England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE ADMINISTRATIVE COURT
MR JUSTICE NEWMAN

		Royal Courts of Justice Strand, London, WC2A 2LL
		Monday 20th January 2003

Lady Justice Hale:

1. This is the judgment of the court. Although given on an application for permission to appeal, it deals with a novel point which has been fully argued before us, and accordingly we direct that paragraph 6.1 of the Practice Direction (Citation of Authorities) [2001] 1 WLR 1001, which would otherwise prohibit its citation in other cases, does not apply.
2. IPSEA (the Independent Panel for Special Education Advice) is a national charity which provides advice and support to parents of children with special educational needs, among other things in bringing appeals before the Special Educational Needs Tribunal ("SENT"). They wish to challenge the legality of three paragraphs in the "SEN Toolkit", non-statutory guidance issued by the Secretary of State to those working in this field. On 26 March 2002, Newman J refused them permission to apply for judicial review. This is their application for permission to appeal against that refusal, adjourned for oral hearing by order of Laws LJ. The hearing has followed the appeal in E v Newham London Borough Council and the Special Educational Needs Tribunal [2003] EWCA Civ 09.
3. Both concern the degree of specificity with which the special educational provision to be made for a child's special educational needs is required to be spelled out in statements of special educational needs made under s 324 of the Education Act 1996. Section 324(2) requires a statement to 'be in such form and contain such information as may be prescribed'. Section 324(3) provides that:

"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 subsection (4) . .

."

4. The contents of a statement are now prescribed by the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001, which came into force on 1 January 2002 and replaced the Education (Special Educational Needs) Regulations 1994. Both require that a statement be in a form substantially corresponding to that set out in Part B of the Schedule to the Regulations. This contains six parts. The first gives particulars of the child and of the representations, evidence and advice taken into account by the authority. The second sets out the child's special educational needs. The third, entitled 'Special Educational Provision', must 'specify' the objectives which the special educational provision for the child should aim to meet; the special educational provision which the authority consider appropriate to meet the needs specified in Part 2 and the objectives specified in Part 3; and the arrangements to be made for monitoring progress in meeting those objectives. Part 4 is concerned with the type of school, Part 5 with the child's non-educational needs, and Part 6 with the non-educational provision to be made for those needs.
5. Under section 324(5), unless the parents make their own arrangements, the local education authority ("LEA") must arrange that the special educational provision specified in the statement is made for the child in such manner as they consider appropriate, and may arrange that any non-educational provision specified in the statement is made for him. Unusually for statutes dealing with the provision of public services, therefore, this regime gives the individual child, through his parents, an enforceable right to the special educational provision laid down in the statement. Not surprisingly, parents and those advising them are concerned that statements should be as specific as possible about what is to be provided. Underlying that concern is the fear that statements will be drafted more with an eye to the resources available than to the needs of the particular child. As Mr John Wright, Chief Executive of IPSEA, states:

"In IPSEA's experience, vaguely written Statements are at the root of many of the situations which cause parents to seek advice. For example:

* The major and most common problem facing parents whose children have vaguely worded Statements is that no particular level of provision is guaranteed. Thus 'regular speech therapy' is virtually meaningless: Christmas dinner is regular; so is Halley's comet. Many parents contact IPSEA for advice when their statemented child has his or her provision reduced. There is little, legally, we can advise them to do unless the provision in the Statement is specified and quantified. Without clear and unambiguous quantification (e.g. in terms of number of hours or sessions a week) children lack the legal entitlement to provision which the law intended them to have . . . "

6. To meet this concern, the Code of Practice issued under section 313 of the Act states that the second subsection of Part 3 of the Statement should set out all the special educational provision that the LEA consider appropriate for all the learning difficulties identified in Part 2 and further:

"The provisions set out in the subsection should normally be specific, detailed and quantified (in terms, for example, of hours of ancillary or specialist teaching support) although there will be cases where some flexibility should be retained in order to meet the changing special educational needs of the child concerned."

That guidance was originally contained in paragraph 4.28 the 1994 Code of Practice and is still contained in the current Code of Practice. In July 2000 a revised draft Code was circulated for consultation and in July 2001 a draft was placed before Parliament for approval under the Act. This sought to modify the guidance on quantification. It was withdrawn in response to the Parliamentary debate. In October 2001, a further draft was placed before and approved by Parliament. In paragraph 8.37 is repeated word for word the guidance on flexibility in paragraph 4.28 of the 1994 Code.

7. The SEN Toolkit was produced in conjunction with the new Code. It was designed to give more detailed and practical advice. Section 7 deals with Writing a Statement of Special Educational Needs. Paragraphs 25 to 42 deal with the 'Provision' section of a Statement. The applicants argue that this seeks to dilute or water down the obligation to quantify in just the way that the Secretary of State tried and failed to achieve through the proposed new Code. They take exception to three particular paragraphs.
8. Paragraph 30 states:

"LEAs are required to be specific about provision. Provision should normally be quantified, for example in terms of hours and frequency of support, but there are times when some flexibility needs to be retained either to meet the changing needs of the child or to allow for appropriate and alternative responses from within the school to reflect particular class or school arrangements. If the provision is not quantified, the detail must still be such that it is clear to parents and professionals what will be delivered and by what mechanism."

This is criticised for adding a further category of case in which it is permissible to depart from the requirement to quantify. In addition to meeting the changing needs of the child, it is argued, flexibility might be retained to reflect particular class or school arrangements. Newman J obviously saw some force in that criticism:

"I am bound to say, although I have heard no detailed argument, that if in any particular case a statement of special educational needs lacked specificity and quantification where the changing needs of the child did not require it, reliance by an LEA or the Tribunal upon this particular paragraph of the Toolkit would be likely to be of little avail."

9. Paragraph 38 of the Toolkit states:

"LEAs will always need to specify provision but they will need to consider whether there are times when it would be inappropriate to provide further detail or quantify provision when a child is placed in a special school or specially resourced provision in a mainstream school which is funded by the LEA but provided by the school. In such settings there is a wide range and availability of specialist help and facilities on site with specific support and equipment provided by the school and teaching and learning programmes that can be varied day-to-day as required by the individual pupil. Such resources can therefore be managed flexibly to meet the child's changing needs. There will be times when a particular pupil regularly requires resources additional to those generally available and these will need to be set out in more detail."

This too is criticised for seeking to promote a lack of specificity for reasons other than the changing needs of the child and in particular for drawing an impermissible distinction between children in special schools or specially resourced units and those in mainstream schools (a criticism particularly made of the statement in the case of E v Special Educational Needs Tribunal.) Newman J was not disposed to accept this criticism. The paragraph emphasised that the resources of a special school could be managed flexibly to meet the child's changing needs. Further, short of complete withdrawal of a particular provision, 'flexibility for each child at the school within the provision available at the school would seem in principle desirable as it might suit the needs of a particular child.'

10. Paragraph 39 of the Toolkit states:

"Schools and LEAs will need to make decisions about the interventions and provision appropriate to each pupil on an individual basis. This can sometimes only be done by a careful assessment of the pupil's difficulties in the school and classroom context. It may therefore sometimes be inappropriate to quantify in advance the action that might be taken in terms of how much individual tuition a pupil might need, or how many hours of in-class support may be necessary, or what size of teaching group may be most appropriate."

This again is criticised as an impermissible extension to the exceptions to the 'presumption of quantification' in the new Code. In particular, it refers to matters which clearly fall within 'staffing arrangements' which are specifically mentioned among the matters which must be 'specified' under the regulations. Before Newman J, however, it appears to have been accepted that the implementation of this paragraph might or might not give rise to a breach of the Code depending upon the needs of the child. It therefore called for no further comment.

11. Overall, Newman J was conscious that the applicants sought to make a generic attack upon non-statutory departmental guidance which might or might not lead to unlawful results in any particular case. He took the view that the guidance given in his judgment would enable the Toolkit to be used in a way which 'would serve to avoid any departure from the law in respect of any child'.
12. This has left both parties dissatisfied. The applicants have not succeeded in having the offending paragraphs of the Toolkit withdrawn. The Secretary of State, on the other hand, is left with a judgment which accepts the force of the criticism made of paragraph 30 and that the other paragraphs are capable of being applied unlawfully in a particular case. Newman J records in his conclusion that 'It emerged as common ground that the principle of flexibility was available for an LEA and a Tribunal so long as the decision not to specify or quantify was based upon an assessment that such a course was to meet the changing needs of the child.' That has not remained common ground before this court.
13. The parties disagree on three interrelated questions. The first is whether the duty to 'specify' the matters laid down in the Regulations requires that those matters be quantified unless a particular exception applies. The second is whether the only permissible exception is that laid down in the Code, that is where flexibility is required to meet the changing special educational needs of the child. The third is whether 'the changing special educational needs of the child' in the Code must be construed by reference to the definition of special educational needs in section 312(1) of the 1996 Act. This provides that a child has special educational needs 'if he has a learning difficulty which calls for special educational provision to be made for him'. By subsection (4), special educational provision is '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).' Any change, it is argued, must therefore relate to the nature or degree of the child's learning difficulties, rather than to the wider context of the interaction between those difficulties and the educational provision made for him.
14. The legal obligation of the LEA and of the SENT is to write a statement which 'specifies' the matters laid down in the Regulations. If Parliament had meant specification to mean numerical quantification no doubt it would have said so. (It is worth noting that, in contrast to the other matters referred to in the schedule, departures from the national curriculum have to be specified out 'in detail'.) However, the statement clearly has to spell out the provision appropriate to meet the particular needs of, and objectives identified for, the individual child. It must be addressed to the needs of the child rather than to the needs of the system. As Laws J (as he then was) said in L v Clarke and Somerset County Council [1998] ELR 129 'in very many cases it will not be possible to fulfil the requirement to specify the special educational provision considered appropriate to meet the child's needs, including specification of staffing arrangements and curriculum, unless hours per week are set out.'
15. It follows that any flexibility built into the statement must be there to meet the needs of the child and not the needs of the system. But the needs of the child cannot be seen in a vacuum. They may fluctuate for a wide variety of reasons. Some of these will be related to the child's own state of fitness or health. Some of these will be related to the interaction between the child and his environment. It is, of course, possible to diagnose his learning difficulties without reference to the provision being made to cater for them. But it is not always possible to prescribe that provision without taking into account the context. The particular facts of E v Newham London Borough Council and the Special Educational Needs Tribunal provide a good illustration of such a case. Furthermore, a child may flourish in one setting within a particular peer group and with particular teachers, therapists or assistants. Exactly the same numerical input but in a different peer group or from different people may be actively damaging.
16. If that is the sense in which 'the changing needs of the child' is understood, then there is no inconsistency between the Code and the Toolkit. Read as a whole, the Toolkit demonstrates a sensible and sensitive understanding of the fluctuating needs of the child. The Code is policy guidance for local education authorities. It does not have to be read as if the statutory definitions were incorporated by reference.
17. Mere inconsistency between the Toolkit and the Code would not without more render the Toolkit unlawful. But read in that way, there is also no inconsistency between the statutory provisions and the Code. The Code requires precision as the general rule, but provides for flexibility where this will best meet the needs of the child. In our view, as expressed in E v Newham London Borough Council and the Special Educational Needs Tribunal, that is what is contemplated by the obligation to specify the provision to be made for him. It remains the case that vague statements, which do not specify provision appropriate to the identified special needs of the child, will not comply with the law.
18. For those reasons, we refuse permission to appeal.

Order: Appeal dismissed; no order as to costs.

(Order does not form part of the approved judgment)