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
(Mr Justice Ouseley)

		Royal Courts of Justice Strand London WC2 Thursday, 17th May 2001

Thursday, 17th May 2001

1. LORD JUSTICE BUXTON: This is a renewed application for permission to appeal against the decision of Ouseley J in judicial review proceedings delivered by that judge on 12th January 2001. The complaint was originally in two parts: one was in respect of a refusal of the defendant local authority to assess the applicant in respect of special educational needs; the second is in respect of the allegedly unlawful policy that the authority adopts in performing its duties under the Education Act 1996.
2. The first of those applications was rejected by the judge on the grounds of standing and because the complaint itself is to be considered, as I understand it, by the Special Educational Needs Tribunal. The judge, however, did accept that it was open nonetheless to Master Mabey to complain of the general policy, and he considered that complaint on its merits and rejected it.
3. The point is really a very short one. The local education authority has published a document giving guidance on the way in which it and those under its control shall perform statutory assessments under the 1996 Educational Act and the associated Code of Practice. I have read this document, both when the matter originally came before me on paper and also in preparation for this renewed application. The judge had also read it with care. It seems to me, as it seemed to him, that it was a sensible and pragmatic statement of local authority policy that was open to the local authority both within the somewhat broad guidance given by the statute and also the somewhat more detailed guidance to be found in the Code of Practice.
4. In his submissions Mr Rawlings, on behalf of Mr Mabey, effectively takes issue with only one aspect of it. That can be encapsulated in one sentence, although it is fair to say that the language of that sentence appears elsewhere in the document, in these terms:

"It is only when a child's needs are so lifelong, complex and severe, calling for special educational provision to be made, that we will consider statutory assessment."

5. That, it is said, is inconsistent both with the criteria contained in the Code of Practice and with the statutory guidance on two grounds: first, because it refers to "lifelong" difficulties; and, second, because it uses the word "severe" when the statutory term is "significant".
6. Whether, in truth, that guidance imposed an unlawfully limited fetter upon the local authority was, and is, something to be determined by common sense construction. That is what the judge did in paragraph 12 of his judgment. He did not accept that "lifelong" could seriously be taken as meaning, and would seriously be taken as meaning, "persisting throughout the child's life", which of course is the literal meaning of the word. Mr Rawlings in his submissions to me said that indeed that was what the word meant. But looked at in its context, it cannot here mean that or have that implication. It would plainly be inappropriate to introduce a criterion in the literal meaning of this word when one was considering the disabilities or difficulties that the child had up to, but not after, the age at which he ceased to be subject to full-time education. The judge took the commonsense view that "lifelong" was here to be seen as being contrasted with short-term or transitory, and in my judgement not only was that construction open to him, it was plainly right.
7. So far as severity is concerned, again the judge thought, and I agree, that that was not imposing a more stringent criterion than that to be found in the statute or Code of Practice, bearing in mind that the whole structure of the special educational needs assessment process depends upon a considerable degree of flexibility and judgement of the local education authority in considering individual cases; and depends in that context also on there being a Special Educational Needs Tribunal, which is a specialist and very well informed tribunal, which is in place to deal with cases that have not been properly handled. That is the way in which these matters need to be regulated; not through complex literal interpretation.
8. Mr Rawlings also complains that this statement unduly fetters the discretion of the local authority, because it prevents the local authority from looking at cases that fall outside the formula that the local authority has adopted. As to that, it is plain that this local authority can, indeed must, adopt a policy which it will broadly follow. There is, in my judgement, no demonstration, and certainly nothing on the facts to show, that the local authority would simply close its mind to cases if they do not fall within the very broad terms of the statement already made. This is not a case in which it can sensibly be said that the local authority has handicapped itself from performing its duty under the special educational needs provisions simply by the terms of the general guidance that it has enunciated in this statement of policy. For those reasons, therefore, I am firmly of the view that the judge was correct in law and in the commonsense approach that he brought to this case, and there is no prospect of the Court of Appeal differing from him.
9. For those reasons, therefore, which are effectively the same though set out in longer terms as I expressed on paper, I would not grant permission.
Order: Application dismissed.