Strand, London, WC2A 2LL
B e f o r e :
| WOLVERHAMPTON CITY COUNCIL
|- and -
THE SPECIAL EDUCATIONAL NEEDS
AND DISABILITY TRIBUNAL
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190 Fleet Street, London EC4A 2AG
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Official Shorthand Writers to the Court)
Mr David Wolfe (instructed by Levenes) for the Interested Party
Hearing dates: 19, 20, 27 April 2007
Crown Copyright ©
Mr Justice Irwin :
Background and Facts
"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.
"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."
"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 30th 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 6th Form School as well as having FE College status."
"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.
"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."
"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."
"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;
"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."
"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."
The Meaning of Responsibility
"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".
The End of Andrew's Statement
The Meaning of Schedule 27
" ..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.
"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.
"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."
Powers of the Tribunal on an Appeal