England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
CIVIL DIVISION
ON APPEAL FROM THE HIGH COURT
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT LIST

		The Royal Courts of Justice The Strand London Tuesday 18 December 2001

Tuesday 18 December 2001

1. LORD JUSTICE SIMON BROWN: The appellants are the parents of a child, S, now aged 10. Their appeal to this court raises a short but not unimportant point of law concerning the jurisdiction of the Special Educational Needs Tribunal ("SENT"). It is brought from a decision of Maurice Kay J on 12 July 2001 dismissing their statutory appeal from a decision of the SENT on 14 March 2001, ruling that the Tribunal had no jurisdiction to hear the parents' appeal against a decision of the respondent local education authority made on 31 August 2000.
2. The point is best identified, and in any event falls to be resolved, by reference to the governing statutory provisions. These are principally sections 323, 324 and 325 of the Education Act 1996 which, so far as presently material, are as follows:

"323. Assessment of educational needs

"(1) Where a local education authority are of the opinion that a child for whom they are responsible falls, or probably falls, within subsection (2), they shall serve a notice on the child's parent informing him -

(a) that they propose to make an assessment of the child's educational needs ....

(d) of the parent's right to make representations, and submit written evidence ....

(2) A child falls within this subsection if -

(a) he has special educational needs, and

(b) it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for.

(3) Where -

....

(b) the authority remain of the opinion, after taking into account any representations made and any evidence submitted to them in response to the notice, that the child falls, or probably falls, within subsection (2),

they shall make an assessment of his educational needs."

3. I need not read subsections (4), (5) and (6).

"324. Statement of special educational needs.

(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 .... it is necessary for the local education 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."

4. I need read no more of section 324.

"325. Appeal against decision not to make statement

(1) If after making an assessment under section 323 of the educational needs of any child for whom no statement is maintained under section 324, the local education authority do not propose to make such a statement, they shall give notice in writing of their decision, and of the effect of subsection (2) below, to the child's parent.

(2) In such a case, the child's parent may appeal to the Tribunal against the decision.

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

(a) dismiss the appeal.

(b) order the local education authority to make and maintain such a statement, or

(c) remit the case to the authority for them to reconsider whether, having regard to any observations made by the Tribunal, it is necessary for the authority to determine the special educational provision which any learning difficulty the child may have calls for."

5. The critical issue to arise is whether, if the SENT remit a case for reconsideration by the authority under section 325(3)(c), and if on reconsideration the authority again propose not to make a statement under section 324, a further right of appeal arises under section 325.
6. The point being purely one of law, the detailed facts of the case are of no importance. The following brief summary will accordingly suffice. Between October 1999 and January 2000, whilst S was aged 8, the respondent authority carried out an assessment of his educational needs under section 323. Having done so, they concluded that it was not, after all, necessary for them to determine the special educational provision which his learning difficulty called for. They thought that his needs could be met through the resources available within his current school. They accordingly decided not to make a statement of his special educational needs under section 324 and instead issued a "Note in lieu of statement" in accordance with the code of practice on the identification and assessment of special educational needs.
7. In compliance with section 325, the respondents thereupon notified the appellants of their decision and of the appellants' right of appeal to the SENT. The appellants duly appealed and that appeal was heard on 4 July 2000. By then S had been out of school for two terms, having been withdrawn by the appellants from his original school. The SENT in the event thought the note in lieu insufficiently detailed and specific in certain respects and they concluded:

"It is clear to us that there has been a considerable change in S's circumstances since the issue of the note-in-lieu, and we therefore believe that S's interests will be served by remitting this case to the LEA for reconsideration having regard to the observations made above."

8. The order made by the tribunal was:

"The LEA is to reconsider whether, having regard to the observations made by the Tribunal, it is necessary for the LEA to determine in more detail the special educational provision which S's learning difficulties call for."

9. That, plainly, was an order for the case to be reconsidered under section 325(3)(c) of the Act.
10. On 31 August 2000, having received fresh representations and evidence from the appellants, the respondents wrote to inform them of the outcome of their reconsideration. This was that they were still not proposing to make a statement, but proposed instead to amend the notice in lieu. The appellants again sought to appeal, but this time were met by the respondents' application for the appeal to be struck out under regulation 36(1) and (2) of the Special Educational Needs Tribunal Regulations 1995.
11. The grounds of the strike-out application were (a) that the appeal was not within the jurisdiction of the tribunal; alternatively (b) that the appeal was "scandalous, frivolous or vexatious." On 14 March 2001, as already stated, the SENT struck out the appeal on the first ground, namely that the appeal was not within their jurisdiction. They declined to rule on the authority's alternative submission that it should be struck out under regulation 36(2)(b) as being "scandalous, frivolous or vexatious."
12. The judge below recorded the respondents' argument, advanced then, as before us, by Mr Richard McManus QC, as follows:

"... a right of appeal under section 325 only arises when a local education authority declines to make a statement after making an assessment under section 323. Those emphasised words which appear in section 325(1) are of fundamental importance. In the present case, whilst the first decision not to make a statement followed an assessment under section 323 and gave rise to the first appeal, the second decision not to make a statement did not follow a further assessment under section 323. It followed further representations and material but it is common ground that what took place at that stage was not a further statutory assessment under section 323."

13. That argument the judge accepted, holding that:

"A right of appeal only arises under section 325(1) and (2) and the second decision not to make a statement did not come after making an assessment under section 323."

14. The judge regarded the words of the statute as"unambiguous" and the answer as "plain." He furthermore observed that this conclusion did not, of course, leave the parents without redress:

"... the remedy is not a further appeal to the Tribunal but an application for judicial review."

15. In granting permission to appeal to this court on 2 October 2001, I commented:

"The appeal raises an important issue of jurisdiction which I do not think is so easily resolved as the judge below thought. It is certainly realistically arguable that 'after making an assessment under s.323' means following upon rather than directly after ie it encompasses not merely the first decision but also any subsequent reconsidered decision."

16. That, of course, is essentially what Mr Friel has been contending throughout these proceedings on behalf of the parents.
17. There is no doubt that a fresh decision was made by the authority upon reconsideration of the case. So much, indeed, Mr McManus readily acknowledges. That, however, is not the critical question. The critical question is whether it was properly to be regarded as a decision "after making an assessment under section 323". Mr McManus submits, as he submitted below, that the decision made on reconsideration here was not to be so regarded. The authority had not undertaken any fresh assessment under section 323. By the time of the reconsidered decision, the assessment was, he contends, "purely historic" and could not ground any further appeal. There is, he submits, only one right of appeal from a decision not to make a statement following an assessment. In order to trigger a fresh right of appeal from a fresh decision not to make a statement, there has first to be a fresh assessment. That is the argument.
18. For my part I cannot accept it. I see no reason why the initial section 323 assessment should be regarded as historic or otherwise spent merely because the initial decision which followed it has already been appealed and the authority has been required to reach a fresh decision. Nothing in the language of section 325 to my mind compels such a conclusion, and neither can I see any sound policy reason for it. As to the language of section 325, all that is required to trigger the right of appeal is, first, an assessment and, second, a decision proposing not to make a statement. There is simply nothing said in the section as to whether that is confined to the first such decision or whether, as here, it encompasses also a second decision made upon reconsideration - or, indeed, at least theoretically, any subsequent decisions made on yet further reconsideration following remission by the SENT. There is, in short, nothing in the language or structure of section 325 to shut out the apparent right of appeal merely because there has been an intervening appeal resulting in a remission requiring a fresh decision.
19. As to the policy of the legislation, it seems to me altogether preferable that an aggrieved parent should have a further right of appeal to the SENT than that he should be driven, as the judge below suggested, to the Administrative Court to apply for judicial review. Judicial review seems to me clearly a less appropriate and more cumbersome and expensive remedy for a case like this.
20. The judge below suggested that, if the applicants' argument were correct:

"... a single, historical section 323 assessment could found numerous appeals against subsequent decisions not to make a statement".

21. I find this difficult to follow. There can only be as many additional appeals as there are adverse reconsidered decisions following remission by the SENT. If an appeal is dismissed, that plainly is that. Mr McManus suggests that the SENT may be driven to remit for reconsideration more than once, for example by the parents adducing, at a second appeal, evidence from an expert which cannot simply be discounted out of hand. That seems to me an insubstantial spectre. The SENT will inevitably be considering any appeal in the context of the preceding section 323 assessment, and it will be alert to ensure that parents do not abuse the provision. If, clearly, time has passed or events have moved on, so that a further assessment becomes essential before there can be any worthwhile further reconsideration of the need for a statement, then the SENT will doubtless dismiss the appeal.
22. Of course the tribunal must not be plagued with hopeless and misconceived appeals by disaffected parents, but the safeguard against this lies in their power under regulation 36(2)(b) to strike out appeals that are truly "scandalous, frivolous or vexatious", the very power which the tribunal chose not to consider exercising in this particular case. I am not, of course, saying that that power could appropriately have been exercised here: we have simply never had to engage with the merits of this particular case. I am pointing out only that the power exists and is available to guard the SENT against appeals which plainly should never have been brought.
23. That is all I think it necessary to say on the appeal. Arguments were canvassed before us, both orally and in writing, in reliance on other sections of the Act too, in particular sections 323, 326 and 329. In my judgment, however, they provide no true assistance to either side on the single point now at issue. Sometimes rights of appeal to the SENT are conferred under the statute, sometimes they are not. Illustrations either way cannot resolve the narrow question arising under section 325 here. As to that, I have already expressed my view.
24. I would allow this appeal.
25. LORD JUSTICE WALLER: I agree. It is a conclusion which I reach in agreement with my Lord by a process of statutory construction. It is one that I reach with relief. Indeed, that the construction favoured by my Lord is the right one is supported by the following consideration. If a power is given to an appellant body to remit a decision of a first instance body for reconsideration, it makes very little sense to contemplate that the appellant authority should not have the power to review the reconsidered decision. I suggest one would contemplate, in normal circumstances, that one objective of having the power to remit would be to allow the appellant body itself to continue to consider the decision of the first instance body. That would include, on the second occasion, of course, the appellant body considering the question whether the first instance body had itself now properly taken into account the comments of the appellant body.
26. That, as it seems to me, is a much more sensible process for consideration of a reconsidered decision than contemplating going off to some other body on judicial review, as suggested by Mr McManus.
27. I thus agree that this appeal should be allowed.
28. LORD JUSTICE SEDLEY: I too agree that this appeal should be allowed. Mr McManus in his - as always - helpful and concise submissions has not been able, to my mind, to demonstrate any reason why Parliament should have meant to limit the phrase "after making an assessment" to the immediate aftermath of a notice of non-statementing. If he is right there would be no appeal even in a case where a remission has resulted in a Note in Lieu containing new data or conclusions which arguably call for a statement. His reliance on the availability of judicial review, even now that closer scrutiny than before is probably called for in education cases, is no real substitute. The court would still be concerned not, as the Special Educational Needs Tribunal is, with the educational merits, but only with whether the decision was tenable.
29. Nor, it seems to me, does Mr McManus derive any real help from other situations where, as he submits, no appeal lies. A decision by the local education authority to make an assessment under section 323 may not be appealable, but the content of any eventual statement will be, and with it the conclusions arrived at by the assessment. Equally, while there is no direct right of appeal from a decision not to make an assessment, there is a right under section 329(1) to request one and a right of appeal under section 329(2) against a refusal.
30. The Special Educational Needs Tribunals system has proved its worth. It has the necessary means, as Lord Justice Simon Brown has pointed out, to protect its process from abuse by pointless or vexatious appeals. It would be a misfortune if the gap in its jurisdiction which Maurice Kay J found to exist did exist, and it is reassuring to find that it does not.
ORDER: Appeal allowed. The order below for costs to be set aside. The appellants to have 80% of the costs below, and the full costs of the appeal. Permission to appeal to the House of Lords refused. (Order not part of approved judgment)