. If she does not but still prefers placement at the Higashi School, the matter will no doubt come before a fresh Tribunal in any event. For these reasons, therefore, I would dismiss Mrs White's appeals.

Hereford & Worcester County Council -v- Karen Lane.

37. Karis Lane is now seven. She is severely affected with cerebral palsy and suffers from a condition known as Turner's Syndrome which affects her growth. She has special educational needs. On 9th May 1996 Hereford and Worcester Local Educational Authority ("the authority") issued a statement of special educational needs. In Part 4 of the statement the authority named Chadsgrove School, Bromsgrove, a maintained special school for children with physical disability. Karis had been a pupil at that school since January 1994. Mrs Lane appealed against the content of Part 3 of the statement and against the school named in Part 4. Mrs Lane's concern was that there should be included in Part 3 additional educational training for speech, language, occupational therapy and physiotherapy and she was particularly concerned that the physiotherapy provided was insufficient. The appeal was heard on 13th March 1997 and before the Tribunal the parties agreed on additions to the description of Karis's needs. So amended, the Tribunal found that the statement was a fair description of Karis's special educational needs and the provision to meet them. Mrs Lane asked the Tribunal to order the authority to specify the name of Ingfield Manor School in Sussex in Part 4 of the statement. Ingfield Manor School is a non-maintained special school approved by the Secretary of State under sec. 347 of the Act for children with physical disabilities. It is a residential school providing a twenty-four hour curriculum. The authority argued that Karis did not need a twenty-four hour regime and that it would not be an efficient use of its resources were the Tribunal to order that Karis should attend Ingfield Manor School. The Tribunal said:

"Whilst we were not convinced that Karis needed a 24 hour curriculum, the evidence presented to us did not persuade us that Chadsgrove school could deliver the provision as outlined in the LEA's own statement. The only alternative which we had before us was Ingfield Manor school, we therefore decided to name Ingfield in Part 4 of the statement."

38. The Tribunal ordered that Part 4 of the statement be amended to substitute Ingfield Manor School for Chadsgrove School.
39. The authority appealed to the High Court. It contended that the bare statement that "the evidence presented to the Tribunal did not persuade them that Chadsgrove could deliver the provision as outlined in the LEA's own statement" was an inadequate reason for substituting Ingfield Manor School. As the Tribunal was not convinced that Karis needed a twenty-four hour curriculum, Ingfield Manor School did not represent an efficient use of the authority's resources. The authority argued that unless it knew in what respects Chadsgrove School was unable to deliver the provision outlined in the statement, it could not propose an alternative school which could meet Karis's needs more fully than Chadsgrove. The authority's appeal was heard by Mr Justice Collins who gave judgment on 4th September 1997. He described the Tribunal's reasoning as "less than adequate" but considered that it was not appropriate to allow the appeal on that ground. He had the benefit of a copy of the judgment of Mr Justice Dyson in the cases of Richardson and White and agreed with him that neither the Tribunal nor the authority were under a duty to name a special educational school. Nevertheless he held that the Tribunal was entitled to take the view that as Ingfield was the only alternative referred to in the course of the hearing before the Tribunal, it was entitled to reach the conclusion that Ingfield was the appropriate school. From his judgment, the authority appeals.
40. Miss Appleby QC for the authority argues that the Tribunal misdirected itself in law as did the judge in holding that because Ingfield Manor was the only alternative they had before them they were therefore obliged to name Ingfield. Further, having found that they were not convinced that Karis needed a twenty-four hour curriculum, by ordering the authority to name Ingfield they were requiring it to disregard its obligation to make efficient use of resources. It was inconsistent to find on the one hand that the child did not need a twenty-four hour curriculum and at the same time to order the authority to name a school which provided one. The Tribunal's failure to specify the respects in which the special educational provision proposed by the authority at Chadsgrove fell short of the requirements of Karis's special educational needs meant that the authority had no opportunity to consider what additional provision might be made. Miss Booth QC for Mrs Lane argued that the Tribunal was entitled to conclude that the authority had identified the school that they considered appropriate to meet the special educational needs but as it had proposed no other school, or even the possibility of another school, the Tribunal was entitled to order the authority to name the school proposed by the parent. The fact that the named school made provision in excess of Karis's special educational needs by the provision of a twenty-four hour curriculum was immaterial provided the named school in fact met Karis's needs.
41. Mr Justice Collins said:

"The complaint about reasons would seem to me not to be a ground to allow this appeal if it stood on its own. By that I mean if it was clear that the only effective alternative to Chadsgrove was Ingfield, then all that the LEA needed to know was that the Tribunal had concluded that Chadsgrove was not able to provide for K.'s needs ... The question that is crucial to this case is whether the position was that in reality Ingfield was the only alternative in the circumstances ... That was the only alternative that was before it in the way that the matter was presented to it by each of the parties.

The local authority took its stance and presented its case on the basis that Chadsgrove was the right place for K. The parents said, "No, she needs twenty-four hours and, in any event, Chadsgrove does not meet her requirements. Look to see what has happened. She has not progressed as she ought. We nominate Ingfield because it does meet her requirements". That was the battleground ..."

Later he said:

"It seems to me that there is no obligation upon the Tribunal in a case where the options have apparently been parental choice or local education authority placement to adjourn the matter for consideration of another possibility purely on the basis that, if it looked hard enough, the local education authority might find some alternative. The Tribunal is entitled to assume that the education authority has applied its mind to the needs of this particular child and has identified that school which it considers to be appropriate for that child's needs. If it transpires that it is not and no suggestion is positively put forward that there is a particular other school, then the Tribunal is perfectly entitled to assume that there is, in reality, no point in leaving the option open to the local education authority to nominate another choice. In this sort of situation, if there really is another school which would fit the bill, then it is open to the local education authority to ask the Tribunal for a review ..."

42. After expressing some sympathy with local authorities who find themselves in the position of the appellants, he said:

"In the light of the way the matter was put before the Tribunal, it seems to me that it cannot be criticised for having failed to identify the possibility of an alternative school. That being so, the defect in the reasons - for the reasons that I have earlier given - becomes a matter which is not of vital importance because all that the local education authority needed to know was that Chadsgrove was not good enough."

43. Accordingly he dismissed the appeal.
44. In my view the Tribunal in this case did err in law. There were two issues it had to decide: first whether Karis needed a twenty-four hour curriculum and secondly whether the school named by the authority was appropriate. Having decided that Karis did not need the twenty-four curriculum but that the special educational needs were not met by specifying Chadsgrove School, the Tribunal in my view misdirected itself in holding that it should order the authority to name a school which provided a twenty-four hour curriculum. Both the Tribunal and Mr Justice Collins appear to have overlooked the requirement that the authority is bound to make efficient use of its resources and to avoid unnecessary expenditure in the performance of its duties under the Act. It is surely common knowledge that local education authorities have the unenviable task of eking out resources inadequate to meet all the demands upon them and it is obvious that the consequence of making over-provision for one child may mean under-provision for others. The Tribunal were not in my judgment forced into the situation of ordering the authority to specify the name of Ingfield Manor. The powers of the Tribunal under sec. 326(3)(b) are very wide. The Tribunal should at least have considered using its power to order the authority to amend the statement by specifying the type of school or provision which needed to be made and which Chadsgrove did not provide before ordering the authority to specify in the statement the name of a school which provided a curriculum which the child did not need. Although the provisions of Schedule 27, para. 3, did not apply because Ingfield Manor was a non-maintained school, nevertheless as Mr Justice Dyson had pointed out it would be astonishing if in such circumstances a Tribunal should disregard the requirement that the attendance of the child at the school had to be compatible with the efficient use of resources.
45. Nor do I regard it as significant that the appellant authority did not apply to the Tribunal to review its decision. The Chairman of the Special Educational Needs Tribunal has made it clear that the power of review will be exercised only exceptionally and it is easy to understand why this should be so. Generally such a course will be appropriate only if it is apparent from the statement of reasons that the Tribunal has either overlooked some significant matter or has made an obvious error on which it has based its conclusions.
46. It would not be appropriate to seek a review merely to re-argue the case.
47. I am satisfied that the authority have established an error of law on the part of the Tribunal and of Mr Justice Collins and would remit the case to be heard by a different Tribunal.
48. LORD JUSTICE PETER GIBSON: The primary questions raised in these appeals relate to the duties imposed on a local educational authority ("LEA") and a Special Educational Needs Tribunal ("SENT") respectively in respect of the naming of a school in the statement of special educational needs of a child for whom special educational provision is to be made. First, is there an obligation on the LEA in the case of every such child to name a school, as contended for by the appellant parents in the Richardson and White cases? Second, is there an obligation on the SENT to which an appeal is made in a case where a school is not named by the LEA, or the school so named is rejected, to order the amendment of the statement by requiring the naming of a school, as those appellant parents also contend? Third, where the school named by the LEA is considered by the SENT to be inappropriate but the school named by the parent is capable of meeting the child's educational needs, is the SENT obliged to order the amendment of the statement by naming the latter school, as is contended for by the respondent parent in the Lane case? A fourth question arises in the White case on whether, as the appellant parents contend, the SENT was procedurally unfair in concluding that the appropriate school could be found in this country without giving the parents a reasonable opportunity to comment upon or rebut the factual basis for that conclusion.

(1) Beldam L.J. has set out the statutory provisions and it is unnecessary to repeat them. There can be no doubt that where a statement in respect of a child falls to be made, the LEA must by the statement give the details of its assessment of the child's special educational needs and specify the special educational provision to be made for the purpose of meeting those needs, including the particulars required by s.324(4) Education Act 1996. In a case where the LEA is not required under Sch.27 to specify the name of a school, the wording of para.(b) of s.324(4) makes clear that the duty on the LEA to specify the name of a school is subject to two qualifications: one is that the LEA must consider the school appropriate for the child and the other is that the school "should be specified in the statement". The second qualification suggests that it is contemplated that there may be a school considered by the LEA to be appropriate but which should nevertheless not be specified. The significance of the words in para.(b) "and should be specified," and the similar language of para.(c) of s.324(4), is heightened by the absence of such qualification in para.(a) The second qualification in para.(b) appears to me to be an implied reference to the fact that there are other considerations which the LEA must bear in mind. It is not in dispute that the LEA must seek to avoid unreasonable expenditure (s.9) and have regard to the efficient use of resources (s.316). Similarly in a case governed by para.3 of Sch.27 the duty placed on the LEA to name a school where the parental preference is for a maintained, grant-maintained or grant-maintained special school is qualified by two conditions, one as to suitability and the other as to compatibility with the education of the other children at the school and the efficient use of resources.

49. In my judgment it is therefore apparent from the statutory language that there is no absolute duty on the LEA in every case to name a school. I do not doubt that in most cases the circumstances would be such that the LEA, having specified the type of school which it considers appropriate, if it considers a particular school appropriate for a child will also consider that the school should be specified in the statement. As Miss Booth Q.C. for the Richardson and the Lane parents rightly points out, the Code of Practice, to which regard should be had (s.313(2) and (3)), contemplates that there will be a school named in Part 4 of the statement. But in accordance with the governing words of s.324(4), it is a matter for the judgment of the LEA whether that should be done in a particular case. The LEA will bear in mind that if a school is not named in the statement that in itself is a ground of appeal. But the very fact that it is expressly contemplated in s.326(1) and (4) that there may be cases where no school is named in the statement tends to provide support for the view that there is no absolute duty to name a school. I therefore agree with the reasoning and conclusion of Dyson J. on this first question.

(2) The parent is entitled to appeal to the SENT on any of 3 grounds: (i) the description in the statement of the LEA's assessment of the child's special educational needs, (ii) the special educational provision specified in the statement, and (iii) if no school is named in the statement, that fact (s.326(1)). On the appeal the SENT has 3 courses open to it: it may (a) dismiss the appeal, or (b) order the LEA to amend the statement, so far as it describes the assessment of the child's special educational needs or specifies the special educational provision, and make such other consequential amendments to the statement as the SENT thinks fit, or (c) order the LEA to cease to maintain the statement (s.326(3)).

50. It is implicit in s.326 that the SENT has power to order the LEA to amend the statement by naming a school (subject to s.326(4) which prevents the exercise of that power unless either the parent has expressed a preference for the school in pursuance of arrangements under para.3 of Sch.27, or in the proceedings the parent, the LEA or both have proposed the school). The power for the SENT to order the naming of the school seems to me to come within the reference in s.326(3)(b) to ordering the LEA to amend the statement so far as it specifies the special educational provision, given that by s.324(3)(b) the special educational provision is to include the particulars in s.324(4) and the naming of the school is one such particular. But I can find no positive obligation in the statutory provisions that the SENT must order the LEA to name a school in the statement. Indeed, as Miss Lieven for the SENT submitted, when one finds in s.326(4) that the circumstances are spelled out in which the SENT must not name a school, it would be surprising if it were intended that a duty to name a school in all other circumstances should be left to be implied.
51. The fact that the LEA is not under an absolute duty to name a school in every case is a strong pointer to there being no duty on the SENT to require the LEA to name the school. To my mind the obvious intention of Parliament must be taken to be that the decision whether or not the SENT should require the LEA to name a school should be left to the judgment of the SENT applying the relevant criteria. Again I am in entire agreement with the reasoning of Dyson J. on this point. Like Beldam L.J. and for the reasons he gives I do not regard the obiter observations in R. v London Borough of Hackney, ex parte GC [1995] E.L.R. 144 at p.151 and [1996] E.L.R. 142 at 151 as supporting the proposition that the LEA must in all cases name a school or that the SENT must in all cases order that a school should be named.

(3) It follows from the conclusion which I have reached on the second question that the SENT is not obliged to order the amendment of the statement by naming the school named by the parent even if that is capable of meeting the child's educational needs and the school named by the LEA is found by the SENT not to be appropriate. It must exercise its own judgment, and have regard to such matters as the duty on the LEA to avoid unreasonable expenditure and to use resources efficiently. It defies common sense that even though the school named by the parent is a considerably more expensive residential school and even though the SENT regards that school as providing far more than is needed, the SENT has no choice but to require the naming of the school of the parent's choice. In my judgment, the SENT in the Lane case adopted the wrong approach. I also respectfully disagree with Collins J. in so far as he was saying that the SENT could not amend the statement by simply deleting the name of the school which was put forward by the LEA but found by the SENT not to be capable of delivering the required special educational provision. The SENT in such circumstances has a choice. It can adjourn the hearing to enable the LEA to come up with the name of another school capable of delivering the special educational provision, or it can determine the appeal by ruling against any school put forward by either party which it finds inappropriate and name no school. This assumes that the special educational provision has been described satisfactorily. If it has not, then it can amend the description.

52. I am further unable to agree with the suggestion by Collins J., in the passage in his judgment which Beldam L.J. has cited, to the effect that if the school named by the LEA proves not to be appropriate and no other school is positively put forward by the LEA, then the SENT is entitled to assume that there is no point in leaving the option open to the LEA to nominate another choice. The result would be, as Miss Appleby Q.C. for the LEA points out, that the onus would be on the LEA to put forward positively a range of alternatives in case the SENT disagrees with the LEA's choice, with serious consequences for the length and complication of hearings before the SENT. I can see no basis for assuming that because the LEA has only put forward one school, the only alternative is the parent's choice of school. Nor is it clear to me that the judge was right to suggest that, if the LEA has not put forward a second choice but an alternative school which the LEA considers appropriate is available, the LEA could obtain a review under Reg.31(1) of the Special Educational Needs Tribunal Regulations 1995. I think it very doubtful whether the LEA could bring the case within any of the grounds specified in that regulation.

(4) Mr. Bowen for the parents in the White case advanced a powerful argument that the SENT was procedurally unfair in ordering that the statements of both the White boys be amended to name a school in England which could supply the special educational provision as set out in SENT's amendment, when the underlying reason was explained as being that "an appropriate school could be found in this country", and the parties had not been given the opportunity to comment upon or rebut the factual basis of that reasoning. I own to having seen much force in that argument. Although the SENT is a specialist tribunal with members appointed for their expertise, it is important that the SENT obeys the rules of natural justice and that the members should not give evidence to themselves which the parties have had no opportunity to challenge.

53. However, for the reasons given by Beldam L.J. I am satisfied that in the circumstances of this case it would not be appropriate or in the interests of the children to remit the matter to the SENT or to another SENT. There was no obligation to adjourn the hearing of the appeal, which would have left the question of the appropriateness of the school proposed by the parents undetermined. The solution adopted by the SENT leaves it to the parties to attempt again to agree on an appropriate school.
54. In the result, I would dismiss the appeals in the Richardson and White cases and allow the appeal in the Lane case. I agree with the orders proposed by Beldam L.J.
55. LORD JUSTICE SCHIEMANN: I agree with the judgment delivered, and the orders proposed by, Beldam L.J. I desire only to add some words in relation to the submissions to the effect that there is a duty on the LEA to specify a school in every statement.
56. The policy behind this legislation is that children with special educational needs should have them met. The first task of the LEA is to identify those children with such needs^[1] and to identify those needs^[2]. The second task of the LEA is to indicate what special educational provision should be made for meeting those needs. This need not necessarily be in a school^[3]. The third task is to ensure that this special educational provision is available to the child. In the appeals before us we are not concerned with first and second task. We are concerned with where provision for the child's needs should be made and whether that school, if it be a school, should be named in the statement.
57. The first person with rights in relation to the education of a child is its parent. That theme seems to me to run through the Act^[4]. Miss Booth meets this point by submitting that if a school is specified in part 4 of the Statement the parent is still free to educate it elsewhere and the contrary was not, I think, argued. Nevertheless, if the LEA is satisfied that the parent's choice of educational provision for the child will, without further involvement by the LEA, result in the appropriate special educational provision being made for the child there is no need for the LEA to specify any school in the statement. The parent will have made suitable arrangements for the education of the child^[5].
58. However, some schools require payment for their services from the parent. The parent may not have, or may not be willing to devote, money to the education of his child. Where the parent proposes a non-maintained school for the child s.348 of the Act comes into play. This reads as follows:-
59. This section applies where -

(1) (a) special educational provision in respect of a child with special educational needs is made at a school which is not a maintained school; and

(b) either the name of the school is specified in a statement in respect of the child under Section 324 or the Local Education Authority are satisfied -

(i) that his interests require the necessary special educational provision to be made for him at a school which is not a maintained school, and

(ii) that it is appropriate for the child to be provided with education at the particular school.

(2) Where this section applies, the Local Education Authority shall pay the whole of the fees payable in respect of the education provided for the child at the school and if -

(a) board and lodging are provided for him at the school, and

(b) the authority are satisfied that the necessary special educational provision cannot be provided for him at the school unless the board and lodging are also provided,

the Authority shall pay the whole of the fees payable in respect of the board and lodging.

(3) In this Section "maintained school" means -

(a) a school maintained by a Local Education Authority,

(b) a grant-maintained school, and

(c) a grant-maintained special school.

60. Understandably, parents, rich and poor, who propose a non-maintained school for their child are anxious that the name of the school be specified in the statement so that the LEA are obliged to meet the fees. This desire is frequently evident in these cases. Some parents feel, and at one point in her oral submissions Miss Booth Q.C. submitted, that "The whole system is designed to find a school for which the State will pay." I do not consider that an analysis of the Act's provisions bears this out. Certainly s.348 does not impose any duty to specify the name of the school in the statement.
61. Where the parents of the child have not made suitable arrangements, then it becomes the duty of the LEA to do so. That will often involve securing admission to a school. This may not present any difficulties but it may. One of the advantages of specifying the name of a school in the statement is that the governing body of the school then comes under a duty to admit the child to the school^[6].
62. Where the LEA are required by virtue of s.437(3) to serve a school attendance order in respect of a child for whom they maintain a statement this can not be done unless the statement specifies the name of a school^[7]. While there is provision^[8] for the amendment of a statement which does not specify a school so that it does specify a school, the procedure takes time and so there are advantages in having the school specified.
63. There are, I accept, a number of circumstances in which it is desirable to have the name of a school specified in a statement, but in my judgment it will not necessarily always be desirable. I take some examples from Mr Kerr although these need not be regarded as exhaustive. Where the child is being excellently educated at home or where the parents are about to move to another part of the country or abroad there seems little point in the LEA spending time and money in identifying a local school. The position in relation to the availability of places may be changing daily just at the crucial time for the finalising of the statement. There may be cases (perhaps one such is before us) where the parent is resisting all solutions other than local Authority financing of education at a non-maintained school but the LEA is in a position to suggest a number of suitable schools. In such cases, once it has been decided beyond the possibility of appeal that the specification of the parent's school of choice in the statement will not take place, the parent may be willing to discuss fruitfully with the LEA which of the remaining options is most attractive to the parent. Specifying a school in a statement will not in general be reasonably possible until that school has been consulted and it is clear that there will be a place for the child. This may involve the paying of a reservation fee. To do so may well not be a sensible course for a LEA to pursue when other possibilities remain to be discussed.
64. The statute proceeds on the assumption in a number of places, some of which have been referred to by Beldam L.J., that the name of a school will not always have been specified. Nowhere is an express duty to specify a school in all cases placed on the LEA. I see no reason to imply one. I accept that in theory there may be cases where it will be perverse not to specify a school. However no such perversity case has been argued in any of the cases before us. Nor from what material that I have seen could it have been argued.

ORDER: In the case of Richardson; appeal dismissed with a section 18 order in relation to costs. Leave to appeal to the House of Lords refused.

In the case of White; appeal adjourned.

In the case of Hereford & Worcester; appeal allowed with costs. Leave to appeal to House of Lords refused.

(Order not part of approved judgment)

Reason for this decision:

65. LORD JUSTICE BELDAM:    The judgment in this case was made available to the parties on 11th February. When on 12th February in open Court the judgment was handed down, Mr Bowen for the appellant questioned the accuracy of the statement at page 26 that:

"In the course of argument we were told that there are indeed appropriate schools and one at least has places available for these two boys."

66. Eventually it was conceded that the Court had been told this but it appeared that Mrs White did not accept that the schools which had been identified were suitable or that any places were available. Mr Bowen argued that the decision of the Court not to remit the case for rehearing by a fresh Tribunal was therefore based on a misunderstanding of the true facts. He also referred to the observations at page 25-26 in my judgment:

"In the present case I think it would have been preferable, once the Tribunal had decided that neither school proposed by the parties was appropriate, for the chairman to have indicated this to the parties and told them that the expert members considered suitable arrangements could be made in this country, inviting submissions from the parties as to the course they wished the Tribunal to adopt in those circumstances".

67. This, he said, amounted to a clear finding that the Tribunal had been guilty of procedural unfairness to the appellant, and to a clear finding that she had been denied natural justice. Accordingly the Court ought to reconsider whether it should make an order remitting the case for hearing before a fresh Tribunal. As the Court was unable to re-arrange its business and to embark upon fresh submissions from the parties, the Court suggested that it should receive short submissions in writing. Regrettably advantage has been taken of this opportunity to make submissions more extensive than those at the original hearing. These submissions include further evidence, for which leave was neither sought nor granted. Insofar as the submissions rely upon questions of fact, I am prepared to accept (though I am not convinced) that the Court in accepting the statement which is now challenged was misinformed. I shall therefore consider on the basis of the arguments submitted whether in the absence of this statement I would have allowed the appeal and ordered the case to be remitted for a rehearing before a fresh Tribunal.

The origin of the complaint of procedural unfairness: The appellant's complaints of procedural unfairness before Dyson J. were contained in Ground 6 of the Re-amended Notice of Motion. In summary it was said that:

(a) The applicant was deprived of a fair and proper hearing because the Tribunal failed to allow the applicant to put her case concerning the loss of the potential places at Solent View.

(b) That the decision to reach but not to issue the decision in Simon's case before hearing David's appeal fettered the 2nd respondent's discretion and pre-determined the result against the applicant's case.

(c) That the applicant had been denied a fair opportunity of refuting evidence given by a witness for the 2nd respondent.

(d) That one of the members of the Tribunal had fallen asleep during the hearing.

68. These allegations were considered by Dyson J. who rejected them as being without foundation. However in the course of counsel's submissions the judge suggested that they might have been put forward in a different guise to found an argument of procedural unfairness. He apparently suggested to Miss Lieven, who appeared for the Tribunal, that if the Tribunal were to draw on its experience and expertise (as it was common ground they could do) they were obliged to give the parties a reasonable opportunity to comment upon or rebut the use of that experience or expertise.
69. In the course of his judgment the judge did not deal specifically with the argument he had suggested. He did, however, record at page 23 of his judgment his reasons for rejecting the appellant's first ground of appeal:

"It is noteworthy that even the evidence relied on by Mr Bowen did not go so far as to say that suitable schools did not exist in this country at all; merely that enquiries had not discovered any vacancies at the time of the enquiries. In my view the Tribunal was entitled to hold that an appropriate school could be found in this country.

Secondly, even if there were no vacancies at the time of the enquiries, the Tribunal was entitled to decide that it was better to place the children in a suitable school when a vacancy arose than to send them to the unsuitable Higashi School. That was a matter for the judgment of the Tribunal. No error of law is disclosed and the first ground of appeal fails."

70. Dyson J. went on to reject the other grounds of procedural unfairness and want of natural justice which had been alleged.
71. The Notice of Appeal alleged in Ground 3 errors of law on the part of the judge in reaching the finding quoted and ironically, as it was he who had raised the question, alleged that:

"The learned judge failed to appreciate, as had been canvassed in argument, that an expert Tribunal was only entitled to rely upon their own expertise if the party to be affected by the use of that expertise is given an opportunity to make representations upon the point. No such opportunity was given in this case. Such failure amounted to a breach of natural justice which should have resulted in the consolidated appeals being remitted to a freshly constituted Special Educational Tribunal."

The additional submissions: The submissions now put before the Court proceed from the statement:

"It is clear from the judgment that procedural unfairness/a breach of natural justice was established by the appellants."

72. I reject this interpretation of the words used in the passage relied on. Had I intended to hold that the appellant had been denied natural justice, I would have said so in terms. I did not make such a finding. In the course of her submissions on behalf of the Tribunal Miss Lieven had drawn the Court's attention to the powers of the Tribunal to adjourn or to rehear appeals. While satisfied for the reasons given by the judge that the Tribunal had been entitled to hold that an appropriate school could be found in this country and that the specialist members of the Tribunal could rely on their expertise, I felt it right to refer to the sometimes difficult task of deciding how far the use of that expertise amounted to reliance on evidence which the parties may not have considered and it seemed to me that in the circumstances of the present case it would have been preferable, as I said, for the chairman to have raised the question with both parties. In my view the failure to give this opportunity did not affect the decision of the Tribunal on the suitability of the two schools proposed. It might have affected the procedure the Tribunal then adopted.

Relief: As to the suggestion that the Court should now remit for consideration by a fresh Tribunal the statement of special educational needs made in respect of Simon and David on 15th March 1995, I do not understand the purpose of such an order. The finding of a Tribunal could only relate to a statement made three years ago. Since that statement other annual statements have been made. We understand that a subsequent statement or statements are under appeal. The parties are still locked in combat over the question whether suitable educational provision can be made in England and Wales. Whatever our understanding was at the time of the hearing, the position concerning availability of places in 1998 is likely to be different from that in 1996. It is surely better that the future education of Simon and David should be decided upon contemporary, rather than on historic, facts. The power of the Court on the hearing of an appeal under O.55 to remit the matter for a rehearing is discretionary; under O.55, r.7(7), the Court is not bound to allow the appeal merely because a Tribunal has misdirected itself, or failed to direct itself, unless in the Court's opinion a substantial wrong or miscarriage has thereby been occasioned. I am not satisfied in the present case that the appellant has suffered a substantial wrong or miscarriage of justice and I accordingly reject the appellant's further submissions.

73. When the judgment was handed down and before the matters dealt with in this supplementary decision were raised by Mr Bowen, Mr Friel applied on behalf of the London Borough of Ealing for an order under s.18 of the Legal Aid Act 1988 that the Authority's costs of appeal should be paid by the Legal Aid Board. When we decided that the matters raised by Mr Bowen should be dealt with on paper, we agreed at the same time to consider Mr Friel's application for costs.
74. We are satisfied that in the circumstances of this appeal it is just and equitable for provision for the costs of appeal to be made out of public funds. We direct that Mrs White should have no present liability to satisfy any part of the Court of Appeal costs and we order that the London Borough of Ealing's costs, including the costs incurred as a result of submitting written representation on the matters dealt with in this subsidiary decision, should be paid by the Legal Aid Board. The operation of this order will be suspended for a period of ten weeks for the Board to make representations. If such representations are made, the suspension will continue. Otherwise the order will take effect without further order and subject to the usual conditions.
75. LORD JUSTICE PETER GIBSON: In my earlier judgment I said of Mr Bowen's argument on procedural unfairness: "I own to having seen much force in that argument". But I did not find that procedural unfairness was established. I was not and am not satisfied that the White parents have suffered a substantial wrong or miscarriage of justice. I concur in the reasons given by Beldam L.J. for rejecting their further submissions.
76. LORD JUSTICE SCHIEMANN: For the reasons set out in the judgments by Beldam and Peter Gibson LJJ, I agree that it would be inappropriate to remit this case to a fresh Tribunal.

Note 1   s.321(1)    [Back]

Note 2   s.323    [Back]

Note 3   s.319(1)    [Back]

Note 4   See also Article 2 of the First Protocol to the European Convention on Human Rights.    [Back]

Note 5   s.324(5)(a)    [Back]

Note 6   s.324(5)(b)    [Back]

Note 7   s.441    [Back]

Note 8   s.441 (3)     [Back]