England and Wales High Court (Administrative Court) Decisions

QUEEN v. BIRMINGHAM CITY COUNCIL EX PARTE JACOB YOUNGSON [2000] EWHC Admin 430 (11th December, 2000)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATION COURT

Case No:CO/4235/1999

Royal Courts of Justice

Strand, London, WC2A 2LL

Date: 11 December 2000

MR JUSTICE SCOTT BAKER:

1. Jacob Youngson was born on 24 October 1987 and is therefore now aged 13. He has ambitions to be a professional ballet dancer. He has some talent and his parents applied to the Local Education Authority of the Birmingham City Council (the Defendant) for a grant to enable him to attend a full time vocational dance course. On 10 February 1999 the application was rejected. In the refusal letter Mrs Neal, the Defendant's client services manager, said:

``I regret it will not be possible to provide assistance. It is the policy of this Authority to provide assistance only where very specific exceptional circumstances are met as detailed in the enclosed documentation.''

2. Jacob's parents sought a review, but again the application was rejected; this time by letter dated 28 July 1999. The circumstances advanced in support of the application were not felt to be sufficiently exceptional to warrant an exception to the general policy.

3. On the 3 March 2000 the claimant was granted permission to apply for judicial review of the decision. In consequence the Defendant reconsidered its decision. Again the application was refused. In the refusal letter dated 26 April 2000 the Defendant said this:

``The Sub-Committee considered your financial circumstances and was satisfied that severe financial hardship had been demonstrated. The Sub- Committee accepted that the information provided at its meeting on 27 July 1999 on the Dance Track Project and the Royal Ballet School Junior Associate Programme had subsequently been found to be incomplete. After careful and detailed consideration of your application, the Sub-Committee was not persuaded by the information presented that you have met the exceptional circumstances required for a grant and therefore found that your circumstances did not warrant an exception to policy. Your application was therefore dismissed. The reasons why your application was dismissed were as follows :

(a) The Sub-Committee considered that you had not demonstrated that all appropriate alternative sources of funding had been exhausted in particular the availability of funding from the preferred residential setting.

(b) The Sub-Committee considered that you had not demonstrated that the expected outcome for Jacob from the preferred setting, in terms of academic and dance qualifications, could not be achieved whilst he attended a local mainstream school.''

4. By amendment to the judicial review application it is that decision that is now challenged.

5. It is necessary to begin by referring to the statutory framework under which the Defendant was operating. Section 9 of the Education Act 1996 (the 1996 Act) provides that in exercising all their respective powers and duties under the Education Acts, local education authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents in so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.

6. The Defendant's power to make awards is to be found in Section 518 of the 1996 Act. It provides:

``Regulations shall empower local education authorities, for the purpose of enabling persons to take advantage without hardship to themselves or their parents of any educational facilities available to them -

(a) to defray such expenses of children attending county, voluntary, grant maintained or special schools as may be necessary to enable them to take part in school activities, and

(b) to pay the whole or any part of the fees and expenses payable in respect of children attending schools at which fees are payable, and

(c) to grant scholarship, exhibitions, bursaries and other allowances in respect of persons over school age.''

7. The relevant regulations are the Scholarship and Other Benefits Regulations 1977 (the 1977 Regulations) .

Regulation 4 provides:

``Subject to Regulation 6, every authority may for the purpose of enabling pupils to take advantage without hardship to themselves or their parents of any educational facilities available to them .....

(d) pay the whole or any part of the tuition fees, boarding or lodging fees and expenses payable in respect of children attending schools at which fees are payable.....''

8. And Regulation 6:

``No payment shall be made under these Regulation unless -

(a) it is required to be made in order to prevent or relieve financial hardship;

(b) except in the case of a payment under Regulation 4 (e) (ii), the amount of the payment is related to the means of the parents of the pupil;

(c) the authority is satisfied that the course of education to which the payment relates is suitable to the pupil.''

9. In my judgment the natural meaning of this legislation is that local authorities have a discretion whether to make payments in individual cases. Significantly the word may rather than shall appears in Regulation 4. The discretion cannot, however, be exercised in favour of making a payment unless the conditions in Regulation 6 are satisfied.

10. This case is not concerned, as was suggested by the Claimant in his skeleton argument with Section 491 of the 1996 Act which is directed to the Secretary of State. It is concerned with Section 518 which is directed at local government. In fact Jacob tried to obtain a government assisted place under a central government scheme which funds 200 places. In the spring of 1999 he attended an audition for a place at Elmhurst Ballet School in Surrey, but unfortunately he was not invited to return for a second audition. Presumably there were more deserving candidates. Accordingly his parents directed their attention to a discretionary grant from the Local Authority under Section 518.

11. Jacob did however go to Elmhurst School in September 1999 and he has been there ever since. But the problem for his parents is who is going to pay the fees which are in the region of £11,000 per annum. The fees are (or were in April of this year) £3,692 per term (£11,076 per annum). There are additional costs of around £700 per term (£2,100 per annum) in travelling and other expenses related to boarding so the total annual package is over £13,000. The academic year just ended was funded by Mr and Mrs Youngson, £5000 was borrowed from their family. The school is residential and provides a wide curriculum in addition to the normal academic studies. This includes ballet and dance tuition as well as singing and drama. There are about 150 pupils of whom approximately 15 are boys. His parents would like him to stay there until he is 16 and study for Royal Academy dance qualifications as well as qualifications from the Imperial Society of Teachers of Dancing. In addition, completing the study through to the sixth form leads to a National Diploma of Vocational Dance. It is his parents' case that nothing comparable can be obtained in the West Midlands. In particular, attending a mainstream school in Birmingham and undertaking private tuition would not be sufficient. In her evidence Mrs Youngson says the cost of private tuition would in any event amount to more than the cost of Elmhurst School. Jacob was also offered a place at the Hammond School in Chester and at the Arts Education School at Tring but the fees are comparable to those at Elmhurst and anyway Mr and Mrs Youngson did not feel either of these schools would be any better than Elmhurst.

12. The problem of cost is an ongoing one not only from the viewpoint of the parents but also from that of the grant making authority. One is not looking at one year but five years i.e. 5 x £11,000 = £55,000. The Defendant, if making a grant, would in practice be committing itself to five years and not one and therefore to a considerable sum of money.

13. Mr De Mello, for the Claimant, argues that the Defendant's policy is ultra vires. The policy is set out in the notes for guidance for a review of an application for a discretionary award. It can be summarised that an award will only be granted if there are exceptional circumstances to justify departure from the Council's general policy. The applicant must show :

(i) evidence of severe financial hardship i.e. that he and his family are unable to fund the course of study;

(ii) that it is not possible to obtain funding from other sources

(iii) that there are compelling reasons why alternative forms of study which achieve the same qualifications are not available or appropriate; or

(iv) that there are other exceptional circumstances.

14. It is Mr De Mello's contention that the Defendant's discretion is limited. If the conditions in Regulation 4 are satisfied and the Regulation 6 criteria are met, then there is a presumption that a grant will be made. But, he says, the policy introduces additional criteria for a grant namely severe financial hardship, no alternative sources of funding, or exceptional circumstances. That apart, the policy is that Birmingham children should receive an education appropriate to their needs in a mainstream school. The Defendant's policy in effect dilutes the right that is given by Section 518 of the 1996 Act and Regulation 4 of the 1977 Regulations.

15. In order for Mr De Mello's argument to succeed it is necessary to read may as shall in Regulation 4, in other words to conclude that Regulation 4 imposes a duty rather than gives a discretion.

16. Mr De Mello draws particular attention to the reason expressed in Section 518 for the grant making power given to local authorities i.e. to enable persons to take advantage ``without hardship to themselves or their parents'' of educational facilities. It is not, he submits, limited to financial hardship but can include the effect on other members of the family through its impact on the parents. The purpose of the power illustrates that Regulation 4 should be construed in mandatory terms and that there is no room for discretion once the Regulation 6 criteria are met.

17. Mr Sheldon, for the Defendant, points out that where the word may is used it ordinarily means may. I was referred to Bennion on Statutory Interpretation 3rd Editon p. 34 which indicates that this is not inevitably so. However I can find nothing in this case to support Mr De Mello's construction that may means shall .There is no reason to depart from the natural meaning of Regulation 4. A discretionary power in Regulation 4 is entirely consistent with Section 518 which grants a power to the local authority rather than imposes a duty upon it. Also, the word shall appears in Regulation 6 which clearly does impose a duty not to make a payment absent the fulfilment of certain criteria.

18. I am quite unpersuaded that the Defendant acted ultra vires. It was exercising a power and was entitled to take into account various considerations so long as the purpose of the power was not frustrated. The policy and criteria are lawful. The Defendant can perfectly and properly have them and if the criteria are not satisfied refuse a grant application. Ms Nicholls, the Head of Individual Client Services of the Birmingham City Council Education Department for the past 10 years, says that during that period the Council has received several applications for discretionary awards and that these have included requests for financial assistance for ballet, tennis, theatre and specialist cultural school fees. Each was rejected initially; eight applications, apart from the present one, were on request reviewed by the Sub- Committee and of these decisions four were overturned and discretionary awards granted.

19. The question that I have to decide therefore is whether the Defendant acted lawfully in the exercise of its discretion when it declined to make a grant to assist Jacob's attendance at a full time residential dance school, namely Elmhurst.

20. The refusal letter of 26 April 2000 is supplemented by the minutes of the meeting of the Sub-Committee. As was mentioned in the refusal letter, unlike at the earlier hearings, this time severe financial hardship was found to be established (albeit the decision was not unanimous). The second main conclusion was that the Youngsons had not demonstrated that alternative forms of study were unavailable. Jacob's academic needs could be met in a mainstream school and it was not demonstrated that he could not maintain academic and dance qualifications equivalent to those at Elmhurst if he attended a local mainstream school. It seems to me impossible to refute the suggestion that he could achieve just as good academic qualifications in a mainstream school, but is the conclusion about dance qualifications arguably irrational? The third main conclusion was that the Youngsons had not shown that all appropriate alternative sources of funding had been exhausted, in particular funding from Elmhurst.

21. I turn therefore to consider the Defendant's conclusions about alternative forms of study and funding. There was before the Sub-Committee evidence of alternative forms of study. The Sub-Committee had before it documents relating to the Royal Ballet Mid-Associate Scheme. Mrs Youngson says in her affidavit of 3 August 2000 (which was not of course before the committee) that the scheme is not suitable for Jacob's vocational training as it does not provide the amount, depth or qualifications of training that he would obtain from a vocational dance school. Also, she says, Jacob did not audition because he was not aware of the scheme. Therefore, even if it was suitable he could not obtain a place for September 2001. We know from p 159 of the bundle that no discussion took place at the meeting on the Mid-Associate Scheme but the material was plainly before the committee and there is no reason to suppose that they did not read it.

22. The evidence of Ms Nicholls is that in addition to the Dance Track and Royal Ballet School schemes there were other providers of dance tuition in the Birmingham area, in particular private dance schools offering out of hours tuition. The Youngsons' case appears to be that Jacob's goals can only be achieved if he attends a vocational school such as Elmhurst. The Sub-Committee was unpersuaded of this. There was no evidence to support the contention that his goals could not be achieved without attending a vocational ballet school. It was not demonstrated that a mainstream school plus local dance opportunities would be insufficient to achieve the desired result. It has, I think, to be kept in mind that the onus is on the parents and not the local authority to provide the material information. I have no doubt that Mr and Mrs Youngson have set their minds firmly on one answer - Elmhurst. But the Sub- Committee was entitled to conclude that other options had not been eliminated. It seems to me clear that their conclusion cannot be stigmatised as irrational or unreasonable in the Wednesbury sense.

23. On the question of alternative funding, the Youngsons ran into the same difficulties. They failed to persuade the Sub-Committee that alternative funding was unavailable. Unfortunately, the picture I have is the Youngsons simply did not explore the position sufficiently thoroughly. The Sub-Committee was in particular concerned about the lack of evidence from Elmhurst. Again the onus was on the Youngsons and not on the local authority. It was not up to the local authority to show that there was an alternative source of funding. I should have thought the Youngsons could easily have asked Elmhurst and the other vocational schools what contribution if any might be available to fund Jacob's education. If the answer was none that could very simply have been put before the Sub-Committee. Here too, it seems to me, the Sub- Committee was justified in reaching the conclusion that it did.

24. There is a peripheral point about bullying. The Sub-Committee was aware that Mr and Mrs Youngson were concerned Jacob would be the subject of bullying if he attended a mainstream school. They were, in the absence of anything other than parental concern, fully entitled to disregard this as a reason for rejecting mainstream schooling.

25. Mr Sheldon submits that the Youngsons' arguments really come to this: that the Defendant is under a duty to fund Jacob's placement at a school of their choice irrespective of the expense and that there is a duty to fund Jacob at Elmhurst if that is the only route by which he can become a ballet dancer. The answer, he submits, is that there is no duty on the Defendant to do either. As I have already mentioned, one is concerned here not with a mandatory duty but a discretionary power.

26. Parental preference in Section 9 of the 1996 Act is qualified by the avoidance of unreasonable public expenditure. Likewise, the right to education enshrined in Article 2 of the First Protocol in Schedule 1 to Human Rights Act 1998 is qualified in the same way (see the qualified acceptance by the United Kingdom in Part II of Schedule 3). As Slade L.J. pointed out in R v Surrey County Council Education Committee ex parte H (1984) 83 L.G.R. 219 at 235, there is no question of Parliament having placed local authorities under an obligation to provide a child with the best possible education. There is no duty on an authority to provide such a utopian system, or to educate him to his maximum potential. Education, as most fee paying parents know, is a very expensive business. Like parents, local authorities do not have infinite resources. Local educational authorities are entitled to draw tight guidelines for the exercise of their discretion under the 1977 Regulations. They have to bear in mind that for every child who benefits from a grant the burden falls elsewhere on the community. In my judgment the Defendant was entitled to have the policy and criteria that it did and if the criteria are not satisfied to refuse the application.

The Human Rights Act 1998.

27. Mr De Mello argues that there are breaches of Article 8 of the European Convention on Human Rights and also of Article 2 of the First Protocol.

28. Article 8.1 provides:

``Everyone has the right to respect for his private and family life, his home and his correspondence.''

29. And Article 8.2:

``There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of rights and freedoms of others.''

30. Article 2 of the First Protocol provides:

``No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.''

31. By part II of Schedule 3 to the Human Rights Act 1998, this is accepted by the United Kingdom only so far as is compatible with the provision of efficient instruction and training, and the avoidance unreasonable public expenditure.

32. Mr De Mello argues that Section 518 of the 1996 Act and the 1977 Regulations should be read in a way which is compatible with these provisions (see Section 3 (1) Human Rights Act 1998). I have no difficulty with that proposition. Where I do have difficulty is in seeing how, in the circumstances of this case, the Defendant's decision to refuse to make a grant interferes with the Claimant i.e. Jacob's right to family life. For it is his claim and his right, if anyone's, that is being infringed. What is sought is that a grant should be made to enable Jacob to stay at Elmhurst i.e. board away from his family. If he cannot stay at Elmhurst he presumably lives at home with his family. Accordingly, his family life if anything benefits from the Defendant's refusal to fund his place at Elmhurst. In my view Article 8 is not engaged in this case.

33. Nor in my judgement is Article 2 of the First Protocol engaged. Jacob is not being denied a right to education. Education does not, in any event, extend to vocational training. see X v U.K. No 8844/80, 23DR228 1980, a view subscribed to by Harris, O´Boyle and Warbrick in the Law on the European Convention of Human Rights (1995) page 541 and Lester and Pannick in Human Rights Law and Practice (1999) page 257. As Mr Sheldon put it, the obligation on a public authority under Article 2 is one of non interference. There is no positive obligation to subsidise education. It is also to be noted that Article 2 speaks of parents' rights. But these relate to their religious and philosophical convictions. This case is not concerned with those matters.

34. In my judgment the Human Rights Act 1998 adds nothing to the Claimant's case. I am satisfied that the Defendant operated a lawful policy for exercising discretion under the 1977 Regulations and that the decision to refuse Jacob a grant for vocational training at Elmhurst School was not an irrational one for the reasons the Sub-Committee gave. In these circumstances this application for judicial review must be refused.

MR JUSTICE SCOTT BAKER: For the reasons given in the judgment that has been handed down, this application is refused.

MR SHELDON: My Lord, albeit the applicant was legally aided, we do seek to ask for costs in the normal way, not to be enforced without the leave of the court.

MS KELLY: My Lord, there is very little I can say about that. I would ask for a detailed assessment of the claimant's legal aid costs now subject to the Community Legal Services regulations.

MR JUSTICE SCOTT BAKER: Yes.

MS KELLY: My Lord, I have spoken at some length with Mr De Mello over the weekend. I have clearly had a very short space of time to speak with Mrs Youngson, however, my instructions this afternoon are that she should like to seek permission to appeal on this matter and consequently I ask permission to appeal to the Court of Appeal on the following basis: in relation to paragraph 13 of the judgment, the claimant would seek permission to appeal in relation to the policy being ultra vires. The issue of whether May 1977 regulations should be construed as "shall" would be one basis on which we seek to appeal.

Secondly, my Lord, I would seek permission to appeal in relation to paragraphs 21 and 22 of the judgment and paragraph 23, both of those grounds going to the irrationality of the decision; the first of those in terms of alternative qualifications which could be obtained, and the second in relation to alternative sources of funding.

Further to that I seek permission in relation to paragraph 32 of the judgment, in relation to the potential breach of article 8 and the right to family life. The claimant will put his case as at the original hearing. Finally, in relation to breach of article 2 of the first protocol. I seek permission on those four grounds.

MR JUSTICE SCOTT BAKER: Yes.

MR SHELDON: My Lord, I oppose the application for permission to appeal. I think the matter is set out quite comprehensively in the judgment but obviously it would be a matter for yourself.

MR JUSTICE SCOTT BAKER: Permission to appeal is refused. As far as costs are concerned, you can have a legal aid taxation of your costs and the defendant can have a costs order on the usual terms not to be enforced without leave.

MS KELLY: My Lord, could I raise one further issue with you?

MR JUSTICE SCOTT BAKER: Yes.

MS KELLY: The claimant is very likely to seek permission from the Court of Appeal in relation to this matter. I would make an application this afternoon that you extend time in which that notice can be put before the Court of Appeal from the usual 14 days to at least 28 days. That is on the basis that the claimant is legally aided. Clearly approaches will have to be made as to whether continued funding will be allowed and, in any event, with the Christmas break it would be almost impossible to get an appeal in within 14 days.

MR JUSTICE SCOTT BAKER: No. I think the time limits are there for a purpose and it would be inappropriate for me to grant an extension of time having refused leave.

MS KELLY: As I understand it, my Lord, you can grant an extension even though you have refused permission. Given the fact that it would cause immense difficulties difficulties over the Christmas vacation, I would ask you to consider that in these exceptional circumstances that it would be appropriate.

MR JUSTICE SCOTT BAKER: I do not think we are that close to the Christmas vacation yet and I think it is a matter you can go to the Court of Appeal over.

MS KELLY: Certainly.

MR JUSTICE SCOTT BAKER: I am very grateful to counsel on both sides for their helpful argument. Thank you.