England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE LAWS: This is a statutory appeal brought under the provisions of the Tribunals and Inquiries Act 1992, against a decision of the Special Educational Needs Tribunal given on 3rd November 1997. It concerns a child, NC, who is the subject of a statutory statement maintained under Part IV of the Education Act 1996 by the first Respondent to this appeal, the Buckinghamshire County Council. NC parents appealed against the contents of the statement under section 326 of the Education Act 1996. Part IV of the statement had named a school called Wye Valley School as being appropriate for NC. The parents desired that to be amended to name Stanbridge Earls School, which is an independent school.

2. The relevant facts are stated in the Tribunal's decision, where their findings which gives rise to the point of law argued on this appeal are also, of course, set out. It is convenient to read, in effect, the whole of the decision:

3. The primary issue canvassed before me was whether, on an appeal such as this, the Special Educational Needs Tribunal was obliged by section 9 of the Education Act 1996 to have regard to parental choice. That section reads as follows:

4. The section makes no reference to the Tribunal. But I should say at once that if, in the fulfilment of their functions under Part IV of the 1996 Act, the Local Education Authority must pay attention to section 9, then in my judgment so should the Special Educational Needs Tribunal on a section 326 appeal. Section 326 clearly provides for an appeal on the merits of the statement made by the Local Education Authority. Section 326(3) is in these terms:

5. Within the limits of this provision (and of section 326(4) to which I will come) the Tribunal stands in the shoes of the Local Education Authority. What is a relevant factor for the Local Education Authority is a relevant factor for the Tribunal.

6. Mr Bowen for the Appellants submits that the Tribunal was wrong to state, in paragraph (e) of their reasons, that "Schedule 27 clearly limits the issue of parental preference to maintained, grant-maintained or grant- maintained special schools". This, he says, is a holding, in effect, that section 9 was excluded from the Tribunal's consideration.

7. It is convenient to turn at once to Schedule 27. Paragraph 3(1) of that Schedule provides:

8. Both counsel were armed with a considerable body of authority, but, as I understand it, there is no case which addresses in terms the relationship between section 9 and Schedule 27, paragraph 3. Mr Oldham for the first Respondent made this submission in his skeleton argument:

9. Mr Oldham referred in the skeleton to the unreported decision of Moses J in Burridge v London Borough of Harrow (transcript, 9th December 1997), but the learned Judge in that case had no occasion to engage with the impact of section 9. He held (see page 7A of the transcript) that there exists a separate statutory code in relation to children who have no special educational needs, and referred in that context to section 411 of the Education Act 1996, which I need not set out. Clearly Schedule 27, paragraph 3 and section 411 constitutes separate "codes", if that is the appropriate word, for giving effect to parental choice in cases of children respectively subject to statements and not so subject. But, in my judgment, none of this casts determinative light on the scope or ambit of section 9.

10. In my view, even in a case where Schedule 27, paragraph 3 has no application because the parents' preference is for an independent school, section 9 raises a relevant factor for the Local Education Authority's consideration in the performance of their duties under Part IV of the 1996 Act. Mr Oldham submitted that so to hold would be to render Schedule 27, paragraph 3 otiose: it would enable the child's parents to "trump", as he put it, the schedule with section 9 in any case where the schedule did not apply. But this ignores a critical difference between section 9 and Schedule 27. The former requires the Local Education Authority only to have regard to the principle of parental choice. But Schedule 27, paragraph 3 requires the Local Education Authority to give effect to parental choice, subject, of course, to the important qualifications there stated. The difference is very important. Schedule 27, paragraph 3 (and, for that matter, section 411) has teeth which section 9 lacks.

11. There is, I think, no escape from the wide opening words of section 9:

12. Mr Oldham's argument would read in a qualification for which Parliament has not provided, namely that section 9 only bites where there are further provisions specifically giving effect to it, such as are to be found in section 411 and Schedule 27, paragraph 3. I see no warrant for imposing any such implied limitation upon the words Parliament has chosen to use. Mr Oldham, however, supported his argument that section 9 is to be limited in this way by reference to the decision of the Court of Appeal in Watt v Kesteven County Council [1955] 1 QB 408. That case concerned the original predecessor of section 9, namely section 76 of the Education Act 1944, which I need not set out. It was also concerned with section 8 of the 1944 Act, which imposed a duty on Local Education Authorities to secure sufficient availability for their area of schools providing secondary education. The Plaintiff in that case took proceedings because the relevant Local Education Authority were not prepared to pay the full tuition fees at the Roman Catholic School where he chose to send his sons. He relied on section 76. Lord Justice Denning (as he then was) said this at page 423 to 424:

13. However, this decision is not authority for the proposition, for which Mr Oldham contends, that section 9 is altogether disapplied save where there is some specific provision elsewhere in the Education Acts which gives focussed, or executive, effect to the principle of parental choice. In Watt the Court of Appeal was dealing with an argument that the then section 76 required the Local Education Authority to give effect to parental choice. Clearly the section did not do so; nor does section 9 and Mr Bowen for the Appellants does not contend the contrary.

14. Mr Oldham next submitted that section 9 is, as he put it, "not justiciable" before the Special Educational Needs Tribunal. This is a confusing expression. If he meant (which, in fairness, I do not think he did) that even if the Local Education Authority had to have section 9 in mind in a case of a statemented child, still the Tribunal did not, I have already rejected any such notion. I understood Mr Oldham to mean, however, that even if the Tribunal (or the Local Education Authority) ought to have considered section 9 but avowedly ignored it, this court would have no jurisdiction to interfere. On the face of, this is an extraordinary proposition: it assumes the existence of a public law error by the Local Education Authority or Tribunal, but asserts that this court, in the exercise of what is a statutory form of judicial review, has no power to correct it.

15. Mr Oldham founded on Cummings v Birkenhead Corporation [1972] 1 Ch 12. That case again concerned sections 8 and 76 of the Act of 1944. A group of parents issued a writ, claiming (in effect) that their choice of schools for their children had been improperly denied, and that the Local Education Authority were in breach of their duties under sections 8 and 76. Their claim was dismissed on the merits, but Mr Oldham cites the case because of what was said by Lord Denning at page 36C-D:

16. Indeed, those provisions provided, as the Master of the Rolls said, for application to be made to the Minister who would determine any complaints put before him within the sections.

17. Mr Oldham's submission must be that sections 68 and 99, now replicated in section 496 and section 497 of the 1996 Act, provide an exclusive remedy in any case where an aggrieved person claims that section 9 has not been taken into account in any educational decision. He refers also to a passage towards the close of Lord Denning's judgment in Watt at page 425:

18. In my judgment, this argument is misconceived. The Court of Appeal in Cummings was dealing with a case where, as it held, Parliament had provided a statutory remedy, a remedy which in that case the Plaintiff had not sought to invoke. There might nowadays well be arguments to the effect that section 496 and section 497 do not oust the judicial review court's jurisdiction, and it is to be noted that Cummings and Watt were writ actions decided before the reforms of Ord. 53 in 1977 and the growth of judicial review since. But it is unnecessary to go into such questions. The position today is that at least a complainant must first avail himself of any appropriate remedy made available by statute. Judicial review is a remedy of last resort. However, none of this can assist Mr Oldham in the present case: the Appellants here availed themselves of their statutory remedies, by appeal to the Tribunal under section 326 and now to this court under the Tribunals and Inquiries Act. They are within the statutory system which Parliament has provided. It cannot possibly be argued that in respect of one aspect of their case (section 9), they should have gone off to the Minister. They have availed themselves of the proper appeal route open to them.

19. In the result, none of Mr Oldham's submissions deflects me from my conclusion that section 9 provides a relevant factor for the Local Education Authority's consideration under Part IV of the Act and for the Tribunal to consider on appeal. This result, I think, is supported by the terms of section 326(4), which are as follows:

20. Section 326(4)(b) thus specifically contemplates a case where a parent has proposed a particular school for inclusion in a Part IV statement. It seems to me that in such a case the Tribunal is by the statute invited to consider the parents' views. It does not have to specify any particular school (nor, on authority, does the Local Education Authority under section 344(b)). But given that the Tribunal may specify a school proposed by the parent, it seems to me simply quixotic to suppose that it must then (in a case to which Schedule 27, paragraph 3 does not apply, a case that is, of course, covered by section 326(4)(a)) ignore the parents' preferences.

21. Accordingly, I uphold Mr Bowen's submission, that section 9 fell to be considered here untrammelled by Schedule 27, paragraph 3, and that in taking the contrary view the Tribunal fell into error. This is, I think, supported by the dictum of Dyson J in White and others v London Borough

22. As I understand it, the Court of Appeal in that case (transcript, 12th February 1998: as yet, unreported) did not dissent from this view expressed by Dyson J.

23. It is important to make clear what I am not deciding. This is highly material to the question whether, notwithstanding the Tribunal's error of law, this decision should be set aside. These propositions are, as it seems to me, central:

24. This brings me to Mr Oldham's second argument which is very important. It is that the Tribunal did (despite their finding about Schedule 27, paragraph 3 in section 9) consider the parents' choice, and that in any event the error of law which I have found present in their decision could have made no difference to the result. I should note the terms of Ord. 55, r.7(7):

25. I conceive this to be in broad terms, conferring at least an analogue of the discretion that arises in the judicial review jurisdiction, where the court has power to refuse relief even though an error law is made out.

26. Mr Oldham points to the circumstance that the Tribunal in fact considered both schools in its determination. His submission was that once they had found Wye Valley School to be suitable to NC's needs they need have gone no further.

27. Certainly, they considered both schools. In my judgment, they were obliged to do so, Stanbridge Earls having been proposed by the parents.

28. The real question is this: if they had correctly applied the law concerning section 9, might it have made a difference to the result? Mr Oldham submits that whereas there was an unequivocal finding as to Wye Valley's suitability (see paragraph (c) of the reasons), the Tribunal's view on Stanbridge Earls were much more guarded. It is convenient just to notice again what is said in paragraph (d) and part of (f) in the reasons:

29. I interpolate: that was undoubtedly the right question to ask.

30. Might the Tribunal have resolved the matter differently if they had correctly understood section 9? I think not . Mr Bowen submitted that if they had got the law right they would have carried out a balancing exercise between the two schools, whereas, as it was, "their intellectual decision-making process was effectively at an end once they had found Wye Valley to be suitable". Moreover he argued that, in order to uphold Wye Valley in face of the parents' choice, the Tribunal would have had to make an unequivocal finding that Stanbridge Earls was not suitable.

31. I do not accept Mr Bowen's submissions. The pressure of parental choice, in a case where it is invoked by virtue only of section 9, does not imply that the parents' choice is to be rejected only if the school nominated by them is categorically unsuitable. As I have said, the overriding consideration under Part IV is the fulfilment of the child's special educational needs. Parental choice is in the back seat.

32. Here, the Tribunal's conclusion is, in effect, that NC's needs require that he be returned to mainstream schooling, and that meant a placement at Wye Valley. I cannot see that that conclusion might have in the least been displaced if the Tribunal had expressly recognised the need to have regard to the parents' preference, of which, plainly, they were very well aware.

33. For these reasons, the appeal is dismissed.

34. MR OLDHAM: My Lord, I am grateful for the very closely reasoned judgment your Lordship gave. I am instructed to apply for the costs in the appeal. This is a case, I understand, where my learned friends are not legally aided.

35. MR JUSTICE LAWS: You have lost the point of principle and you have won on the facts.

36. MR OLDHAM: My Lord, that is right, but I have won. The normal rule is that when one wins, for whatever reason, one is entitled to say: 'We have won'.

37. MR JUSTICE LAWS: That is the normal practice rather than the rule, I think.

38. MR OLDHAM: That is as I accept.

39. MR BOWEN: Before I get to costs, my Lord, can I just make a preliminary point? I am slightly (and it may well be that I am in error here) discomforted by the way matters have developed, because you will remember at the beginning of the hearing it was accepted (and I am not seeking to fault my opponent at all) and it was made clear that the last part of my argument (and you will remember my skeleton dealing with suitability and the various points I made on the suitability and whether or not the finding had been made as to the inappropriateness of Stanbridge Earls) all fell away, and it then became known as the "proviso argument". I did not, therefore, seek to argue the point on the supplementary notice. I do not know whether you zoned in on that at all, my Lord.

40. MR JUSTICE LAWS: Mr Bowen, my apprehension was that it was made entirely clear to me that that latter part of the argument was no longer in play, for what I had to consider was a point of principle under section 9 and, if I was in your favour on that, whether nevertheless the decision should not be quashed because of what became called the proviso point. It was not suggested to me that the so-called proviso argument required all your latter argument to be reintroduced. That is certainly not the impression I had.

41. MR BOWEN: It may be something that I need to talk to Mr Oldham about. Clearly, I have not had an opportunity to talk to Mr Oldham properly about this.

42. MR JUSTICE LAWS: You have just heard the judgment.

43. MR BOWEN: We did have a very short interchange beforehand, when I observed that, perhaps, the concession that was made has led to some difficulty because, in fact, the long point that I did have there on paper and would have emphasised orally, I did not make because of the way the argument developed. Even if that is right, I do not see now how it can be done save for me now to make an application for leave to appeal.

44. Whether or not that point would itself engage on any leave argument, I do not know. Would you like me to address you on costs initially?

45. MR JUSTICE LAWS: That is all, at the moment, I am really dealing with.

46. MR BOWEN: My Lord, on costs, I say this: we clearly won on the legal point. The vast majority of the costs in this case, if not all the costs in this case, have been engaged because of the section 9 point. There is no evidence. A bundle was put together; it was simply replicated by my solicitors through the photocopier. All papers were before the Tribunal.

47. There is some guidance from Collins J in Staffordshire v J & J that it should always be available at court but it should not be photostated several times. That is the only costs that could be said to be unnecessarily incurred. Everything else, all of the authorities, all of the arguments were on the law and I won that. I should, therefore, surely have my costs.

48. MR JUSTICE LAWS: You are suggesting that you should have your costs?

49. MR BOWEN: My Lord, I know that costs should follow the event. Clearly the practical result is not what the parents wanted at all, but the argument ----

50. MR JUSTICE LAWS: I am very well aware of that.

51. MR BOWEN: -- but the argument on the law, which was really, until fairly recently this case was all about, we have won on.

52. MR JUSTICE LAWS: That might be a reason to say that each side should bear its own costs.

53. MR BOWEN: My Lord, this has occurred on numerous occasions in this type and what often happens is that judges apportion the costs. It is said, on the one hand, that maybe it should go off for taxation for the Taxing Master to work out exactly what ----

54. MR JUSTICE LAWS: That just eats up more money.

55. MR BOWEN: I agree. So it might be sensible, my Lord, for you to take a view on what proportion was under the section 9, Schedule 27 argument and what proportion was down to the factual argument.

56. MR JUSTICE LAWS: I am not so sure about that.

57. MR BOWEN: My Lord, and I would say that, at least, three-quarters of the costs should be down to the legal argument. I do not know whether Mr Oldham wants to reply, but I have something also to say on leave to appeal, my Lord.

58. MR JUSTICE LAWS: We will deal with that separately.

59. MR OLDHAM: My Lord, the case was heard before your Lordship so that Mr Bowen could attack the decision and so that I could defend it. That, I have done in the judgment successfully, for whatever reason. Costs related to that defence for whatever reason.

60. MR JUSTICE LAWS: As a matter of discretion, I will make no Order as to the costs of this appeal.

61. MR BOWEN: My Lord, clearly your judgment is extremely detailed on the section 9 point. I do not seek leave to appeal any of that. The judgment reflects precisely what we said, and I do not take issue with any of it.

62. Where, however, I do take substantial issue is that the test, expanded by Sedley J in the ex parte C case, is that all that the Tribunal have to do and all that the Local Education Authority have do is to provide a school that is good enough. The findings, and I as understand your own analysis of the Tribunal's findings, do not say that Stanbridge Earls is not good enough. They simply express some concern on certain points: the residential point and the further education point; the further education point being the point that I was describing as an irrelevant consideration by way of the supplementary notice, which I did not argue because of the way the case proceeded.

63. As I understand your Lordship's judgment, it would appear that you are taking issue with that basic question. Because if that question is right, the question for the Tribunal was: having decided that the Local Education Authority school was suitable and Stanbridge Earls was good enough but they had problems, there should then have been the two factors being brought into play which I described earlier on?

64. MR JUSTICE LAWS: I think what you are submitting (and if this is what you are submitting, I will agree with you) that if the Local Education Authority decided that both schools were suitable (you used the expression "good enough", which appears nowhere in the statute), then it may be that parental choice would come into play and section 9 would have made a difference. Is that it?

65. MR JUSTICE LAWS: That is essentially it.

66. MR BOWEN: It is. I think the word "suitable" is also not in the statute. The word "appropriate" comes up in the code. I am not trying to be ----

67. MR JUSTICE LAWS: As it happens, the word "appropriate" is, I think ----

68. MR BOWEN: "Appropriate" is in the code. In fact, it is dealt with by Sedley J.

69. MR JUSTICE LAWS: Whether "appropriate" or "suitable", if there is (to use a crude expression which I may have used in the judgment) a level playing field, then something has to weigh one way or the other and it may be parental choice -- you would say.

70. MR BOWEN: Precisely, and I say that once you get past the stage of suitability, appropriateness or being good enough, then it does not matter that, in motoring terms, the Local Education Authority have suggested a BMW, but a Ford Mondeo is good enough and the parents want something between a Mondeo and a BMW.

71. MR JUSTICE LAWS: You have to have a finding that both are suitable.

72. MR BOWEN: Precisely, and I say, as a matter of fact, I plainly have that, and you have not said otherwise in your judgment. The logical result must be that because you said it would not have made a difference, the Tribunal asked themselves exactly the right question. I say plainly they did not. It is in many ways a slightly different rerun of the argument in front of Sedley J. You will see there that he gave leave to appeal because he accepted there -- and can I just take you to it very briefly? It is at tab 9, page 79. You can see at the very last line that "... the first Respondent to have leave to appeal". I referred to it just to show your Lordship that leave was given to the local authority.

73. MR JUSTICE LAWS: You really cannot cite another first instance Judge's legal authority for deciding whether to give leave to appeal or not.

74. MR BOWEN: No, but what I can say, my Lord, is that in Sedley J's judgment the question of ex parte H Utopia, precisely what questions should be asked by the Tribunal, was one of great significance, and on that basis plus several others he gave leave to appeal. That point is now directly in issue. Ironically we started with a section 9 argument which has been developed very fully (and I say the right answer has been reached), but by a strange turn of circumstances we are now dealing with a different question, which is whether or not, if this Tribunal found that it was good enough, which I said it did and nobody has disagreed with that, as I understand it and as understand the judgment, then ----

75. MR JUSTICE LAWS: You say that, but I have placed emphasis, have I not, on that section towards the end of paragraph (f) in the Tribunal's reasons?

76. MR BOWEN: You have, my Lord, but it could still very easily be good enough. But they still think (and this is where they went wrong) that Wye Valley School was better. That does not matter, as long as Stanbridge Earls is good enough. My Lord, that is my argument.

77. MR JUSTICE LAWS: Yes, Mr Oldham. What do you want to say about leave to appeal?

78. MR OLDHAM: Would your Lordship just give me a few moments? Your Lordship will realise that I have two interests in this point: (i) to protect the Special Educational Needs Tribunal's decision in a particular case and (ii) for future reference, to have any issue under section 9 sorted out if the matter were to go further in our favour. Because I have competing interests, I have no particular instructions one way or the other, so I will say that I neither resist nor support the application.

79. MR JUSTICE LAWS: I think, Mr Bowen, you must ask the Court of Appeal. I am very grateful to counsel for their arguments.