England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
ADMIN COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		14/05/2007

Mr Justice Irwin :

Introduction

1. This case concerns the question as to whether the Special Educational Needs and Disability Tribunal [SENDIST] have jurisdiction to hear an appeal by the Interested Party Sally Smith in respect of the failure by the Appellant, Wolverhampton City Council [LEA] to maintain a statement of Special Educational Needs for Mrs Smith's son Andrew and to direct the LEA that they should continue to maintain a statement.

Background and Facts

2. Andrew was born on 23 November 1988 and turned 16 on 23 November 2004. This means that he ceased to be of compulsory school age at the end of June 2005. He was statemented by the Appellant on 25 January 2001, having previously been diagnosed with Asperger's Syndrome. Mrs Smith withdrew Andrew from Hartlebury School on 20 May 2004 and10 June 2004, at a meeting between the LEA's officers and agencies and attended by Andrew's psychologist and Connexions' Advisor it was agreed by all concerned that Andrew's educational needs would best be met by an organisation called Not School.Net. The proposal was that he could work towards admission to a Further Education College in September 2005.
3. On 5 October 2004 the LEA sent Mrs Smith an amended final statement:

"which will be maintained by the Authority and reviewed every year, to ensure that it remains appropriate. Whilst the review will be co-ordinated by the head teacher of Andrew's school, your full involvement will be invited. In accordance with the amended statement, special educational provision will be made for Andrew at Education Other than at School, notschool.net where a copy of the statement will also be kept on file."

It will be obvious that some of this was proforma or standard wording. Andrew did not have a head teacher and was not at school. However, the letter would have given Mrs Smith the understanding that the proposal was to continue to address Andrew's schooling beyond the current school year, which was of course the last school year during which he would be of compulsory school age. The letter went on to remind Mrs Smith of her rights of appeal to SENDIST if she disagreed with the description of Andrew's special educational needs in the statement.

4. On 10 December 2004 Farleigh College Somerset, which is in Somerset, wrote to Mrs Smith formally offering Andrew a placement commencing in September 2005. Mrs Smith accepted this offer by letter on 7 January 2005 and on 11 May 2005, the Learning and Skills Council ("LSC") agreed to fund Andrew's placement at that college.
5. In about June 2005, Andrew decided that he did not wish to attend Farleigh College Somerset, it seems because he was concerned about IT provision at the College and about being so far from home. Both of those factors might be considered in common sense terms important for someone with Asperger's Syndrome.
6. By June 2006, Andrew was still being educated through notschool.net and the question of which further education institution he should attend was not finally resolved. However he had formed a clear preference, following discussions with his family and with relevant experts who were helping them. On 19 June 2006, Mrs Smith wrote to the LEA stating that Andrew would wish to attend Farleigh College Condover and that this placement had been agreed with the college and with the family's advisors. One difficulty was that Farleigh College Condover had not yet achieved the approval of the Learning and Skills Council and thus his placement there would not be funded by the LSC. Andrew's placement with notschool.net was to come to an end at 30 June 2006 and Mrs Smith wanted the LEA to confirm funding and support for the placement at Farleigh Condover. She wrote on that date:

"I am very worried that if this is not dealt with as a matter of great urgency, Andrew will miss his opportunity for LEA funding; I cannot let this happen as this is the only opportunity available to Andrew and we really need to recoup the lost years of his time with notschool.net.

I do hope you will be able to assist Andrew to the full capacity of your role as Statementing Officer; for as I say, after much exhausted searching by myself and Jane Cox, there is nothing else available for Andrew."

7. On 21 June, Mrs Smith wrote again to Ms Lyle of the LEA following a conversation of the 20^th. She wrote as follows:

"I would like to make it clear that my wish is for Andrew to remain in full time school education beyond the end of his placement at notschool.net on the 30^th June.

I would therefore like our meeting on 10 July to be a Review Meeting to discuss options and steps that can be taken with this in mind.

…….

Condover Horizon School/College has several 16-18 year old LEA funded students commencing study very shortly; their places are funded by their respective LEAs due to the fact that Condover Farleigh is a 6^th Form School as well as having FE College status."

8. Condover is in North Eastern Shropshire and thus very much closer to Andrew Smith's home than the college for which funding had been agreed in Somerset.
9. Evidently nothing more was said or done by the LEA before the end of June and thus the end of the current school year, the period for which the LEA had maintained the statement in respect of Andrew's special educational needs. The planned meeting on 10 July took place and following that meeting, the LEA wrote to Mrs Smith setting our their position as follows:

"I had not replied earlier to your letter of 22 June 2006, since it seemed appropriate to await the outcome of your meeting with officers on 10 July 2006, at which the issues raised in your letter were to be discussed. I believe that the situation was clearly explained to you at the meeting, but as requested I am now replying to your letter.

Following your withdrawing Andrew from Hartlebury School, the Authority arranged for him to receive education, via notschool.net, otherwise than in school. Under normal circumstances such provision would cease when a pupil attains statutory school leaving age and in Andrew's case his statement would have lapsed automatically at the end of June 2005, given that he was over compulsory school age, not a registered pupil at a school and due to go to college in September 2005. Under these circumstances the authority was not required to formally cease to maintain the statement, since all parties were agreed on Andrew's transfer to college.

In the event, Andrew chose not to take the place at Farleigh College [meaning Farleigh Somerset] and it was agreed he could continue with notschool.net for a further year only, during which time he would work towards taking up his college place.

In order to enable Andrew to continue with notschool.net for the extra year, it was a requirement for his statement to be maintained for the duration of his accessing that provision. On 30 June 2006 however, when notschool.net ceased to provide for him Andrew was over compulsory school age, not a registered pupil at the school and was deemed to have left school. He had therefore ceased to be the responsibility of the authority for the purpose of education and his statement lapsed automatically."

The letter continued essentially by suggesting that Mrs Smith should seek to negotiate funding at Farleigh College in Condover by the LSC.

10. Mrs Smith appealed to SENDIST on 7 September 2006. The Tribunal met on 1 October, to decide whether they had jurisdiction over the appeal. The record of their decision of that date makes it clear that the President of the Tribunal had directed the jurisdictional point to be addressed. The Tribunal ordered that the application to strike out the appeal on the basis of jurisdiction should be dismissed and the heart of their reasoning was as follows:

"7. Ms Smith has found alternative provision at a school with joint status as an FE College and is looking for the LEA to fund that for the next year 2006/7.

8. The LEA maintain that Andrew had ceased to be the responsibility of the Authority after 30 June 2006 and his statement had automatically lapsed at that time as he was then over compulsory school age and was not a registered pupil at a school and indeed was deemed to have left school.

9. We considered the representations made by the LEA and by Levenes Solicitors for Ms Smith.

10. We appreciate that Andrew was not on the roll of the school when the funding for his statement finished in June 2006; nevertheless we feel that the LEA had taken responsibility for him during the two years that he was learning with notschool.net. We therefore regard the letter of 17 July 2006 as containing a decision to cease to maintain Andrew's statement, and although it did not contain the statutory information about the right of appeal, Ms Smith had appealed within two months of that date.

11. We are aware that the circumstances of this appeal are unusual but we feel that in the interests of justice Ms Smith should be allowed to continue her appeal. We are content that Andrew is a "child" within the definition of the Act and there is scope for a further year for him to be funded by the LEA within a statement.

12. We therefore determine to dismiss the application to strike out."

11. On 13 November 2006 Wolverhampton asked the Tribunal to review that decision and on 20 December 2006, there was a further hearing before the same constitution of SENDIST when the Tribunal reviewed their jurisdictional ruling. On this occasion the LEA was represented by Counsel and Mrs Smith was assisted by a representative from the Independent Panel for Special Education Advice [IPSEA].
12. The review decision was recorded in a letter of 4 January 2007 and the Tribunal sustained their original ruling on jurisdiction. On this occasion their decision was restated again, with reasons:

"We took careful account of the arguments put forward by the parties but we did not find any grounds for reviewing our decision of 31 October. We concluded that there was jurisdiction to hear the appeal because

(a) at the relevant date i.e. 30 June 2006, Andrew was a "child" within the meaning of the Act. He was not yet 19 years old and on the basis of the decision in the Essex case, the LEA could not escape responsibility for him by saying that on 17 July he was not on the roll of a school.

(b) the LEA had implicitly accepted responsibility for Andrew up to 30 June by funding notschool.net and we regarded their responsibility as falling under Section 321(3) (b) of the Act.

(c) The LEA was obliged to make a formal decision to cease to maintain Andrew's statement under Schedule 27 of the Act. Paragraph 8.121 of the Code of Practice is clear that a statement cannot simply lapse where there has been no agreement about further education. It is irrelevant the LEA waited 17 days before writing to Miss Smith.

(d) The Oxfordshire case was decided under previous legislation (Education Act 1993) that did not include the formal requirement for an LEA to cease to maintain a statement. It can therefore be distinguished from the facts of the present case.

(e) The letter of 17 July was, in our view, designed to inform Ms Smith that Andrew's statement would not be maintained. It should have been couched in the formal language required by law that would have included the parental right to appeal against the decision…….

8. Having then determined there were no grounds on which to review our decision, we decided to dismiss this application to review. The case should go to a full hearing with both parties present."

13. The present proceedings constitute a challenge by way of appeal to that jurisdictional decision by the SENDIST.

The Law

14. The statutory obligations of a local education authority relevant to this case arise under the Education Act 1996. The relevant provisions arise in Part IV of the Act. They are reasonably complex and interlocking. In order to determine the questions in this case it is necessary to consider a number of them. They are as follows:

"312(1) a child has "special educational needs" for the purposes of this Act if he has a learning difficulty which calls for special educational provision to be made for him.

………

(5) in this Part –

"child" includes any person who has not attained the age of 19 and is a registered pupil at a school …..

313(1) The Secretary of State shall issue, and may from time to time revise, a code of practice giving practical guidance in respect of the discharge by a local education authorities …… of their functions under this Part.

(2) It shall be the duty of –

(a) local education authorities ….exercising functions under this Part …….to have regard to the provisions of the code.

…………………………

(3) On any appeal under this Part to the Tribunal, the Tribunal shall have regard to any provision of the code which appears to the Tribunal to be relevant to any question arising on the appeal.

…………………….

(5) In this Part "the Tribunal" means the Special Educational Needs Tribunal.

…………………….

319(1) Where a local education authority are satisfied that it would be inappropriate for [educational provision for a child] to be made in a school, they may arrange for the provision [or as the case may be, for part of it] to be made otherwise than in a school.

……

321(1) A local education authority shall exercise their powers with a view to securing that, of the children for whom they are responsible, they identify those to whom sub section (2) below applies.

(2) This sub section applies to a child if –

(a) he has special educational needs, and

(b) it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for.

(3) For the purposes of this Part the local educational authority are responsible for a child if he is in their area and –

(a) he is a registered pupil at a [maintained school],

(b) education is provided for him at a school which is not a maintained school but is so provided at the expense of the authority,

(c) he does not come within paragraph (a) or (b) above but is a registered pupil at a school and has been brought to the authority's attention as having [or probably having] special educational needs, or

(d) he is not a registered pupil at a school but is not under the age of 2 or over compulsory school age and has been brought to their attention as having [or probably having] special educational needs.

……….

Section 323 [sets up a duty where a duty for a child for whom an LEA is responsible may have special educational needs, requiring the LEA to make an assessment of those needs].

……

324(1) If, in the light of an assessment made under Section 323 of any child's educational needs and of any representations made by the child's parent in pursuance of Schedule 27, it is necessary for the local education authority to determine the special educational provision which any learning difficulty he may have calls for, the authority shall make and maintain a statement of his special educational needs.

…..

(5) where a local education authority maintain statement under this section, then –

(a) unless the child's parent has made suitable arrangements, the authority -

(i) shall arrange that the special educational provisions specified in the statement is made for the child, and

………

(7) Schedule 27 has effect in relation to the making and maintenance of statement under this section.

………

Section 579 General Interpretation

(1) In this Act, unless the context otherwise requires –

...............

"child" means a person who is not over compulsory school age;

……………"

15. The relevant provisions of Schedule 27 of the Education Act 1996 read as follows:

"Procedure for Amending or Ceasing to Maintain a Statement

9 - (1) A local education authority may not amend, or cease to maintain, a statement except in accordance with paragraph 10 or 11.

(2) Sub-paragraph (1) does not apply where the local education authority -

(a) cease to maintain a statement for a child who has ceased to be a child for whom they are responsible,

………..

11 - (1) a local education authority may cease to maintain a statement only if it is no longer necessary to maintain it.

(2) where the local education authority determine to cease to maintain a statement -

(a) they shall give notice of that fact and of the effect of paragraph (b) below to the parent of the child, and

(b) the parent of the child may appeal to the Tribunal against the determination.

(3) on an appeal under this paragraph the Tribunal may –

(a) dismiss the appeal, or

(b) order the local education authority to continue to maintain the statement in its existing form or with such amendments of –

(i) the description in the statement of the authority's assessment of the child's special educational needs, or

(ii) the special educational provisions specified in the statement,

and other such consequential amendments, as the Tribunal may determine."

16. Key to the construction of this part of the Act, to the obligations of an LEA and to the jurisdiction of the Tribunal, are the definition of a "child" for the purposes of this part of the Act and the basis upon which an LEA is "responsible" for a child.
17. I begin with the definition of "child": it is clear that the definition set out in Section 312(5) is inclusive but not exhaustive. This is immediately obvious from the reflection that any child for whom educational provision is arranged pursuant to the power under Section 319, other than at a school, will not be a registered pupil at a school, even if they are under the compulsory school age. That demonstrates that a "child" does not cease to be a "child" for the purposes of this part of the Act simply because they do not fall within the definition set out in Section 312(5). Put another way, it is clear that the definition set out in Section 312(5) is not the single authorative definition for all purposes within Part IV of the Act.
18. Nor is the simple definition in the general interpretation section 579 sufficient for these purposes. There are individuals who must for the purposes of this part of the Act be treated as a "child" although they are over compulsory school age. That is made explicit by the definition in Section 312(5) but it is also envisaged by the opening words to Section 579(1), to the effect that context may require a broader meaning to the term than the meaning within the definition itself. In the course of argument before me, Miss Busch for the LEA submitted that this must necessarily mean a context consisting of wording within the statute and nothing broader. Mr Wolfe for the parent suggested the opposite: context might well mean factual context, relevant for the purposes of the Act.
19. In my judgment, it is clear that neither statutory formulation we have seen can be the exhaustive definition of the meaning of the term "child" for the purposes of the Act. Taking all the provisions in Part IV and the definitional section together, a "child" for the purposes of the Act must at least include any person who has not attained the age of 19 and for whom the LEA is "responsible". That of course begs the question as to the meaning of "responsible". It begs the further question, given the definition of "responsible" set out in the Act and quoted above, as to how a child is to be defined when a parent seeks to suggest that the local education authority should be "responsible" for that child.
20. In part, the difficulty arises from the fact that the scheme of this part of the Act does not stipulate that obligations owed by the LEA to the individual exclusively arise from that person's status as a child for whom the LEA was "responsible". Andrew was a case in point.
21. When Andrew was first "statemented" he was clearly a child within all the definitions possibly applying. He resided in the area of this LEA and he was below compulsory school age. On any view, he was a child for whom this LEA was "responsible". He had special educational needs and it was therefore necessary for this LEA to determine the special educational provision that he needed, pursuant to their obligation under Section 321(2). He was assessed for that special educational need, pursuant to Section 323 of the Act. As a consequence of the identified need, the special educational provision which he had called for was determined pursuant to Section 324(1). The obligation which then arose was to "make and maintain a statement of his special educational needs".
22. However, the crucial point here is that that obligation – the creation and maintenance of a statement - is not tied to a requirement at the time when the obligation arises, that the child should be for whom the LEA is "responsible". Section 323 cites that pre-requisite before the obligation to assess arises. However, once the assessment has been made, Section 324 does not cite such a pre-requisite to the obligation to make or maintain the statement. Miss Busch for the LEA argued that this should be read implicitly into the obligation. Mr Wolfe for Mrs Smith argued that it should not. Even before turning to authority, it seems to me that Mr Wolfe's interpretation is to be preferred. As a matter of straightforward construction, if Parliament had intended such a pre-requisite to this obligation, that could easily have been included in Section 324, as it was included in Sections 321 and 323. Moreover, there is the straightforward practical consideration that if the child is moved from the area of the LEA after the assessment but before the statement is created, it would be extremely wasteful of public resources if the LEA which had made the assessment, had no obligation to complete the process and create a statement. I accept that different practical considerations might affect the maintenance of the statement in such circumstances.
23. Moreover, the meaning of "child" in this context has been examined in a previous comparable case coming before the High Court. In S –v- Essex County Council and the Special Educational Needs Tribunal [2000] ELR 718, Mr Justice Turner looked at a similar case, where a similar problem arose. In that case the child ceased to be of compulsory school on 25 June 1999, and on 26 July the LEA notified its intention to cease to maintain the statement. The LEA applied for the mother's appeal to be struck out on the grounds that the appeal was not within the Tribunal's jurisdiction. SENDIST struck out the case on the basis that the pupil was above compulsory school age, was no longer a registered pupil at a school and thus no longer fell "within the definition of "child"". The Judge allowed the appeal from SENDIST's decision. He never addressed the definition of "responsibility" directly in the course of the case, but he did decide as follows:

"41. The effect of the local education authority's position in the present case is thus: if the definition of "child" in Section312 (5) is conclusive, the applicant never acquired an enforceable right of appeal to the Tribunal. The question thus is: whether, in the context in which the applicant found herself, the LEA's notice of intention to cease to maintain the statement given, as it was after JWS ceased to be a pupil at the ….school, effectively deprived her of her statutory right of appeal to the Tribunal? That does not provide the full answer to the question since Section 579 may yet come into play.

42. In the circumstances I have described, the question is: whether or not the context, as I have described it to be, requires that the words "child" be given some other meaning than the narrow definition in Section 312(5) or that contained in 579 itself? Noting, as I have, that the definition in Section 312(5) is inclusive rather than exclusive, I am driven to conclude that the context of the present case required some other definition to be given to the word "child" than that contained either in Section 312 or Section 579. Any other result would have to be rejected as being so unreasonable that Parliament and the relevant Secretary of State cannot have intended the result for which the LEA contended and the Tribunal decided.

43. "Child" in the circumstances of the present case, must mean a child who was the subject of a statement of the special educational needs at the time when the local education authority decided to given notice to determine to cease maintaining that statement. The order of the Tribunal is quashed."

24. I do not dissent from the analysis set out by Mr Justice Turner in the case quoted above. For the reasons I have set out, complemented by those he has given, in my judgment the term "child" for this part of the Act must extend at least as far as any individual under the age of 19 in respect of whom the LEA does or might owe obligations under Part IV of the Act.

The Meaning of Responsibility

25. It is clear on reviewing the decision by the Tribunal that they did not regard the statutory definition of responsibility as being fulfilled on these facts, when considering their own jurisdiction. As their letter of 31 October makes clear, in paragraph 10 quoted above, they knew that Andrew fell outside the statutory definition of this term but concluded:

"Nevertheless we feel that the LEA had taken responsibility for him during the two years that he was learning with notschool.net. We therefore regard the letter of 17 July 2006 as containing a decision to cease to maintain Andrew's statement, and although it did not contain the statutory information about the Right of Appeal, Mrs Smith had appealed with two months of that date."

SENDIST was seeking to solve the responsibility problem by applying a commonsense meaning of the term, rather than concluding that Andrew fell within the statutory definition of the term "responsible".

26. Further, in my judgment the question of the jurisdiction of SENDIST cannot easily be disposed of merely by deciding that, the individual falls within the definition of the term "child". This is because the wording of Schedule 27 quoted above turns in part upon continuing "responsibility" for the relevant child on the part of the LEA.
27. The definition of responsibility is set out in Section 321(3) which is quoted above. I will not repeat it here. It is common ground that by June 2006, although the LEA were maintaining a statement in respect of Andrew and were funding his continuing education pursuant to that statement, they were not "responsible" for him within the statutory definition. They had been "responsible" for him when he was of compulsory school age and was registered at a school. They had also been "responsible" for him, pursuant to Section 321(3) (d), when he was of compulsory school age but no longer registered at a school.
28. Thus it seems beyond doubt that when Mrs Smith wrote to the LEA in late June 2006, requesting a review of the statement and funding for Condover Farleigh College, Andrew was the subject of a statement which was then maintained by the LEA and was being educated by them. I have found that he was a "child" within the meaning of this part of the Act, but he was not a child for whom the LEA were "responsible".

The End of Andrew's Statement

29. Miss Busch for the LEA has argued that the LEA did not "cease to maintain" or "determine to cease to maintain" Andrew's statement, but that it lapsed. As a consequence, she argues that there was no "cessation" or "determination" to give rise to the parental right of appeal within the Schedule.
30. I find as a matter of fact that this argument is ill-founded. Even if there is a valid and meaningful distinction between "lapse" and "cessation", it seems to me clear on the sequence of events in late June and early July 2006 that a decision was taken by the LEA they would no longer fund Andrew's education and that they would cease to maintain a statement as to his special educational needs. The LEA were giving their minds to his position before the end of June. They had not been "responsible" for him for a year. No obligation to maintain the statement through to the end of June 2006, never mind beyond, could proceed from "responsibility". If the statement was to "lapse" once Andrew was both no longer of compulsory school age and no longer educated at a school, then it would have lapsed in 2005. In my view, this was a decision that no statement would be maintained for Andrew beyond the end of June 2006, and that is consistent with the news that was given to Mrs Smith in the meeting on 10 July. I make that finding despite the wording of the letter of 17 July quoted above.

The Meaning of Schedule 27

31. Following paragraph 9(1) of Schedule 27 to the Act, a Local Education Authority:

"…..may not …cease to maintain a statement except in accordance with paragraph …11."

However, pursuant to paragraph 9(2):

"Sub-paragraph (1) does not apply where the local education authority – (a) ceased to maintain a statement for a child who has ceased to be a child for whom they are responsible"

The literal meaning of these provisions is quite clear: the obligation of an LEA to cease to maintain a statement only in accordance with paragraph 11, requires the subject of the statement to fulfil both of two criteria within the Act: firstly, to be a child within the meaning of this part of the Act, and secondly to be a "child" for whom the LEA are "responsible" within the meaning of this part of the Act. Since on any view, Andrew does not fulfil the second criterion, the obligation to cease to maintain a statement only in accordance with paragraph 11("…..only if it is no longer necessary to maintain it") fell away.

32. Miss Busch for the LEA has argued that these provisions mean that "paragraph 11 only applies when paragraph 9(1) applies". In my judgment, that is too broad a proposition. All that is dis-applied by paragraph 9(2) is the specific obligation as to the basis for amendment or cessation of maintenance of a statement. Paragraph 11(2) does not read

"where the local education authority are responsible for a child and they determine to cease to maintain a statement…….the parent of the child may appeal to the Tribunal against the determination."

Nor is it a necessary piece of interpretation to imply those additional words into the formulation in paragraph 11(2), giving rise to the right of appeal. Mr Wolfe supports this interpretation by reference to the previous legislation and to the parallel provisions under the Education Act 1981. I need not set out the wording of those provisions here, but that earlier formulation makes it clear that the right of appeal to the Tribunal was dependent on the obligation to maintain the statement.

33. Moreover, it seems to me that there is a good policy reason for maintaining a right of appeal, dependent on the simple amendment or cessation of maintenance of a statement. The Tribunal is there to deal with specialist disputes and a number of those disputes will inevitably turn not, on simple merits (whether it was necessary to amend or maintain a statement), but on whether the individual concerned fulfils the qualifying criteria: precisely, whether the person was a "child" or was a child for whom the LEA were "responsible". It seems to me obviously desirable, if the legislation permits, that disputes as to qualifying criteria can be taken to the Tribunal for resolution, rather than to Court.
34. This approach is consistent at least implicitly with the approach taken by Mr Justice Turner in the Essex case cited above. It is consistent with the approach taken by Auld J in R –v- Dorset County Council and Further Education Funding Council ex parte Goddard (1995) ELR 109. In that case, the Judge concluded that even where "responsibility" was not made out, the Tribunal had jurisdiction to hear an appeal and indeed power to order an amendment to the statement.
35. This reading is also supported by necessary implication from the Code of Practice at paragraph 8: 123. The paragraph reads:

"Where parents want their child to remain at school post 16, but the LEA considers that the young person's special educational needs would be better met in a further education institution, the LEA cannot know whether the child still requires a statement until it has contact the FE institution in question and confirmed that it is both able to meet the young person's needs and has offered a place. The LEA should satisfy itself on both counts before taking formal steps to cease to maintain the young person's statement. At that time, the LEA must also notify the parents of their right of appeal to the Tribunal and the time limits for lodging the appeal, the availability of parent partnership and disagreement resolution services, and the fact that the parent's right of appeal cannot be affected by any disagreement resolution procedure. It is not sufficient for LEAs to have a general expectation that an FE institution should be able to meet a young person's needs."

36. That passage from the Code of Practice would be rendered misleading in many cases concerning the transition from school or the end of compulsory school age, if there was in fact no continuing right of appeal to the Tribunal, simply because the child in question was one for whom the LEA was no longer "responsible", or could be made so by an un-appealable stroke of a pen.

Powers of the Tribunal on an Appeal

37. Assuming that it is correct that the ability to appeal subsists where a child is one for whom the LEA is not "responsible", what powers can be exercised by a Tribunal in such circumstances? The necessary implication of the wording of the Schedule is that an LEA may cease to maintain a statement for such a child, lawfully, even when it is "necessary" in the child's interests to maintain such a statement. If that is not so, the dis-application of the obligation under paragraph 11(1) would be meaningless.
38. I do not intend to attempt an answer to this as an academic question. The answer on the facts of the instant case is in my judgment to be found by looking at what this LEA purported to be doing. It is clear from the correspondence of July 2006 and the way the LEA argued before the Tribunal that they were making two key points: firstly, that they had not made a determination to cease the statement in Andrew's case but that it had lapsed automatically; secondly, they argued that they were acting in compliance with the test set out in paragraph 11(1). I have already indicated that in my view the first argument taken by the LEA, namely that there was a lapse rather than a determination to cease to maintain the statement, was incorrect. The latter point appeared to me to be conceded by Miss Busch in argument by the end of the case. Mr Wolfe argued that even where an LEA no longer has a legal obligation under paragraph 11(1), if they purport to exercise their powers consistently with that obligation, it must be open to a Tribunal properly seized of an appeal and exercising the powers of an LEA – since such appeals may proceed not merely by way of review – to order the restoration of a statement. I agree with that.

Conclusions

39. It may be helpful to summarise my conclusions. As a matter of fact there was a determination by the LEA to cease to maintain a statement of the special educational needs of Andrew Smith, rather than an automatic lapse of the statement. At the time of that decision, and of the decision by SENDIST as to their jurisdiction, Andrew Smith was a "child" within the meaning of Part IV of the Education Act 1996 and Schedule 27 to the Act. However, he had ceased to be a child for whom the LEA were "responsible", within the meaning of the legislation. For that reason, the LEA were no longer under a duty, pursuant to paragraph 11(1) of schedule 27, to maintain a statement of Andrew's special educational needs so long as it was "necessary" to do so.
40. However, both as a matter of construction and for reasons of policy, the right of parental appeal pursuant to paragraph 11(2) of the schedule against an amendment on a determination to cease to maintain a statement, persists in such circumstances. Thus the jurisdiction of SENDIST is upheld, and the appeal fails.
41. In this case, the LEA had chosen to act as if in compliance with the duty under paragraph 11(1), and there had been a determination to cease to maintain the statement. In such circumstances, a Tribunal properly seized of an appeal, and empowered to conduct an appeal by way of re-hearing if necessary, must be able to address the substance and merits of the case before them, and exercise powers accordingly.