England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE SCOTT BAKER: This is a statutory appeal against a decision of a Special Educational Needs Tribunal made on 18 February 1998. At the Hearing I made an order under Section 39 of the Children and Young Persons Act 1933. I shall refer to the child as “J”. He was born on 12 October 1993 and suffers from language and communication difficulties as a result of autism. It is not disputed that he needs special educational provision. The issue in this appeal is whether the Tribunal was correct in concluding that the special school at Kennel Lane was the appropriate provision.

2. On 4 June 1997 the Bracknell Forest Council, the First Respondent, produced a draft statement of special needs. It mentioned that provision for “J’s” needs exceed those normally available in main stream schools and will be most appropriately arranged in a special school. The Appellants responded on 20 July 1997.

3. The final version of the statement provided that “J” should go to Kennel Lane School, Bracknell, a school for children with learning difficulties. The Appellants appealed to the Tribunal by notice dated 22 September 1997 arguing in particular:

4. This brought the response from the local authority that Kennel Lane was eminently suitable for “J” and that the Appellants approach would be an inefficient use of resources. The Appellants in turn responded with a further document reiterating their position.

5. The Tribunal’s decision, which followed a Hearing on 4 February 1998, is to be found at page 6 of the bundle. I recite the facts the Tribunal recorded. They include, inter alia:

6. The Tribunal then set out its conclusion with reasons. So far as material they are as follows:

7. The appeal was accordingly dismissed.

8. It will be seen that the Tribunal appeared to take as its starting point Section 319 of the Education Act 1996. This provides:

9. The Appellants appeal on the grounds that the Tribunal erred

10. Mr Engelman, for the Appellants, contends the essential question is whether if the Tribunal had considered these three matters it might have come to a different conclusion.

11. Mr Engelman says the Tribunal approached the problem the wrong way. It should have started by considering what special educational provision was necessary in accordance with Section 323 of the Education Act 1996. Then it should have gone on to consider Section 9 and in particular the wishes of the parents. Next it should have considered the cost of the alternative proposals and finally it should have gone on to Section 319 and decided whether the special educational provision should be made otherwise than in a school. Had it approached matters thus it might very well have reached a conclusion in favour of the Appellants.

12. Mr McCarthy, for the Respondent, argues that the central issue for the Tribunal, as is common in these cases, was to decide what special provision “J’s” ability called for. What provision was required to meet his needs? That is what underlies the statement of special educational needs provided for in Section 324. If the Tribunal did not decide that they could not take the appeal anywhere. They had to look at the decision of the LEA and decide whether to uphold it or not.

13. The Tribunal’s powers are to be found in Section 326 (3). It can dismiss the appeal or order the authority to amend the statement or to cease to maintain it. It can order the amendment of the statement if it does not think it meets the child’s needs. What it had to concentrate on this case was “J” and his needs.

14. Did the Tribunal ask itself the correct question in this case? Because if it did it matters not, it seems to me, whether specific reference was made by the Tribunal to any particular section of the Education Act 1996. Examination of the Tribunal’s decision shows in my judgment that it clearly did. It set out the pros and cons of the two types of educational provision. It is clear from the four paragraphs of its conclusion that it looked carefully at Kennel Lane and at Lovaas and it did ask itself what was the correct provision for this child. I accept Mr McCarthy’s submissions that that is an essential exercise before one goes on to Section 319. You cannot decide where to provide the provision until you have decided what that provision should be. I am unable to accept that the fact that Section 319 is mentioned in paragraph (a) of the Tribunal’s conclusions means it approached matters from the wrong end. Nor do I think a great deal can be made of the reference to what the Tribunal first considered in that paragraph. I am unable to conclude that the Tribunal came to no conclusion on the central issue. It clearly did.

15. Next, Mr Engelman contends the Tribunal did not consider parental preference in particular Section 9 of the Act. He relies on Laws J in R -v- Buckinghamshire County Council ex parte Catchpole unreported CO/4230/97 20 May 1998. He said at page 15E:

16. Accordingly, I uphold Mr Bowen’s submission that Section 9 failed to be considered here untrammelled by Schedule 27, paragraph 3 and that in taking the contrary view the Tribunal fell into error.”

17. Had the parents' preference been considered, argues Mr Engelman, which it was not, it might have made a difference. To this Mr McCarthy answers that there is no reference to either side having put parental preference in the balance before the Tribunal, and it is therefore difficult to raise it as an error of law on an appeal. Perhaps more significantly, Mr McCarthy contends that it would not have helped the Tribunal to make a decision for “J’s” education anyway. Section 9 goes no further than to state a broad general principle. The 1996 Act makes provision for certain situations where parental preference must be given some prominence. An example is paragraph 3 of schedule 27, and see also Section 326 (4). But this case is not dealing with such a situation. Mr Engelman cannot take matters further along this road than the generality of Section 9. Mr McCarthy relies on Laws J in Catchpole at page 18d where he said:

18. As Laws J pointed out at page 10D, schedule 27 paragraph 3 has teeth which section 9 lacks. Section 9 would in my view only come into play in the event of equal alternatives for “J’s” needs.

19. Next Mr Engelman contended that Section 316 bites on the issue of parental choice because the Applicants want “J” to go into mainstream schooling and the only issue is when. The argument, as I understand it, runs thus: Section 316 provides that children with special needs should normally be educated in mainstream schools and the Applicants plans for “J” are the best way of achieving this, not now but in the years ahead. I accept Mr McCarthy’s argument that Section 316 is dealing with the present and not the future. It is not relevant in this case which is why the Tribunal did not refer to it. As Mr McCarthy observed, this point was raised in the original notice of motion, abandoned by amendment and finally resurrected in argument. In my judgment there is nothing in it.

20. On the question of cost I was referred to R - v -East Sussex County Council ex parte Tandy [1998] 2WLR 884. That was a case concerning Section 298 of the Education Act 1993 (now Section 19 of the 1996 Act). It was held by the House of Lords that “suitable education” within the meaning of that section connoted a standard to be determined purely by educational considerations and that financial resources was not relevant. The authority was not permitted to avoid performing a statutory duty on the ground that it preferred to use its available resources for other purposes. However Lord Browne-Wilkinson did say at page 890A:

21. Mr McCarthy points out that in the present case there was no finding that the two alternative options for “J” were equally appropriate or suitable. I accept his submission that in these circumstances the cost issue was irrelevant.

22. Finally there is an issue whether the Tribunal’s reasons are intelligible. In my judgment they clearly are. They fall within the guidelines spelt out by Latham J in “S” (A minor) -v- Special Educational Needs Tribunal [1995] 1 WLR 1627 at 1636D . They were in short and succinct form and dealt with the issues raised intelligibly.

23. I reject the Appellants argument that the Tribunal never made a decision under Section 324 as to the special educational provision that was required. It did not merely make a decision under Section 319. The Tribunal did not misdirect itself. It could not realistically have come to any other conclusion on the findings that it made, which are, in my judgment unassailable. Accordingly the appeal fails.

24. MR JUSTICE SCOTT BAKER: For the reasons given in the judgment which has been handed down, this appeal fails and therefore can be dismissed. Are there any corrections to be made?

25. MISS BURNHAM: My Lord, there are no corrections so far as I am aware. I act for the Respondent. I make an application for our costs in this matter.

26. MR ENGELMAN: There is no opposition to that, my Lord.

27. MR JUSTICE SCOTT BAKER: The appeal will be dismissed with costs.

28. MR ENGELMAN: I have an application. I ask your Lordship for leave to appeal to the Court of Appeal against your Lordship's judgment. I shall be very brief. We submit that the points raised as to the impact of s.9 upon this case, the question of costs raised by the case of Tandy, your Lordship will of course recall that, to a lesser extent the impact of s.316 point to this case being decided at the next hurdle, if your Lordship will permit it.

29. MR JUSTICE SCOTT BAKER: I think you should ask the Court of Appeal. I refuse leave. You do not have any corrections, do you?

30. MR ENGELMAN: My Lord, no. I have read the judgment and it seems to me to be entirely accurate.