England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT

		Royal Courts of Justice Strand London WC2 Tuesday, 24th June 2003

1. MR JUSTICE MCCOMBE: In this matter Miss C appeals against a decision of the Special Educational Needs And Disabilities Tribunal, which I shall call the Tribunal, issued on 3rd March 2003 in a case concerning her son, M, now aged 16. The appeal lies from that Tribunal on points of law only, under section 11 of the Tribunals and Inquiries Act 1992. The Tribunal's decision was itself made upon appeal to it by Miss C under section 326 of the Education Act 1996. That appeal was an appeal against the contents of a Statement of Special Educational Needs made by the London Borough of Brent as education authority on 9th April 2002 under section 324 of the 1996 Act.
2. Mr Oldham of counsel appears for the authority before me.
3. The complaint before the Tribunal was in respect of part 4 of the statement so made by the authority, which specified a school called Burlington Danes school as the appropriate school for the provision for the special needs of M.
4. The appeal was heard by the Tribunal on 17th February 2003. At that appeal Miss C's contention was that part 4 of the statement ought to specify an institution called Sankofa Learning Centre, which I shall call SLC, at Thornton Heath near Croydon, as the appropriate alternative arrangement for M. It was common ground that SLC was not a school within the meaning of the 1996 Act. Indeed, the principal of SLC gave evidence that that establishment was designed to provide education otherwise than at a school for the purposes of the Act. Material showed to me this morning by Mr Oldham indicates that that clearly was the status advanced by that institution to the public, and was apparent as such to the Tribunal.
5. At the hearing before the Tribunal the argument centred upon whether M was able to cope with attending any mainstream school. Miss C contended he was not. The LEA contended that Burlington Danes was an appropriate school for M which could make the educational provision specified in part 3 of M's statement.
6. The Tribunal found the evidence of Miss C, and of her other witness Miss Townsend, unconvincing on this point, and accepted the evidence of an educational psychologist that Burlington Danes was indeed a school which could make the educational provision necessary. It found accordingly that M's special needs provision could be appropriately met in a school, having regard to section 9 and section 319 of the 1996 Act, and that therefore it was not open to the local education authority, or to the Tribunal, to specify that M should be educated otherwise than at a school.
7. The Tribunal also stated that, had it been able to consider education otherwise than in a school, it would have had difficulty in considering SLC as suitable for these purposes, in the absence of independent evidence as to its effectiveness for M.
8. On this appeal Miss C maintains that the Tribunal's decision was wrong in law on six grounds. She has advanced those grounds with conspicuous clarity and courtesy, both in writing and orally before the court today.
9. The first two grounds allege misdirections as to section 319 of the Act. The third ground alleges a breach of natural justice before the Tribunal. The fourth, fifth and sixth grounds alleged failures to consider section 315, section 411 and section 517 of the 1996 Act.
10. So far as the ground raising section 411 is concerned, Miss C abandoned reliance upon that section, but asked in support of the same material to rely upon section 9 of the Act. Insofar as she needs leave to amend any notice of appeal in that respect, that leave is granted.
11. I shall deal first with the last three grounds, those dealing with the alternative sections of the Act, relied upon by Miss C. With regard to section 315 of the Act, it is clear that this deals with the provision of special educational needs generally by a local authority. It is not concerned with the review of provision made in individual cases. It is of no relevance, therefore, to this case. That is clear from the decision of Potter J, as he then was, in P and Others v Harrow London Borough Council [1993] 2 F.C.R 341. I would quote from page 352 of the judgment in that case, where the learned judge was considering the provisions in identical terms in the predecessor Act to the 1996 Act. As to that provision Potter J said this:

"... as I read s.2, [as it then was] it is dealing generally with the arrangements made for special educational provision by a local authority, in the sense of the numbers and types of school it arranges to have available and the skills and facilities available within those schools to meet special educational needs. It is not either in its language or context, apt to impose any duty or function in relation to the progress of specific pupils for whom provision has been made and, hence, does not address itself to the health or welfare of individual pupils such as the plaintiffs."

12. As a gloss on that submission Miss C has advanced to me, orally, the following argument, that is: if the LEA had carried out properly its duties to review M's educational needs from time to time, it would have appreciated that Burlington Danes was not appropriate for M. However, as I endeavoured to point out to her in argument, no such issue as to the adequacy or otherwise of the review process was before the Tribunal. The only question for it was upon Miss C's appeal against the contents of the original April 2002 statement. There was no question before it relating to the review process, or lack of it. Accordingly, no question of error in that respect arises upon this appeal.
13. Miss C's submission on section 9 of the Act is that the Tribunal failed to have proper regard to the provisions of that section. The section provides as follows:

"In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State, local education authorities... shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure."

14. As Richards J said in the case of T v Special Educational Needs Tribunal and Wiltshire County Council [2002] ELR, page 704, section 9 sets out a general principle to be taken into account. Reference is made to the specific instance of this in paragraph 3 of schedule 27 to the Act.
15. The Tribunal, however, referred to section 9 and was obviously aware of Miss C's wishes. Having taken it into account, however, together with the other evidence before it, it reached a conclusion adverse to Miss C's wishes.
16. That does not mean that, in applying the other provisions of the Act and section 9, the Tribunal did not have regard to the wishes of the parent. It clearly did so and no error of law is disclosed by the grounds of appeal in that regard.
17. I turn now to section 517 of the Act, touched upon in ground 6 of the appeal. This deals with the payment of fees by an authority where education is to be provided by a school not maintained by a local education authority. That section has no relevance to the question of whether, in any particular case, education should or should not be provided in such a school. As already indicated, however, the evidence before the Tribunal was that SLC was not a school within the meaning of the Act, and it was not sought to contend otherwise.
18. Accordingly, in my view, those last three grounds of appeal fail.
19. I turn now to the main grounds of appeal in the case, namely grounds 1, 2 and 3. Grounds 1 and 2 allege that the Tribunal misdirected itself upon section 319 of the 1996 Act. That section provides as follows:

"(1) Where a local education authority are satisfied that it would be inappropriate for -

(a) the special educational provision which a learning difficulty of a child in their area calls for, or -

(b) any part of such provision

To be made in a school, they may arrange for the provision (or, as the case may be, for that part of it) to be made otherwise than in a school.

(2) Before making an arrangement under this section, a local education authority shall consult the child's parent."

20. The first of the grounds before me seeks to revisit the decision made by the Tribunal, that M's needs could be appropriately met by a school, and that Burlington Danes could make the educational provisions specified in part 3 of the relevant statement. That seems to me to be an attempt to appeal upon a finding of fact upon which this court has no jurisdiction.
21. The second ground seeks to raise the rival suitability of Burlington Danes and SLC as the appropriate place for M's education. However, as already indicated, it was not contended before the Tribunal that SLC was a school within the meaning of the Act and the evidence was that it was not. Since the Tribunal was satisfied that M's educational needs could be appropriately met by a school, it was not open for it to specify that education otherwise than at a school should be provided. Indeed, the statement itself seems to envisage in terms in section 3 that the necessary education should be provided in a school. In such circumstances, the question of the suitability of SLC for M did not arise, and the Tribunal so found.
22. Finally, in the third ground of appeal, Miss C argues that there was a breach of natural justice. This arises out of paragraph F of the Tribunal's decision, which is in the following terms:

"As we were satisfied that M's special educational provision could be appropriately met in a school, having regard to the provisions of Section 319 of the Education Act 1996, and the recent decision in T v Special Educational Needs Tribunal and Wiltshire County Council [2002] EWHC 1474, to specify that M should be educated otherwise than at school was not an option open to us. Hence, although we fully appreciated Miss C's preference for her son to be educated at the SLC, and we found Mr Philips a helpful witness, these were not factors which could enable us to invoke Section 319. Had we been able to consider 'education otherwise' we would have had great difficulty in considering SLC suitable in the absence of independent evidence as to its effectiveness for M."

23. That paragraph summarises, in clear terms, why the SLC option was not open to the Tribunal in this case. However, it is the last sentence which gives rise to the final ground of appeal. Miss C says that she had no warning at all that the Tribunal would expect independent evidence as to the suitability of SLC. As indicated, this issue did not in fact arise, because of the Tribunal's findings earlier in the paragraph.
24. Mr Oldham, for the authority, while not conceding that the absence of such warning would have been fatal to any decision on the suitability of SLC, accepts that the point would have been more arguable if any such question had in fact arisen for decision. However, as the question did not arise, there can, he submits, be no conceivable error of law by the Tribunal in this respect. I agree.
25. Miss C relied in support of this ground of appeal upon the decision of Scott Baker J, as he then was, in W v Gloucestershire County Council [2001] EWHC Admin 481, where the learned judge said at paragraph 15 the following:

"Whatever the reason, it seems to me that if there was inadequate information, the Tribunal should have taken steps to obtain it, if necessary adjourning to do so. Tribunals, so it seems to me, cannot proceed on a purely adversarial basis, but have a duty to act inquisitorially when the occasion arises by making sure they have the necessary basic information on which to decide the appeal before them, rather than rely entirely on evidence adduced by the parties. The Tribunal will usually have much greater relevant expertise than the parents who appear before them."

26. Miss C argues that that passage applies to her equally, and that the Tribunal gave no directions about this, although it had given specific directions on an earlier occasion about information and oral evidence to be adduced about SLC.
27. All this is fair comment in a case where there is a true issue as to the suitability of one school over another, as was the issue in the Gloucestershire County Council case itself. It does not, however, appear to me to be material in a case where the Tribunal had correctly decided, in the light of its factual decisions, that no such issue arose.
28. For those reasons this appeal is dismissed.
29. MR OLDHAM: My Lord, I am grateful. We do not seek any other order.
30. MR JUSTICE MCCOMBE: I think that is very noble of you, if I may say so.
31. Is there anything else which arises, Miss C? I have found against you. If you wanted to go higher you would need my permission to appeal or the permission of the Court of Appeal, or does it not arise?
32. MR OLDHAM: My Lord, sorry to interrupt; well, since it is a second appeal by, I think it is rule 52.13, your Lordship cannot give permission to appeal. It has to be sought from the Court of Appeal.
33. MR JUSTICE MCCOMBE: That is correct. Mr Oldham is right about that. I cannot give you permission to appeal. If you do not like what I have decided, it is open to you to go to the Court of Appeal, but I must indicate, having heard the submissions this morning, I think it is very unlikely that the court would consider appeal had a reasonable prospect of success.
34. Thank you very much indeed for your very helpful submissions on this matter. Thank you.