ON APPEAL FROM THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER (Judge Jacobs)
Ref No: S30942009;  UKUT 74 (AAC)
Strand, London, WC2A 2LL
B e f o r e :
(Vice President of the Court of Appeal, Civil Division)
Lord Justice Moses
Mrs Justice Baron
| Essex County Council
|- and -
|Mr Antony John Williams
Mr David Wolfe (instructed by Levenes) for the Respondent
Hearing date : 19 October 2011
Crown Copyright ©
Mrs Justice Baron DBE :
The Factual Matrix
"....Some pupils with statements of special educational needs will need to remain in school after the age of 16. LEA's remain responsible for such pupils until they are 19. There will be occasions where the natural completion of an academic year or completion of a particular course would take pupils with a statement beyond their 19th birthday. The Learning and Skills Council, when it becomes responsible for funding sixth form provision, will, as a condition of funding, require LEA's in those situations to maintain statements until the end of the academic year in which their 19th birthday falls" [emphasis added].
The Tribunal proceedings
"MW is no longer a child, as defined by s312(5) of the Education Act 1996. Thus this is not a case in which this Tribunal has jurisdiction. The Appeal should be struck out".
"31. A literal reading of the legislation might suggest that someone aged 19 was no longer entitled to a Statement. That was my initial reaction on studying the papers for this appeal. The duties in respect of a statement are in respect of a child for whom the local education authority is responsible. The definition of child under s312(5) is inclusive, not exhaustive. That means that "child" bears the meaning that it would otherwise bear plus the extended meaning under the definition [emphasis added]. In the Education Act, that means that "child" has the meaning in section 579 extended by section 312(5). Putting them together produces this result: a child is someone "who is not over compulsory school age" or "who has not attained the age of 19 and is a registered pupil at a school." A person who is aged 19 or more does not satisfy either element of that definition. Accordingly, the local education authority was no longer under a duty to maintain that statement. Paragraph 9(2) of Schedule 27 applied with the result that paragraph 9(1) relieved the local education authority of the duties under paragraph 11. Having reached the age of 19, Maria's Statement lapsed.
32. Having studied the authorities and considered the arguments at the oral hearing, the essential steps in that reasoning are wrong".
"36. ……. The issue that arises is: was it no longer necessary to maintain her statement? I accept Mr Wolfe's (for the Parents) submissions that it is too simple to give the answer no because she has now attained 19. The issue is whether the statement is still necessary despite her age. Her age is relevant but not decisive. The reason is that stages of education are not fixed by rigid cut off dates. Children do not have to move from primary to secondary education as soon as, and only when, they attain a particular age. Secondary education is defined by section 2(2)(a) (ii) to include education suitable for children "who have attained the age of 10 years and six month and whom it is expedient to educate together with senior pupils". Nor does secondary education necessarily end at a particular age. Mr Wolfe also referred me to Section 2(5):
"(5) For the purposes of this Act education provided for persons who have attained the age of 19 is further education but not secondary education: but where a person –
(a) has begun a particular course of secondary education before attaining the age of 18, and
(b) continues to attend that course,
The education does not cease to be secondary education by reason of his having attained the age of 19"
In summary Judge Jacobs held that:
a) a literal reading of the provisions might suggest that someone over 19 years was no longer entitled to a statement (indeed that had been his initial reaction to the case);
b) having studied the authorities and arguments, he considered the essential steps in that reasoning were wrong. As such, provided a statement of SEN had commenced before the child was 19 it did not automatically lapse at 19 years.
c) the duty to maintain a statement was "not tied to the person remaining a child for which the LEA is responsible" pursuant to the strict definition within Part IV of the Act, and a cut off at 19 years was undermined by the fact in this case that, in reality, provision had been maintained not only to the end of the school year following the age 19 years but beyond.
"8. In the light of the decision in R(B) v Islington (see below), it seems clear to us that MW's Statement has lapsed and that we no longer have jurisdiction to adjudicate on this appeal. We were clear, even before the Islington decision that the UT decision in this case did no more than raise the possibility that, in certain circumstances, a statement might extend beyond a person's 19th birthday for a limited period and that the first Tribunal should not have dismissed the appeal for want of jurisdiction , but it should have heard the evidence and determined both the jurisdictional and, if necessary factual merits at that stage. The UT decision could not have been, when analysed properly, a precedent for arguing that statements automatically extend beyond the age of 19 until a LA gives notice of ceasing to maintain.
9. For the sake of completeness, it is right to record that on adjudicating on the factual merits of this case – which we interpret from the UT decision to mean the factual matrix in respect of both the legal issues in as well as the general merits of the appeal – would, in any event, have led us to dismiss the appeal (a) for being outside our jurisdiction given that, at the time of the hearing Maria was aged 20 (and she turned twenty one prior to the close of submissions) and no proper interpretation of the Education Act 1996 could conceivably extend the definition of "child" in Part IV to a person who has attained the age of twenty: and (b) on the factual merits as, in reality, Maria was not actually attending the school but the school was acting as a broker in arranging a package of educational facilities, which, interestingly, included a day per week at the college, proposed by the LA and opposed by her parents."
The Statutory Scheme
i) Section 2(2) sets out the definition of secondary education
""In this Act "secondary education" means-
(a) full time education suitable to the requirements of pupils of compulsory school age who are either –
a) senior pupils, or
b) junior pupils who have attained the age of 10 years and six months and whom it is expedient to educate together with senior pupils of compulsory school age; and
(b) (subject to subsection (5)) full time education suitable to the requirements of pupils who are over compulsory school age but under the age 19 which is provided at a school at whish education within paragraph (a) is also provided."
ii) Section 3 defines a pupil as being:
"(1) In this Act "pupil" means a person for whom education is being provided at a school, other than-
i. A person who has attained the age of 19 for whom further education is being provided…..
"(2) In this Act –
"junior pupil" means a child who has not attained the age of 12; and
"senior pupil" means a person who has attained the age of 12 but not the age of 19 [emphasis added]."
iii) Section 2(5) of the Act (set out in full above) contains the provision which extends the meaning of secondary education to enable those who were senior pupils and who have attained 19 years or are over 19 years to finish/complete the course upon which they were embarked prior to reaching that age.
iv) Section 15ZA provides that LEA must provide education for all children in their area who are over compulsory school age but under 19 and, in particular:
"(1) A local authority in England must secure that enough suitable education and training to meet the reasonable needs of-
(a) persons in their area who are over compulsory school age but under 19
(b) persons in their area who are aged 19 or over but under 25 and are subject to learning difficulty assessment."
v) Section 579 which details matters of "General Interpretation" defines "child" as follows:
"In this Act, unless the context otherwise requires:
"child means a person who is not over compulsory school age"
Special Educational Needs
Section 321(1) imposes a duty on the LEA such that-
"A local authority shall exercise their powers with a view to securing that, of the children for whom they are responsible, they identify those to whom subsection (2) below applies."
Section 321(2) provides:
"This subsection applies to a child if-
ii. he has special educational needs, and
iii. it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for."
Section 321(3) provides:
"(3) For the purposes of this Part a local education authority are responsible for a child if he is in their area and –
"(a) he is a registered pupil at a maintained school or maintained nursery school,"
(b) education is provided for him at a school which is not a maintained school or maintained nursery school but is so provided at the expense of the authority,
(c) he does not come within paragraph (a) or (b) above but is a registered pupil at a school and has been brought to the authority's attention as having (or probably having) special educational needs, or
(d) he is not a registered pupil at a school but is not under the age of two or over compulsory school age and has been brought to their attention as having (or probably having) special educational needs."
Section 312 (5) contains an extension to the definition of 'child' for the purposes of Part IV:
"(5) In this part
'child' includes any person who has not attained the age of 19 and is a registered pupil at a school;…"
"(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 parents in pursuance of Schedule 27, 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 [emphasis added] a statement of his special educational needs."
"(1) A local education authority may not…cease to maintain, a statement except in accordance with paragraph …11."
"(1) A local education authority may cease to maintain a statement only if it is no longer necessary to maintain it".
(2) Where the local education authority determine to cease to maintain a statement –
(b) the parent of a child may appeal to the Tribunal against the determination."
"(2) Subparagraph (1) does not apply where the local authority –
(a) cease to maintain a statement for a child who has ceased to be a child for whom they are responsible. [emphasis added]"
The Parties' cases
i. Judge Jacobs was correct in his analysis with the result that there can be no sudden and/or arbitrary jurisdictional cut off a Statement of SEN, per Paragraph 9(2) of Schedule 27, in circumstances where a pupil (like MW) has commenced a course under the age of 19 years and is continuing to undertake those course studies.
ii. Accordingly, a statement of SEN has to subsist until a positive decision has been made by the local authority to cease to maintain it with the focus being on the particular educational needs of the person in question. The Local Authority's decision is then susceptible to appeal if the parents disagree with it.
iii. In support of his submissions Mr Wolfe relies upon the Court of Appeal decision in Hill v Bedfordshire 2008 EWCA (Civ) 661 ("Hill"). He submits in that case the Court rejected the notion that statements lapse automatically with the consequence that a determination is always required. He points to the passage of Lord Justice Lawrence Collins (as he then was) in paragraph 109 (see below) where his Lordship stated that the Statute does not use the language of "lapse" and concluded that a LA should determine whether or not "to cease to maintain a statement". He noted that His Lordship accepted that in certain cases a local authority was not bound to give notice of its determination if paragraph 9(2) applies. But, that apart, the Court found that there was no need to give paragraph 9(2) a literal interpretation with the result that paragraph 11 could apply in a case where a child of 18 years had ceased to be a registered pupil at a school where there was every reason to suppose the child may need, and ought to be given, special educational provision.
iv. In the light of this, Mr Wolfe submitted that provided that the statement of SEN had been issued whilst this child was under 19 years, it had to be maintained until it was not needed. Consequently, in MW's case the Statement of SEN should have been maintained beyond 19 years and the Local Authority were obliged to make a positive (and appealable) decision to bring her Statement of SEN to an end. Furthermore, because MW had been in secondary education prior to reaching 19 years and was undergoing a course of education, she was protected by Section 2 (5) and would remain a "registered pupil" until her course had been completed.
v. His final submission was to effect that it matters not that she is over 19 years as she remains a "child" because the effect of Section 2(5) is to trump the definitions in Sections 312(5) and 579 given that those requirements are merely inclusive and not exhaustive. Accordingly, Mr Wolfe asserts that MW will continue to remain a "child" until she completes her course whenever that might be. In logic, he accepts that a person with special educational needs may require an extended period to complete a course but Mr Wolfe submits this prospect poses little real difficulty because it is a question of fact upon which the First Tier Tribunal can adjudicate if there is a dispute.
Case Law and Critique
At paragraphs 107 and 108 Lawrence Collins LJ stated
"(107) I agree with Irwin J in Wolverhampton that the definition of "child" in section 312(5) is not exhaustive. Consequently, it is not necessary for a person to be a "registered pupil at a school" to be a "child" for the purposes of Part IV of the Act.
(108) In my Judgment paragraph 9(2) of Schedule 27 is intended to apply to the normal case where a statement ceases to have any point, because the child has left school and there is no possibility to the local authority providing special educational needs up to the age of 18 or 19. ……"
His Lordship continued in paragraph 109:
"Paragraphs 9 and 11 do not use the language of "lapse". They assume that in all cases the local authority will determine whether or not "to cease to maintain a statement". In certain cases it is not bound to give notice of its determination. There is no need to give paragraph 9(2) such a literal interpretation that paragraph 11 cannot apply to a case where a child of 16 has ceased to be registered at a school but there is every reason for a continuing belief that the child may need, and be given, special education provision later." [emphasis added].
"In my view these conclusions follow from the application of well established principles of statutory construction. The duty to make and maintain statements of special educational needs in Part IV of the 1996 Act, as laid down specifically in section324(1), is in relation to a "child". A "child" in this part of the Act includes any person who has not attained the age of 19 and is a registered pupil at a school. That definition is not exclusive, but in my view it cannot be stretched, as the claimant contends, to include a 23 or 30-year old. The identification of a specific age limit, namely 19, cannot mean that the definition of child refers both to those under the age of 19 and to those over that age. Part IV of the 1996 Act does not mean that whatever the age of a potential student the local education authority must consider whether it is necessary to maintain the statement and that there is no upper age limit for a "child" for whom statements have to be provided.
Primarily, my conclusion follows because any other interpretations would be contrary to the ordinary or every day meaning of the term "child". The law reports are littered with examples of judges coaxing from words and phrases a meaning which is not the ordinary meaning. But that is where the ordinary meaning would result in an inconvenience, injustice or absurdity as a result of its application. Despite the plethora of authorities where the ordinary meaning has not been adopted, to give words an interpretation which is not their ordinary meaning is still an exceptional, not a regular, judicial practice. For a court to adopt that course must be considered with what is found to be the Parliamentary intention. A court must be able to divine a Parliamentary intention that a word is not to have its ordinary meaning.
Here the ordinary meaning of "child" would not extend to someone who is 23 or 30 years old. Miss Butler-Cole invokes section 2(5) of the 1996 Act in support of her favoured construction. That section relates to types of education. Whatever meaning is given to the notion of "continues to attend that course" in that section, I cannot see how it can lead to a construction under which a person aged 23 or 30, or indeed of no upper age limit, would be regarded as a "child". Section 2(5) cannot have the effect of allowing a person to continue in secondary education beyond the age of 19 and of obliging a local education authority to maintain a statement of special educational needs beyond that age."
Lord Justice Moses:
Lord Justice Maurice Kay: