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Cite as: [2000] EWHC Admin 295

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METROPOLITAN BOROUGH OF WIRRAL Ex parte B, R v. [2000] EWHC Admin 295 (17th February, 2000)

Case No: CO/4708/99

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday, 17 February 2000
B e f o r e :
THE HON MR JUSTICE MAURICE KAY

	REGINA
	- v -
	METROPOLITAN BOROUGH OF WIRRAL And Ano Ex parte B.

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Nicholas Bowen (instructed by Rust Moss and Co. for the Applicant)
Richard Clayton (instructed by The Metropolitan Borough of Wirral
for the Respondents)

Judgment
As Approved by the Court
Crown Copyright ©

MR JUSTICE MAURICE KAY:
1. The Applicant is aged eight. I shall refer to her as Jessica. She has severe athetoid cerebral palsy arising from the circumstances of her birth. She is a child who has special educational needs within the meaning of Part IV of the Education Act 1996. She has been the subject of successive statements of special educational needs since February 1994. At all times her schooling has been at Elleray Park School which is a primary special school for children with complex learning difficulties. For some years, Jessica's parents have sought to persuade the local education authority (LEA) that her needs are such that she requires a full-time, one-to-one, support assistant at school, that is to say a support assistant exclusively assigned or dedicated to her. In 1996 the LEA agreed to provide Jessica with ten hours of individual support but this fell short of what the parents were seeking. On 10 July 1998, the LEA issued an amended statement of special educational needs. It included the following provision:
"Jessica needs access to individual support throughout the week to support a programme devised to specifically focus on her communication, computer skills and ability needs. The LEA will support this programme by the addition of 12½ hours individual support from a welfare assistant. Whilst the school will ensure that at the relevant times appropriate support is available from its delegated budget."
The parents remained dissatisfied and in due course they appealed to the Special Educational Needs Tribunal. In addition to the issue about full-time dedicated support, there was also an issue about the amount of specialist therapy Jessica should receive.
On the day of the hearing before the Tribunal, an agreement was reached between Mr. Moss (the solicitor representing the parents) and Mrs Royle (a general inspector representing the LEA). They then went before the Tribunal and Mr. Moss explained the agreement that had been reached. This resulted in the Tribunal making a decision, dated 19 November 1998 but formally issued on 2 December 1998. So far as the disputed provision for support was concerned, the decision stated:
"Amend existing paragraph.....by deleting the existing first sentence and inserting the following in its stead:
`One to one support to be available to Jessica for every hour of every day that she is in school, such provision to be made by a suitably experienced assistant or assistants'.
In the second sentence.....the wording is amended by deleting the words `the relevant' which are replaced by the words `all other'. In addition the following words are deleted: `from its delegated budget'."
There is a great deal of controversy about who said what and to whom at the Tribunal, but it is common ground that the wording promulgated by the Tribunal reflects exactly what the parties finally agreed.
The decision of the Tribunal is in the form of an order requiring the LEA to amend the statement in the manner specified in accordance with section 326(3)(b) of the 1996 Act. On 12 January 1999 the LEA issued an amended statement signed by Mrs Royle. Whilst it accurately implemented the decision of the Tribunal in relation to the second sentence, it did not do so in relation to the first sentence. The amended version of the first sentence read:
"Jessica needs one to one support for every hour of every day that she is in school, such provision to be made by a suitably experienced assistant or assistants."
According to Mrs. Royle, that wording was erroneous and arose from an administrative error, eventually said to have been caused by an unnamed clerk. It was nevertheless the document which was exhibited by Jessica's father in the affidavit in support of the application for judicial review. The evidence of Mrs. Royle is that she also signed a second, this time correct amended statement on 12 January 1999 in which the first sentence read:
"One to one support to be available to Jessica for every hour of every day that she is in school, such provision to be made by a suitably experienced assistant or assistants."
There is no doubt that this version replicates precisely the decision of the Tribunal and the agreement between the parties which preceded it. Mrs. Royle states that it has been on file as the relevant working document since January 1999, even though the other document was mistakenly sent to Jessica's parents.
The LEA is under a statutory duty to arrange that the special educational provision "specified in the statement" is made for Jessica (section 324 (5)(a)(i)). Their case is that "the statement " is the one which replicates the wording of the Tribunal and that they are complying with it because it does not require them to provide a dedicated assistant working exclusively with Jessica throughout the day. The submission made on their behalf is that the crucial word is "available" and that what the obligation, properly construed, requires is that support for Jessica is provided as and when required by one or more assistants, none of whom is deployed exclusively for Jessica. The case for Jessica is that "the statement" upon which she is entitled to have her needs provided is the one that was sent to her parents; or, alternatively, if "the
statement" is the one relied upon by the LEA, then, properly construed, it still entitles her to a dedicated assistant working exclusively with her.
Before I turn to consider these rival submissions, it is necessary to say something about these proceedings. They are in the form of an application for judicial review in which it is alleged that the LEA is failing, in one way or another, to comply with its statutory duty. I have already referred to a factual dispute about who said what and to whom at the Tribunal. There is also a dispute about the provenance of the two statements and, in addition, I am invited to draw inferences from subsequent correspondence as to what the LEA thought at the time about the parameters of its obligations. On behalf of Jessica, Mr. Bowen invited me to hear oral evidence from those who dispute what went on at the Tribunal but I declined to do so. No order had been sought prior to the hearing and, in any event, as there is no dispute between the parties as to what wording was agreed between Mr. Moss and Mrs Royle (and which was accurately reflected in the decision of the Tribunal), there was nothing to be gained in conducting an investigation into what any of those present may have said about the agreement or its interpretation. I see no need to go outside what the Tribunal decided and what "the statement" provides. I shall therefore consider, first, the issue as to which is the appropriate statement and, secondly, the construction of the appropriate statement.
1. The Statement.
The explanation of how an unnamed clerk created a statement on an erroneous basis and how that document came to be put into circulation not once but twice after it had been signed by Mrs. Royle hardly stands as glowing testimony to efficiency and good administration. However, it is an explanation that I accept. Mrs. Royle must have known that the statement had to reflect the decision of the Tribunal. A mistake was made and then compounded but it was, I am sure, a mistake made in good faith. Mr. Bowen submitted that, even if it was such a mistake, the statement nevertheless gave rise to a statutory duty to make provision for Jessica in accordance with it. He sought to sustain this submission by reference to Regina v. Lancashire County Council, ex parte M [1989] FLR 279. There the statutory framework was to be found in the Education Act 1981 and the Education Reform Act 1988. An issue arose as to whether intensive speech therapy was a special educational provision within the meaning of the 1981 Act. The local education authority, having included the therapy in a statement under the heading "special educational provision", later contended that they had no legal power so t o do because its was, by classification, non-educational rather than educational provision. This contention failed in the Divisional Court and the Court of Appeal. The Divisional Court (but not the Court of Appeal) went on to consider an alternative submission made on behalf of the applicant that if, as the local authority were saying, the inclusion of the therapy as "special educational provision"
was the result of an administrative error or oversight, the applicant was nevertheless still entitled to rely upon it. Stuart-Smith LJ said (at p. 289):
"Even if....it was a mistake it does not, in my judgment, mean that the statement is a nullity. At best it would be a matter for the discretion of this court whether we were to grant a remedy to the applicant or not. If I were satisfied that there had been a genuine mistake in the statement, then I can see that in the exercise of the court's discretion it might be a proper case for the type of remedy sought."
Pill J. Added (at p.290):
"In my judgment, that categorisation contained in a formal statement signed with knowledge of its contents is not invalidated and cannot be ignored on the basis that it was an administrative error. The authority may not fully have appreciated the legal implications of their action, but the statement cannot be impugned by them on that ground."
The statutory regime at that time preceded the establishment of the Special Educational Needs Tribunal. The only available appeal was to an appeal committee within the local education authority which had no power to rewrite the provision - its powers were limited to confirmation or remission for reconsideration (1981 Act, section 8(4)). That is very different from the 1966 scheme. Now, once the Tribunal has ordered the authority to amend a statement pursuant to section 326 (3)(b), it is not open to the authority to amend it in a manner at variance with a decision of the Tribunal. The idea that there may be a statutory duty to give effect to a statement which is at variance with a decision of a Tribunal which the authority has a statutory duty to implement is absurd. In my judgment, ex parte M does not avail the Applicant in the present case, having regard in particular to the changed statutory framework and the establishment of the Tribunal. I should add that, even if I were wrong about that,
in the circumstances of this case and my conclusion that the document sent to the Jessica's parents was sent as a result of genuine mistake, I would exercise discretion against granting relief based on the erroneous document.
It follows that "the statement" in the present case for the purposes of section 324(5)(a)(i), is the one which faithfully replicates the wording of the Tribunal decision.
2. Construction
The issue comes down to this: do the words "one to one support to be available to Jessica for every hour of every day that she is in school, such provision to be made by a suitably experienced assistant or assistants" entitle Jessica to dedicated exclusivity? In my judgment, they do not. I agree with the submission of Mr. Clayton that the inclusion of the word "available" is very significant. I cannot accept Mr. Bowen's submission to the effect that "to be available to" means no more than "in relation to". It follows that the LEA complies with its statutory duty if, for every hour of every day that Jessica is in school, one-to-one support is available to Jessica. Such support does not require any assistant to be deployed on the basis of dedicated exclusivity.
Other matters
Although the application for judicial review and the permission to pursue it included a second ground of challenge in relation to the provision of specialist therapy, I was informed at the commencement of the hearing that the dispute about that has now been resolved.
Secondly, I record that, if I had reached a substantive conclusion favourable to Jessica, I would have had to consider the question of delay in accordance with Mr. Clayton's submissions. However, although there was a degree of delay, the circumstances as a whole were not such that I would have refused relief.
Finally, I do not want to leave this case without referring to Jessica's parents. It is clear that in all their dealings with the LEA and with the School they have done their utmost to act what they consider to be in the best interests of their daughter. I can well understand why, at different stages, their dealings have left them disappointed. I am conscious that that disappointment is hardly going to be relieved by the contents of this judgment but they no doubt appreciate that I cannot allow sympathy to influence legal analysis.