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 WC2A 2LL
		14 May 2008

1.  MR JUSTICE LANGSTAFF: This application concerns the interaction of a local authority's duties to a child in care, and its duty, as a responsible public body, to comply with a direction from the Special Educational Needs and Disability Tribunal.  Compliance being necessary for, and intended to facilitate, that Tribunal's consideration of the proper education of a child with special educational needs.
2.  It raises the question whether a local authority is entitled to refuse to comply with a direction of SENDIST (as I shall call the Tribunal) on the basis that it (the local authority) considers that to do so would be adverse to the welfare of the child.  As will appear, the local authority, in this case Tower Hamlets, sees its general duty to comply with directions or orders of SENDIST, which it accepts, as being in conflict in this case with its duty to the child under the Children Act 1989.  Whether there is, in truth, any such conflict, as the local authority supposes, is a matter to which I shall later return.

The statutory background  

3.   The Children Act 1989 provides, by section 22, for the general duty of a local authority in relation to children looked after by them.  Those children include those who are in care, as is MH, the child to whom this application relates.  The duty is a duty, see subsection (3):

"(a) to safeguard and promote his welfare; and

 (b) to make such use of services available for children cared for by their own parents as appears to the authority reasonable in his case."

It is (a) which is material here. 

4.  Subsection (4) provides that before making any decision with respect to a child, whom the local authority is looking after, it shall:

"so far as is reasonably practicable, ascertain the wishes and feelings of—

 (a) the child;

 (b) his parents;

 ..  regarding the matter to be decided."       

5.  It is plain that some interaction with the actions of other public authorities in the discharge of this duty is provided for even by section 22 itself (see subsections (6) and (7)).
6.  By section 33 the effect of a care order is provided for.  Section 33(3) provides:

 "(3) While a care order is in force with respect to a child, the local authority designated by the order shall—

  (a) have parental responsibility for the child; and

  (b) have the power (subject to the following provisions of this section) to determine the extent to which

  (i)a parent… may meet his parental responsibility for him."

7.  Parental responsibility is defined by section 3 of the Act.  It is to be noted, and is common ground, that the granting of a care order does not extinguish the parental responsibility of a natural parent.
8.  Part 4 of the Education Act 1996 deals with children with special educational needs.  It provides, by section 323, for an assessment of those educational needs to be made in the light of which, by section 324, a statement of such needs is to be compiled.  Section 326 provides for the appeal against the contents of such a statement.  Subsection (1) gives a right to the parent of a child, for whom a local education authority maintain a statement under section 324, to appeal to the Tribunal.  By subsection (1)(a) it provides that such an appeal may be against any of the following:

"(a) the description in the statement of the local education authority's assessment of the child's special educational needs;

(b) the special educational provisions specified in the statement including the name of a school so specified;

(c) if no school is specified in the statement, that fact."

9.  By subsection (3) a Tribunal, which is SENDIST, under Part 4, is given powers to dismiss such an appeal, to order the authority to amend the statement in certain respects, or to order the authority to cease to maintain the statement.
10.  The Act envisages that there will be disputes between local authorities and parents. It must, in my view, be assumed that Parliament had in mind that the local education authority would, as a proper authority, be acting in what it thought was the best interests of the child concerned, and was providing that the arbiter, so far as the contents of the statement, and the consequences that would flow from those contents, was to be the SENDIST provided for by sections 333 to 336A of the Act. 
11.  Section 336 I should make specific reference to.  It provides for regulations to be made and precedes section 336A, which is headed "Compliance with orders".  Although it might appear that where a Tribunal made an order section 336A imposes a statutory duty upon a local education authority to comply with it, I am satisfied, following argument, that what this in fact provides for is a framework under which the time for a local authority to comply with orders, so specified, is to be set out.  The assumption underlying the section is, however, clear that in all cases a local authority, as a responsible public body, is expected to, and will, comply with the directions or orders of SENDIST in any matter which is properly within the competence of that Tribunal.
12.  The interaction of the Children Act, and the provisions for appeal contained in the Education Act, fell for consideration by Laws J in the case of Fairpo [1997] 1 FLR 339.  At page 345 the judgment records a submission made to the court that by virtue of section 33(3)(b) of the Children Act a local authority was empowered to prohibit a natural parent from mounting an appeal to the predecessor, as it was then, of SENDIST.  He said this:

"I doubt whether that proposition is correct.  Section 33(3)(b) clearly allows a local authority to whom a care order has been made to restrict the extent to which a natural parent may perform the functions described in s 3(1). But I am not persuaded that the right of appeal under s 169 of the 1993 Act [that is the predecessor of the Education Act with which we are here concerned] is within the collection of rights and other functions referred to in s 3(1), which I take to be rights and functions directly to control and regulate the child's upbringing, conferred by the general law.  An appeal under s 169 is not on the face of it within any such category. The parent asks the tribunal in effect to reconsider a determination by a local education authority about the child's education.  In doing so he or she is not, as it seems to me, making a decision which itself directly affects the child's education, and is not I think exercising a function conferred on him by the general law concerning the relationship between children and parents as it is described in s 3(1). In addition one would expect Parliament to use clear words if it intended to permit a local authority to deprive a parent of what otherwise is his plain statutory right of appeal to the tribunal."

13.  That expression of principle, so far as counsel are aware, has never been doubted judicially.  It was applied by Munby J in the case of X County Council v DW, PW and SW [2005] EWHC 162 (Fam).
14.  Laws J in Fairpo did not go on to consider section 33(9), to which I now turn.  It will be recalled that section 33(3) is expressly subject to the following provisions of section 33.  One of those is subsection (9).  It provides:

"(9) The power in subsection (3)(b) is subject … to any right, duty, power, responsibility or authority which a parent or guardian of the child [I should add that includes a natural parent] has in relation to the child and his property by virtue of any other enactment."

15.  One of Mr Presland's (who appears for the local authority) less attractive submissions was that Fairpo was wrongly decided, but if it were he confessed to have no satisfactory answer to the submission that section 33(9) should, in that event, inevitably apply.  He accepted it appeared clear from its terms that it would cover the position of a natural parent.
16.  The final point of law I should deal with before turning to the facts is to note that the scope of the consideration, which SENDIST may have, has been the subject of some judicial decision.  In the case of W v Leeds City Council and Special Educational Needs and Disability Tribunal [2005] EWCA Civ 988, the court agreed that the jurisdiction of SENDIST was such that that Tribunal was permitted to take, and should take, an holistic approach to the needs of the child, whose educational needs they were specifically considering.  Thus in the judgment of Judge LJ, at paragraph 43, is said this:

"Rather than repeat Wall LJ's observations on this aspect of the case using my own words, I shall simply record my full agreement with him about the imperative, that so far as possible within the relevant statutory frameworks, a holistic approach should be adopted by the various bodies with different responsibilities for C.[C being the child]."    

17.  Those observations by Wall LJ, to which he was making reference, were these at paragraph 51:

"51. In a case such as the present, the Tribunal, in my judgment, had to tread a delicate line between properly informing itself of the "full picture" relating to C, and limiting its decision to a careful assessment of C's special educational needs within that full picture. In my judgment, this is what the Tribunal  conscientiously attempted to do; and accordingly, unless it has committed an error of law in that process, it is not the function of  either the Administrative Court, or of this court, to interfere.  For the reasons Judge LJ has given, I do not think that any such error of law has been established."

18.  He made those observations having indicated that a child's special educational needs (see paragraph 50) simply cannot be viewed in isolation, nor can his section 17 needs, nor can his need for services provided by the health authority and CAMHS. An holistic approach is necessary and inter-agency co operation essential, particularly since two of the bodies with statutory responsibilities, therefore C (that is the LEA) and the Social Services Department, are part of the same local authority.
19.  That latter point needs to be stated in case it is overlooked.  I am told by counsel, who have considerable collective experience, that, in almost every case that they can conceive of, the local education authority and the Social Services Department, exercising the practical responsibility of the local authority for a child in care, will be one and the same public authority.

The facts

20.  MH is now 12.  He was born on 24 March 1996.  In 1998 his mother (the claimant) fell ill.  On 9 December 1999, a care order was made in respect of MH and his sister.  Whilst accommodated under the terms of that order with his mother, he and his sister ran away from home in 2005 and were taken into residential care.  As he approached the age of 11, at which stage a change of school was to be anticipated, the local education authority, which was the same authority as that exercising care responsibilities, sent a revised Statement of Special Educational Needs to the claimant.  It advised the claimant that she had a right to appeal against its contents to SENDIST.  It did not seek to tell the claimant that she had no such right, or that the local authority was purporting to exercise any power, which it contended it had under section 33(3) of the Children Act, to restrict what might otherwise be her right; rather it told her she had such a right.
21.  On 4 March 2007, she exercised that right and appealed against the content of the statement.  Her concerns were, in particular, threefold: first, that the statement did not specify and quantify the nature and extent of one to one class assistance, which MH was to receive; secondly, it did not provide for any speech and language therapy (though, in her eyes, his ability with communication had been a matter of concern); thirdly, she disagreed with the school placement, which the local authority had in mind.
22.  She applied to the High Court, before Tower Hamlets responded to that appeal, to revoke the care order that had been made in 1999.  That application came before Mr Recorder McCarthy QC. In his judgment, delivered after hearing two and a half days of evidence, on 20 April 2007, he first drew attention to the fact that there had been an application to adjourn the application before him.  That was on the basis that the mother wished to gather more information from professionals, with, as the Recorder thought, no certainty of outcome.  He refused that application. 
23.  His judgment speaks for itself, but in particular, I mention that he indicated, at paragraph 46, that he had before him reams and reams of material as to the parenting problems which the claimant had had.  When it came, however, to dealing with the child's educational needs, he confessed (see paragraph 50) that he did not have quite the same amount of information.  He expressed the view that the children, one of whom was MH, needed a consistency of approach from someone who did not impose her wishes upon them (see paragraph 62), and was plainly of the view that the claimant, as mother, was overprotective, to an excessive degree, of her children.  He was told, and recorded the fact, that there had been an assessment of MH's educational needs by the mother's psychiatrist in the sense that a psychiatrist was instructed by the mother in 2005.
24.  At paragraph 91 he said this:

"I am satisfied from the available evidence the children now need to be given the peace and security, which they deserve after the last year of uncertainty about what is going to happen. In this respect I also look at the children's educational circumstances.  I have been invited to consider by the local authority what is to be said about this.  Inevitably there is a limit to what I can say, but I am not a SENDIST chairman, and I do not have all the evidence which the parties might wish to put before an appeal."

[I note that in this case Tower Hamlets has now on three occasions sought to raise issues before a Tribunal, which is not formerly seized of those issues, and when it may be thought that it is inappropriate to invite the Tribunal, before whom the application is made, to consider it.  This is the first such occasion. The second, as I shall describe, is when an appeal was dealt with before the Court of Appeal and the third has been before me. If, it seems to me, there is something to be said about the proper contents of a Statement of Special Educational Needs and how that is to be decided, it seems to me that the proper Tribunal for that, as provided by Parliament, and as the statutory scheme that I have set out indicates, is SENDIST.]  Anyway, I return to what the Recorder said:

"But I do say that on all the available evidence, the local authority's proposals for the children's education appear to be eminently sensible."

25.  He returned in greater detail to deal with education between paragraphs 93 and 96 of his judgment.  At paragraph 105 he considered an application made to him by Mr Presland, on behalf of Tower Hamlets, to the effect that a section 91(14) order should be made restricting the mother's right to make further applications in respect of the care of the children.  He declined to do so, but thought it proper to proceed to consider whether or not he might nonetheless make an order in respect of the education of the child, having been told that it was the intention of the mother to seek a report from a professional instructed by her, or on her behalf, other than Katherine Dyer, who had hitherto responsibly and professionally looked after the educational interests of MH from a psychological point of view. 
26.  He commented at paragraph 106 that it was quite clear from the available evidence that MH did not need, and would not benefit at present, from a further assessment by an educational psychologist.  He could see no basis upon which that would be necessary because the evidence was so clear about his needs.  He said:

"I can find no evidence at all on what I have read and heard that it would be necessary or appropriate for a speech and language therapist to be instructed.  I can find there is no reason to think, as things stand at present, that MH has difficulty with his speech and language."

Paragraph 107:

"On the available evidence I agree with Katherine Dyer's advice to me that to submit MH to further assessment of this sort would be intrusive, unnecessary and abusive.  It seems to me that to allow such applications for the foreseeable future would be contrary to MH's welfare. And I think it therefore in MH's interest, given the amount of uncertainty in the past and the number of assessments there have been in the past, to impose an extra hurdle in the way of any attempted assessments of him for these purposes.  I do not prohibit, of course, such assessments absolutely, but I intend to control them and make sure there can be no question of such assessments being authorised unless the court has given permission for an application to be made."

Those last words beginning with "unless" should not be overlooked in the history of what follows.

27.  He, therefore, made a section 91(14) order restricting any application by the mother for an assessment to be made by an educational psychologist for a period of two years, and for a speech and language therapist for a period of five years.  In each case, of course, without the permission of the court.
28.  Acceptance by him of Katherine Dyer's advice that a further assessment would be intrusive, unnecessary and abusive, coincided with the view which Tower Hamlets had responsibly formed.  As to the 91(14) order, which he purported to make, the Court of Appeal subsequently held, on 25 October 2007, that the Recorder had no jurisdiction to make such an order in this case.  It appears from the judgment of that court ([2007] EWCA Civ 1550, at paragraph 15), that a submission was made to the court that it should, in some way, adjourn the appeal to the court so as to leave a peg for an early appeal to the court from proceedings which might have to take place in the Administrative Court relating to a decision, which had by then been made by SENDIST.  This is the decision to which I shall return and is central to the case. 
29.  It is plain that what Mr Presland was seeking, on behalf of Tower Hamlets, from the Court of Appeal was some indication of that court's view, and, if possible, a determination of the validity of the request direction which SENDIST had made, which this case centrally concerns.  It should be noted that in response to that request, the Court of Appeal politely declined.  Indeed, it was said in the judgment of Holman J that:

"If other, wider issues later arise as to the appropriateness of SENDIST hearing an appeal by the mother at all, then clearly SENDIST may require to be heard on those issues…"

30.  It seemed to him that they raised a much wider canvas than anything currently before the Court of Appeal.  He, for his part, would have strongly resisted saying anything at all which in any way affected or impacted upon any of those wider issues.
31.  At paragraph 19 he dealt with something of the background in these terms:

"There is absolutely no history here of the mother making applications which are not open to her within the framework of the Children Act. It seems to me that the section 91(14) direction was not one that it was properly open to Mr Recorder McCarthy to make. It is, in my view, something of an embarrassment, or irritant generally in this case, because it may appear to convey the exercise by the family court of a power to restrict assessment of the child which the family court, acting under the Children Act, simply does not possess."

He therefore allowed the appeal.

32.  The point taken as part of his submissions before me by Mr Presland, that the Court of Appeal said nothing critical of the general merits of the reasons which Mr McCarthy had for making the order he did, does not seem to me to have any real force, given the fact that the Court of  Appeal so obviously dedicated its decision to resolving the point of law which in fact arose, and declined an invitation to explore any wider issues.
33.  I have dealt with the hearing before the Court of Appeal out of turn in reciting the chronology. 
34.  After the hearing in April 2007 before Mr Recorder McCarthy, but before the Court of Appeal ruling, the London Borough of Tower Hamlets responded to the appeal made by the claimant to SENDIST.  It was prepared to make some amendments to the statement of educational needs.  However, in a letter of 8 May 2007 Tower Hamlets said that the claimant and her solicitors would not be able to obtain the report by a speech and language therapist, which they had wished to put before SENDIST. The explanation for that was the views expressed by the Recorder at the hearing in April.
35.  The matter came for decision by SENDIST on 10 July 2007.  There were full written submissions.  There were full oral submissions.  It is plain that very much in issue was whether Tower Hamlets would comply with any order made by SENDIST requiring the assessment of MH.  The Tribunal was Simon Oliver.  He noted, at paragraph 21D, that Mr Recorder McCarthy had been considering an application to discharge a care order and had considered the education aspect as an aside.  At E he noted that the SENDIST proceedings were dealing with a full review of MH's Statement of Special Educational Needs, and it could not be assumed, or presumed, that the statement, as drafted by the local authority, was perfect.  Having observed, as was plainly right, that it did not follow that a Tribunal would abide by the views of any expert whose report was obtained, it said, as was also accepted to be right, that without expert evidence obtained by the claimant the Tribunal would not be able to undertake the comparative assessment, which it was necessary to do.  It led to this paragraph at H:

"I can see no justification for the decision by the LA to refuse to make MH available for assessment. I appreciate that it is never good to have an individual assessment by too many experts, but I am sure that those who undertake this work will be sensitive to this.  I am also aware that the request for these assessments does not come from an unrepresented parent but has been made by two very experienced specialist education solicitors. They would not have sought these assessments unless they thought them to be necessary.  In other words, I do not see this application as being made by a 'loose cannon' parent simply 'having a go' to upset the local authority but rather as part of a professional preparation of a case."

36.  It is therefore plain to me, particularly when one considers the written arguments which were put before the Tribunal, to which this paragraph appears to be a response, that it was very much in the mind of Mr Oliver that to make an order, or direction, requiring that the local authority made MH available for assessment might have the consequence that he was making an order which was intrusive, unnecessary and abusive.  It seems to me that he dealt with each of those three potential complaints as to the effect of the order.  Whether it was necessary or not, he answered by saying that it was, in order to enable SENDIST to perform its statutory function. 
37.  Intrusive such an assessment inevitably will be. As to whether it was abusive was the principal concern in H, and it is plain that he directed his mind to it, and came to a conclusion which, subject only to perversity (to which I shall come later) was open to him.
38.  At the conclusion of his reasoned decision, he made an order, paragraph 4 of which read as follows:

"Notwithstanding the order of Mr Recorder McCarthy QC, I direct that the local authority do make MH available for an assessment by both a clinical (or educational) psychologist and a speech and language therapist within 21 days of the date of this decision."

39.  Tower Hamlets refused and refuse to comply with that direction.  Why do they do so?  By evidence filed as late in these proceedings as 12 May, its Head of Special Educational Needs said in paragraph 4 that: 

"The local authority children's services officers in both the education and social care services were of the view that it would, in the circumstances of MH's case, be intrusive, unnecessary, and abusive to subject him to further educational psychology and speech and language therapy assessments.  That view has been consistently maintained and is the basis upon which the local authority, whilst intending no disrespect, has not complied with the direction made by SENDIST here for further assessments.  Our considered view is to do so would, in MH's case, conflict with the local authority's duty to promote the welfare of children in its care."

40.  I both record and recognise that no one in these proceedings has queried at all the good faith of Tower Hamlets, or their professionalism in coming to that conclusion, nor the extent and depth of their concern for the best interests of MH.  The question before me is whether that was a proper and sufficient basis upon which not to comply with the order, which had been made.  It amounts to an assertion that the local authority knew best.
41.  As to the issues before me, it was accepted, if a little reluctantly, that as Munby J said in the X County Council case (see paragraphs 15 to 18), the Family Court could not dictate to SENDIST.  That would have applied if the order by Mr Recorder McCarthy had been valid.  If it had been, his order could have had no effect upon SENDIST in the sense of precluding any decision, which it might have made, though SENDIST would wish to take it into account.  It might be, as strongly hinted at by Munby J in those paragraphs, that if the SENDIST chair failed to take it into account it might be in error of law in these circumstances.
42.  The local authority, nonetheless, maintains that it is entitled to reach its own conclusion and to rely upon that effectively to emasculate the claimant's right of appeal to SENDIST by refusing an opportunity for the assessment.
43.  Since the claim made here seems one capable of obvious resolution, in that a public body has failed to comply with an order, or direction, made by another responsible public body entrusted with the task of dealing with the educational provision for a child with special educational needs, I called upon Mr Presland to justify the stance which the local authority had taken. 

The case for the defendant 

44.  The grounds of resistance are discursive in setting out the views, which the local authority had, and the basis for them, in concluding that MH's interests are well served by his present educational arrangements and that to interrupt them, in any way, would not be to his benefit.  It should be noted that the litigation friend, through counsel before me, adopts and supports those views.  But at paragraph 20 of the grounds of resistance Tower Hamlets took the preliminary point that the parent of a child in care should not be able to appeal to SENDIST without the support of the local authority.  This may seem a strange view, if one considers that it is suggested that the local authority would support an appeal against what was its own decision.  However, the theoretical basis for it was that Fairpo had been decided wrongly. 
45.  In paragraph 23 it was said that there was support for a review of the Fairpo case, given the greater understanding that there now is of the extent of parental rights and responsibilities, as indicated by the case of Re Z (A Minor)(Identification: Restrictions on Publication) [1997] Fam 1 at 26. Secondly, it was argued that the decision, which SENDIST came to here, was perverse.

Considerations

46.  There has been no appeal of any form by Tower Hamlets against the direction given by SENDIST.  There has been no application for judicial review in respect of it. Such an application was open to Tower Hamlets. It considered making such an application.  It did not pursue it.  Rather the attempt, which I have described above, was made to ventilate the issues generally before the Court of Appeal in a different context, no doubt for reasons of economy of effort.  However, there has been no appeal.  The starting point, therefore, for me is that there has been an order, or direction, which is both valid and rational on the face of it.
47.  Mr Presland has invited me to determine, as relevant to these proceedings, whether indeed Fairpo was wrongly decided, and whether or not section 33 permits, or prohibits, a local authority from preventing a natural parent pursuing an appeal to SENDIST, and whether SENDIST's decision was perverse.
48.  It does not seem to me that this is an appropriate forum in which to invite a court to do that.  If a local authority thinks that a decision that has been made in legal proceedings, to which it has been a party, materially affects their interests, or the interests of those they are bound to represent, adversely, then that local authority should exercise such rights of appeal as are open to it.  It has not done so in this case.  Accordingly, I do not regard it necessary for my decision to deal at all with the arguments in respect of Fairpo and perversity. 
49.  At the conclusion of the oral submissions in this case, indeed as judgment was about to be delivered, Mr Presland raised a further ground of objection to the validity of the SENDIST order.  He argued this: the Tribunal is statutory.  Its powers are derived therefore entirely from statute.  Regulation 21 of the Special Educational Needs Tribunal Regulations 2001 provides that a president may give such directions, as are provided in regulations 23 and 24, to enable parties to prepare for a hearing, or assist the Tribunal to determine the issues.  Regulation 23 relates to the giving of particulars and supplementary statements. Regulation 24 relates to the disclosure of documents and other material. Regulation 24(1)(a) provides for the giving of directions requiring a party to deliver to the Tribunal any document, or other material, which the Tribunal may require, and which it is in the power of that party to deliver. 
50.  He suggests that the direction given by the president of this Tribunal did not fall within any of the powers, and, in particular, not that power to which I have just made reference.  As I have indicated, the starting point for me is a decision, which, on the face of it, is valid and  rational and has not been subject to appeal, as it might have been. Upon the same basis it seems to me unnecessary to determine this point either, as I do not think it necessary to determine the Fairpo or perversity point.
51.  I have, however, been encouraged by Mr Presland to make such observations, as might be helpful to the local authority, as to these particular issues. Indeed, the Equality and Human Rights Commission was given leave to appear, because it anticipated that an argument was to be made that section 33 was to be construed such that a local authority could prevent a natural parent of a child in care pursuing an appeal before SENDIST.  Miss Mountfield, who in admirably succinct submissions has developed that case before me, submits that would be an interference with the Article 8 rights of mother and child, and would represent a discriminatory interference.  The child in care would have a distinction drawn between it and a child not in care as to access to the rights of appeal in respect of education, in a situation in which being in care had no relevance to the issue to be resolved, such as to be a discriminatory difference, because the two would be in a relevantly similar position.
52.  I shall come back to those submissions in due course.  Suffice it to say that in the light of that invitation, though with some reluctance, I shall express my views, though obviously obiter, as to the three points I have been invited to consider.
53.  It seems to me first that Fairpo is plainly rightly decided for the reasons which Laws J gave, which have not since then been questioned, save, so far as I know, in these proceedings.  Second, it seems to me that section 33(9) is, in any event, conclusive as to the point raised, and it will be noted that Mr Presland had no answer to it.  As to perversity, the test which has to be applied is whether or not there was any material upon which the Tribunal could come to the decision it did, and whether it was so outrageously wrong as simply to be an impermissible decision. 
54.  It seems to me, shortly, that SENDIST was fully entitled to come to the view it did. I accept the submissions of Mr Grodinsky to that effect. It considered the points put before it. It had before it the judgment of Recorder McCarthy, and, in any event, it should be noted that that Tribunal was not restricted in the scope of its consideration to what might be described as purely educational matters, given the W case, to which I have already referred. It was entitled to, and in this case did, take an holistic approach.
55.  Although I have no direct evidence other than that which Mr Presland, who was present, has been able to give me as to the hearing before SENDIST, and there may be some doubts as to its strict admissibility, he does not suggest that there was any reasoned basis, beyond that which appears in the judgment, for the view which Mr Recorder McCarthy expressed, that to carry out further assessments would be invasive, unnecessary and abusive.  If it is asked whether by "abusive" Mr Recorder Mc Carthy QC meant something which was capable of doing mental or physical harm to the child directly, rather than abusive in the sense in which it appears to have been taken by the Tribunal (and therefore I conclude advanced to them) namely that this was a question of repeated application, which was not needed, since there had been sufficient investigations and assessments previously, then the answer is that this view of "abusive" is without foundation. 
56.  There is no basis that I can see in Mr Recorder McCarthy's judgment for thinking that the process of such an assessment would cause any actual harm to the child.  I am commenting merely upon the apparent absence of evidence, to that effect, before SENDIST.  In any event, in paragraph H, to which I have referred, the president of SENDIST dealt with the potential of risk to the child in a way which I cannot see is perverse.  
57.  In short the direction, subject only to the rules point which emerged at the very last moment of the day before me, was one which he was fully entitled to make.
58.  As to the rules point, I would have wished further argument before expressing any concluded view upon it.  It seems to me that there are some difficulties for a Tribunal given the wording of the rules. However, in so far as I have a view, which as I indicate is not material to the conclusion of these proceedings, but I express because invited to do so, it would be that regulation 24(1)(a) is capable of being construed as permitting directions, which are necessary to ensure the delivery to the Tribunal of any such document, or material, as being within the power of the party, who should secure the provision of that material, to provide.  Thus, my preliminary view is that the rule permits a direction such as was made. Indeed I note that, despite the considerable experience that there was before the Tribunal, it does not seem to have been queried until the thought occurred to Mr Presland at the short adjournment today.  However, if the point arises again it may benefit from more detailed and considered argument.
59.  I take into account, in coming to the conclusions upon the application proper which I do, the views expressed to me by Miss Mountfield, on behalf of the Equality and Human Rights Commission.  As I have indicated, these are directed mainly towards the force and scope of section 33.  She points out, and I accept, that a natural parent has, by European authority, the right to access the court in respect of a child (see Scozzari and Giunta v Italy [2002] 35 EHRR 12 at paragraphs 138 to 139 and PC and S v the UK and SP,DP and T v the UK [1996] 22 EHRR CD 148). 
60.  She submits to me that the effectiveness of Article 8 of the Convention, that everyone has the right to respect for private and family life, requires that there should be proper procedures if there is to be any interference with it, so that that interference may be queried or resisted.  To give the decision maker (the local authority) the right to pre empt a challenge before a body set up by public authority to determine such issues, is to deny any effective operation of Article 8, because it represents an interference with proper procedures. 
61.  She argues that the right to education is interfered with because a child in care cannot have access to an appeal (if the local authority's contentions here are right) through its parent, unless that local authority permits it, whereas a child who is not in care can.  The difference, which is that one is in care, is not, in system terms, a relevant difference, is therefore prima facie discriminatory and needs justification.  There can be no justification where there is the possibility here of a carte-blanche refusal. 
62.  It seems to me these are powerful arguments, which again it is unnecessary for me to determine, having come to the view I have already expressed in respect of section 33, which is, in any event, unnecessary to my final decision.   If I had to express a view upon them, I would think that those points are well taken.

Submissions

63.  As the argument proceeded, at one stage of Mr Presland's defence of the claim he appeared to suggest that what was really in issue, if the court was not prepared to deal with the direction made by SENDIST as being other than a valid and effective direction in the absence of any legitimate challenge to it, was an invitation to the Court to exercise its discretion in terms of relief.  If so, this submission implicitly involves his acceptance that in the absence of the formal challenges (as I shall call them) to SENDIST's decision making, the local authority would be bound, acting properly, to comply with the direction. 
64.  However, in deference to his submissions more generally, I should deal with the point, rather than let it go by such a possible concession.  First, Parliament has set up a statutory scheme for the determination of the contents of educational statements, which have the consequences provided for in the Education Act.  I have no doubt that Parliament did so because it considered such a scheme was in the best interests of the general welfare of those children to whom it would relate.   Parliament has also enacted a scheme within the Children Act for the care of children.  That too sets out the general welfare of the child as a primary consideration. 
65.  But section 22 of that latter Act, upon which the local authority here relies, is general.  The educational best interests of a child, ie its welfare, where that child has special educational needs, are to be dealt with, so Parliament provides, in the event of dispute, by SENDIST.  It has set up specific machinery to deal with the best educational interests of the child.  It seems to me that if there were any dichotomy between the SENDIST and section 22 of the Children Act, the fact that SENDIST is specific to education would suggest to me that so far as the educational interests of the child are concerned, a direction of SENDIST should be complied with in any event.  It does, however, seem to me that the general statutory scheme is that the educational welfare of a child is, in those respects, which it is empowered to consider by statute, a matter for SENDIST. 
66.  It follows, therefore, that a local authority, if it is to comply properly and legally with its duty under section 22, must recognise that its duty is to abide by the direction of SENDIST.  If a local authority, charged with the duty to safeguard and promote a child's welfare, is subject to a direction from SENDIST, it has to regard compliance with that direction as being the way in which it should properly safeguard and promote the child's welfare.  There is, in truth, as it seems to me, no conflict between section 22 and the provisions of the Education Act if it is understood that the safeguarding and promoting the welfare of the child involves, and includes, accepting the directions of the body set up specifically by Parliament to attend to those issues.  It is not, it follows, to be complied with by rejecting the direction of SENDIST. 
67.  In short, rather than safeguarding the welfare of the child by declining to accept and adopt the direction of SENDIST, Tower Hamlets were doing exactly the opposite and were failing in their duty, as it seems to me, to safeguard and promote this child's welfare as Parliament required.  This is not to say that Tower Hamlets recognised that that is what they were doing, but it seems to me that that is the effect of the statute.
68.  In short, the direction of SENDIST was one to be complied with by a responsible public authority with regard to the child, and not to be defied.

I turn to relief 

69.  I am invited by Mr Presland, in impressive and sustained submissions, to have regard to the view formed conscientiously by Tower Hamlets, that the best interests of MH would not be served by the further assessments which SENDIST has directed.  In short, he gives these reasons: that there were independent assessments (that is independent of the local authority) conducted in 2005, and that there was much material before the Recorder, which has not been put before SENDIST.  The Recorder's views are clear, forceful and entitled to respect.  They were not disputed when the matter came before the Court of Appeal.  Anyway, the decision of the Tribunal, though it was not appealed,   could have been, and the absence of such an appeal, should not be held against the local authority when it comes to consideration of relief here, which is discretionary.  It could have been appealed successfully upon any of the three grounds, which I have mentioned. 
70.  There are dangers to a child in the simple act of going through such assessments, and those are set out in the judgment of Mr Recorder McCarthy. 
71.  It is submitted to me by Mr Wolfe, on behalf of the claimant, that this is not a matter which I should decide here.  He reminds me that the appropriate body to make a determination as to whether such assessments are intrusive, unnecessary and abusive, and therefore ought not to be undertaken, or whether they are, on balance, desirable in the interests of the educational welfare of the child, is SENDIST.  If I do not think that there is any reason in law to interfere on any appellate basis with the decision that SENDIST has reached, then I should not second-guess that decision. 
72.  I should add that in this area too I was given further and late material, in that I was presented with a further report from Katherine Dyer, the educational psychologist, which shows that in her view the present educational provision for MH is entirely appropriate.  I was entitled to have regard to this report, and to her view that it was unnecessary, abusive and intrusive for there to be further assessments in exercising my discretion when it comes to relief here. 
73.  I have no doubt as to the professionalism of Miss Dyer. I recognise that the decision, to which SENDIST may ultimately come, may very well be a decision that she is entirely right. It may be that such independent assessments, as are made, confirm her view yet again. I do not see it is for me here to second-guess SENDIST.  I accept what Mr Wolfe submits to me, that that body is the appropriate body to make this determination.
74.  I do not think it right, therefore, to exercise my discretion here in such a way as would inhibit or prevent that order, hitherto unchallenged in its general legality, in any proper way, from taking effect. 
75.  MR JUSTICE LANGSTAFF: Those are my reasons. What is the relief you want? 
76.  MR WOLFE: The relief we want is set out in the N461 at page 3, bundle A, at section 6:

"A declaration… (read into the words)… that the defendant comply with the Tribunal's order."

Also I would ask for my costs to be assessed, if not agreed. 

77.  MR JUSTICE LANGSTAFF: Mr Presland, can you resist those?
78.  MR PRESLAND: My Lord, given the terming of the order, perhaps it ought to be phrased as a direction rather than an order.
79.  MR JUSTICE LANGSTAFF:  I think that is probably right.
80.  MR WOLFE: Yes.
81.  MR JUSTICE LANGSTAFF:  It does not perhaps matter, because paragraph 4 of an order is what it purports to be.  In case of any further doubt, certainly.
82.  MR PRESLAND:  Regarding a time scale for compliance, may I ask for 21 days?
83.  MR WOLFE: I had not thought it necessary to suggest the time scale because the Tribunal's order itself had a time scale, and by implication let us clarify it, if necessary.
84.  MR JUSTICE LANGSTAFF: That was 21 days, was it?
85.  MR WOLFE: That would run from today. 
86.  MR PRESLAND: (Instructions taken) I am terribly sorry, my Lord. I was receiving instructions on a particular point.  I missed what was being said.
87.  MR JUSTICE LANGSTAFF:  What was simply being said was to confirm that 21 days seems appropriate.  Before I ask you finally to respond on costs, are there any other applications?
88.  MR GRODINSKY:  I apply for the SENDIST costs.  These proceedings, whether appropriately, or, as my Lord has found, inappropriately used as a vehicle for challenging the lawfulness of the Tribunal's directions, have been used for precisely that purpose. Had the London Borough of Tower Hamlets properly brought an application for judicial review of the SENDIST's decision, and had they failed, as in my submission they would have done, there is no doubt that the Tribunal would have been entitled to its costs. In those circumstances the only fair order is for the local authority to bear SENDIST's costs. 
89.  MISS MOUNTFIELD: My Lord, I want to emphasise that it is not the Commission's general policy to seek its costs on interventions. It does not seek to take sides in individual cases.
90.  MR JUSTICE LANGSATFF: There is a "but" coming somewhere.
91.  MISS MOUNTFIELD:  It is representing a broader statutory interest. I recognise also that there is a general presumption against two sets of costs. The Bolton case in the House of Lords says that if is there is a second set of costs it must be shared by those who come for their second set of costs.  In the particular circumstances of this case (this is my "but"), I do seek at least a share of the Commission's costs because had it been made clear that this was not an assault on the Fairpo case, this was just a question about the rationality of this local authority's exercise of discretion in the case, the Commission would not have gone to the trouble of instructing the country's leading expert on children in care and education. It would not have gone to the trouble of intervening in the case. It is of course on the Commission's budget. The fact that we're  all publicly funded makes no difference to that.  The Commission has a duty to protect its own budget. I would therefore ask that we get a proportion of our costs for intervening in these particular circumstances.
92.  MR JUSTICE LANGSTAFF:  Mr Presland, what do you say?
93.  MR PRESLAND: May I come back, in a moment, to a very few detailed corrections to the terms of the judgment. In relation to costs, save to say that the local authority's resources are limited, it is an order for public funds policy (?) served against the public funds.   There is little I can say, save that costs may ordinarily follow the event.  It is clear that at the outset in the SENDIST proceedings,  at the time of the consideration matter in July, both parties anticipated that there would be this application.  It is right to say on the basis of your Lordship's judgment, and the comments, that the local authority, had it brought its own judicial review proceedings, may not have succeeded.  But there was a wider public interest, I would submit, in these proceedings being aired.  If your Lordship felt it were not appropriate for the local authority to bear the totality of the claimant's costs, I would (inaudible).
94.  As far as the position of SENDIST, they are here as interested parties and costs should follow the event in relation to the claimant. They have been here.  Their position has been sustained.  Again, it is perhaps difficult to say costs ought not to follow the event.
95.  As far as the Human Rights Commission is concerned, may I make clear that if one looks at the terms of the local authority's grounds for resisting the application for judicial review, which is in bundle B, page 12, paragraph 24, the local authority did flag up the consideration about section 33(9)--
96.  MR JUSTICE LANGSTAFF:  You very fairly drew my attention to it.
97.  MR PRESLAND:  That has been flagged up as well before Mr Oliver in the submissions before him.  That was there for the Human Rights Commission to read, having been joined as parties of the proceedings.  The local authority was not aware, until it was served with the professor's report, that this was a course that the Commission was going to take.  Indeed, there has been a very significant body of material placed before the court, that does not go directly to the issues upon which your Lordship has had to determine by the Tribunal.  In particular, the expert evidence has not been dealt with one way or the other.  It is unusual to have expert evidence in such a case.  The local authority's, as far as she relates to facts about the background concerns for the educational provision of children in care, shares the concerns that these have been the expectations.
98.  MR JUSTICE LANGSTAFF:  You are submitting that it was not necessary for the Commission, in the context of this case, to have gone to the expense of getting the report of Professor Jackson, however compelling it may be?
99.  MR PRESLAND:  Indeed, if they looked at section 33(9) they may have found that there was a pretty irrefutable case to answer in relation to that.  The concern was that having highlighted that both before Mr Oliver and in these proceedings, that Fairpo, in so far as it relates to the interpretation of parental responsibility, was out of line with a wide range of subsequent authorities.  Your Lordship has held that Laws J's decision was not wrong. That, in itself, is perhaps a helpful clarification. In any event, section 33(9) would seem to be a complete answer.  It did not require the extent of input that has come from the Commission.  The Commission has a statutory role to play. They are entitled to intervene in proceedings.
100.  MR JUSTICE LANGSTAFF:  What do you say are the principles that should inform my decision on costs, so far as the parties, other than the claimant, are concerned? 
101.  MR PRESLAND: In my submission the question is: did the local authority here invite the Commission to intervene? No, it did not.  We did not oppose their intervention. We did not wish to be difficult.  If they had a position to put forward, it may well be that it is one that helped the court.  The role that they elected to take is a matter for them.  It is a matter for your Lordship as to whether that is reasonably directed towards the case, which was before the court in these proceedings.  It is a matter for your Lordship as to whether, rather than the ordinary position of the Commission that they do not seek costs and seek to be neutral, that this is a case where it is appropriate for them to be awarded costs.  Essentially they will be achieving a benefit at the expense of the same budget, which is providing for the very children whose interests they are seeking to protect.  That seems an odd way of setting about things. 
102.  If this were a case where the local authority, bona fides, were drawn into question, that may be a case to consider the costs. This is not such a case.  Your Lordship made that clear. 
103.  MR JUSTICE LANGSTAFF:  I have to say I regard the local authority's approach here as being one in which they have been seeking, through you, some guidance from the court as to quite how their duties under the Children Act relate to a voice such as SENDIST.  I hope they may have had some of that. 
104.  MR PRESLAND: Certainly the judgment is full.  In terms of whether the local authority ought to pay any of the costs of the involvement of the Commission, in my submission no it should not.  It is not an exceptional case where the local authority has acted wrong and without good faith.
105.  MR JUSTICE LANGSTAFF:  The principles which are relevant are these? First of all, your submissions are that the loser should pay; secondly, you say so far as the Human Rights Commission is concerned, that it was not necessary to provide the report of Professor Jackson, and they might well have not intervened had they read paragraph 24 of your grounds of resistance and considered its implications.  That is relevant, you say.  You invite me to consider, on the discretion as to costs, that the money is public money.  Have I missed anything?
106.  MR PRESLAND:  Also the delay fact to whether it would be appropriate to order, for example, the local authority to pay the costs of the intervener had the local authority not been acting in good faith.
107.  MR JUSTICE LANGSTAFF:  You say that no bad faith is a relevant consideration?
108.  MR PRESLAND: May I briefly take instructions?  (Instructions taken) There is the question regarding my litigation friend's costs.  My learned friend has not addressed the court.
109.  MR JUSTICE LANGSTAFF:  She rather tied her star to your wagon.
110.  MR PRESLAND:  I am not suggesting that costs orders ought to be made against the children--
111.  MR JUSTICE LANGSTAFF: No, I do not think anyone has asked for that.
112.  MR PRESLAND:  While I am on my feet, is it helpful to mention matters of detail in the judgment?
113.  MR JUSTICE LANGSTAFF:  Can we deal with costs first.  I am sure there are some infelicities that need to be corrected.  Can I be clear as to what you are saying about the costs of Mr Grodinsky?
114.  MR PRESLAND: The Tribunal is an interested party.  Its position has been vindicated.
115.  MR JUSTICE LANGSTAFF:  You accept you should pay his costs? 
116.  MR PRESLAND: It is right that he should be in a position to apply in relation to it.  Thinking matters through, the Tribunal is part essentially of the court service.  It may be unfair to litigants, be they local authorities or individuals, that they should pay the costs of the court they appear before when on appeal.
117.  MR JUSTICE LANGSTAFF:  In these days of departmental budgeting it would make for different considerations.  I will see what is said.  Thank you very much.  Miss Mountfield?
118.  MISS MOUNTFIELD: My Lord, as I have said, the general principle of the Bolton, which I do not have with me (it is a House of Lord's authority), is that in a judicial review generally two sets of costs are not awarded, unless there are genuinely two separate interests to be represented. Even if there are, second or third parties ought to be expected to share.  It would be a rare case where more than two sets of costs are awarded.  For the reasons set out, the Commission, in these exceptional circumstances, ought to have at least a share of its costs and nothing can be said by Mr Presland that persuades me that was a misconceived position.
119.  Professor Jackson's evidence was necessary to partly explain the broader social context and importance of this case, but, in particular, to make good the submissions on the discriminatory effect of the submissions, which were made on behalf of the London Borough of Tower Hamlets, as regards Fairpo.  The report was necessary when, as it appeared from the grounds of resistance, there was a challenge to Fairpo.  With respect, it is difficult to see from the grounds of resistance, that the points concerning later cases not being at one with Fairpo were to be abandoned until receipt of Mr Presland's skeleton argument, which in my case was at 8.15pm on Monday night and by email.
120.  It is really a position that had we appreciated the scope of the argument before the court in due time, we might have decided it was not appropriate to intervene, but in the circumstances we had to take the steps we did to intervene properly.  The question of good faith is irrelevant and, as you observed, the fact that we are all publicly funded is also irrelevant.  The Christine Davies(?) case makes that clear.  It does not matter that we all have our own budgets and have a duty to protect them, as if we were private parties.
121.  MR JUSTICE LANGSTAFF:  The submission would be that you would effectively share the costs, there being more than two sets of costs? 
122.  MR GRODINSKY: That is Miss Mountfield's submission. It certainly is not mine.  I am afraid I am at a disadvantage. I do not know the House of Lord's authority of Bolton that my learned friend refers to, but whether the Commission should have a share of its costs, or not, I maintain my application that the SENDIST should have the entirety of its costs.  In relation to my learned friend's, Mr Presland's, submissions, I think he accepts fairly that had this been an application for judicial review by him against the Tribunal's decision, the Tribunal's decision would have been vindicated and he would have had to bear our costs.  I think, again fairly, he accepts this position is no different.  The only positive submission he advances is that the Tribunal is part of the court service, but I respectfully echo my Lord's reference to departmental budgets.  If the mere fact that a Tribunal was a part of the court service precluded it from obtaining costs, then that would apply across the board, even where it was a defendant proceedings, and that plainly is not the case.
123.  MR JUSTICE LANGSTAFF:  I am trying to remind myself in the White Book of the provisions on costs. Could I indicate what my inclination is? What I am going to do is, given the current position in the Administrative Court, Mr Wolfe, is invite counsel to draft the order. Since you have succeeded, that means you.  You will have your costs, in any event.  As to other costs, I would wish to read Bolton, to which Miss Mountfield makes reference.  I have some passing knowledge of it. At the moment I cannot put my finger upon a summary of it in the White Book.
124.  MISS MOUNTFIELD:  I should have found it. It is 48.14.6.  That is in relation to planning appeals.  The following propositions may be supported.  It is on page 1,333 at the bottom.
125.  MR JUSTICE LANGSTAFF:  Does it relate purely to planning? 
126.  MISS MOUNTFIELD:  It has been generalised out. 
127.  MR GRODINSKY: Can I observe in passing, that is a reference to a third set of costs.  It does not impact on mine, which is a second set of costs.  Under subparagraph (3) a second set of costs is more likely to be awarded at first instance in the Court of Appeal.  Here we are at first instance.
128.  MR JUSTICE LANGSTAFF:  My inclination, I think, would certainly have been that you should have had your costs, not least because much of the appeal has been conducted as though it were a judicial review against those who you represent, so that would seem to be appropriate.  If that leaves no space for Miss Mountfield, that leaves no space for Miss Mountfield's clients and I am sorry for that. 
129.  MISS MOUNTFIELD: It is clearly discretion, not a rule.  It says costs at the end of the first paragraph at 48.14.6 are:

"always in the discretion of the court and the practice must never be allowed to harden into a rule". 

130.  One sees over the page that:

"where an interested party has incurred the costs of providing evidence for the Secretary of State…"

It may be that one can seek the costs of the evidence obtained.

131.  MR JUSTICE LANGSTAFF:  I am not inclined to give the costs of that.  I appreciate the reasons why the Human Rights Commission provided the evidence, but I note there has been no reference to it in the course of submissions.  It has not materially advanced either the claim or the response.  So I am not sympathetic to that.  Unless you are able to satisfy your colleagues that there is a reasonable argument that you should have costs--
132.  MISS MOUNTFIELD: No, I will sit down.
133.  MR JUSTICE LANGSTAFF:  The usual position will follow.  The resolution of this then is that there will be the costs of the claimant and SENDIST paid for by Tower Hamlets. 
134.  MR WOLFE:  I think I need an ancillary record, which is the  standard legal aid order that my publicly funded costs are subject to detailed assessment. That is, in effect, Tower Hamlets.
135.  MR JUSTICE LANGSTAFF:  They have to pay them.
136.  MR PRESLAND:  They have to pay the inter partes' costs, but there is potentially a rump of costs that are not inter partes' costs, which need to be subject to detailed assessment. That does not affect Tower Hamlets.
137.  MR JUSTICE LANGSTAFF:  So be it.  Will you draft the order appropriately?  Now for the alterations and there may be others which the others have noted?
138.  MR PRESLAND: The first related to the position of Mr Recorder McCarthy, who was sitting as a Circuit Judge essentially in the Principal Registry of the Family Division.
139.  MR JUSTICE LANGSTAFF: Why does it say Clerkenwell and Shoreditch at the top of the page?.
140.  MR PRESLAND:  Because the Principal Registry of the Family Division has Circuit Judges sitting at what it calls the G Street Court House (?) where Clerkenwell County Court sits. In fact the application was made in the Principal Registry of the Family Division where judges can sit as Circuit Judges and as High Court Judges. He was sitting as a Circuit Judge.
141.  MR JUSTICE LANGSTAFF:  Sitting as a Circuit Judge
142.  MR PRESLAND: At the G Street Court House. As far as the representatives are concerned, my learned friend on behalf of the child is in fact a solicitor, rather than counsel instructed.  Your Lordship referred to, I think, section 22 (6) and (7) as indicating--
143.  MR JUSTICE LANGSTAFF:  It should be just subsection (7), I think. 
144.  MR PRESLAND: As indicating that the local authority's responsibility to take account of a wider range--
145.  MR JUSTICE LANGSTAFF: It is section 22(7), which I had in mind. The point, which may not have been elegantly expressed, that I was making was that the power is general power.  It is subject to other powers, one of which is indicated by subsection (7).
146.  MR PRESLAND: In relation to the Secretary of State's directions to protect members of the public. The report prepared in 2005 for completeness was by an educational psychologist, rather than a psychiatrist, and as far as a care order not extinguishing every right of paternal responsibility, perhaps more correctly it should say it does not extinguish any right.  It is perfectly clear that a parent shares parental responsibility, but parental responsibility is not extinguished, in any regard, by making a care order.
147.  I am aware of the lateness of the day, it may save getting people together today if I were to apply for permission to appeal in relation to the substantive order. Your Lordship may feel, having given a lengthy judgment and  for the reasons in that judgment, that it would not help to hear from me at great length.
148.  MR JUSTICE LANGSTAFF:  It certainly would not help to hear from you at great length. If you can shortly indicate the grounds.
149.  MR PRESLAND: The local authority is in a difficulty. It was a lengthy judgment and I have not had time to marshal my thoughts. So perhaps I am not in the best place to make the application as we speak. 
150.  MR JUSTICE LANGSTAFF: You must be making the application on some basis. 
151.  MR PRESLAND: The local authority has to comply with the SENDIST direction on the basis of your Lordship's finding. The local authority's case was that section 22(3) gave it a greater duty to protect the welfare of the child.  If the regulations, as they are set out, in fact do not give SENDIST the power to make a direction requiring the child to be made available for examination, then that would tend to support the local authority's case that it is entitled not to be so; unless, in the circumstances, where it is satisfied that to do so would not be complying with its duty to safeguard and promote the welfare of the child.  In a nutshell it is that. 
152.  MR JUSTICE LANGSTAFF: Thank you for that.  Leave is refused.  I think the judgment is clear that the court considers it part of the duty of the local authority, under section 22, to promote the best interests of the welfare of the child by complying with directions made by SENDIST.
153.  In so far as there is any question about the validity of the order in that it is said the rules do not permit SENDIST to make it, that was a matter which could, and should, if it was a valid point, have been made by seeking a review of the SENDIST order.  It is regular and valid, on the face of it, and therefore it is not a void order, and, as such, there is no basis, as it seems to me, to appeal.