England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand, London, WC2A 2LL
		12 June 2009

Mr Justice Silber:

I Introduction

1. D ("the claimant"), who was born on 25 December 1995, contends that Birmingham City Council ("the defendant") acted unlawfully in refusing in a letter dated 8 January 2009 ("the January 2009 decision") to amend her Statement of Special Educational Needs ("the SSEN") following her statutory annual review. The claimant had sought without success an amendment to the SSEN as being necessary to make adequate provision for her present educational needs. Sir Thayne Forbes, sitting as a Deputy High Court Judge ordered the present rolled-up hearing and I have given permission. The case then duly proceeded to a full hearing.
2. The background to this case is that on the 11 November 2004 when the claimant was nearly 9 years of age, a SSEN was made in respect of her educational needs and it was subsequently amended on 8 February 2007. There was an annual review of the claimant's SSEN on 5 December 2008, which recommended that the existing SSEN should not then be amended. This recommendation led to the defendant making the January 2009 decision, which is under challenge in these proceedings.
3. Subsequently the claimant's parents requested the defendant to undertake a further re-assessment of the claimant but that request was refused ("the June 2009 decision") by a letter dated 1 June 2009. Mr. Peter Oldham counsel for the claimant and Mr. Paul Greatorex counsel for the defendant sensibly agreed that I should take this refusal into account in deciding this application and I will do so.

II The Statutory Background

4. In order to understand the submissions and the claims, it is necessary to explain the statutory background to the present application. The statutory scheme relating to the provision of assistance to those such as the claimant with special educational needs is set out in Part IV of the Education Act 1996 ("the 1996 Act"). Section 323 of the 1996 Act imposes a duty on the local education authority to assess children with special educational needs whilst section 324 of the 1996 Act imposes a duty on that authority to maintain SSENs for certain children. SSENs have to be reviewed at least annually (section 328(5) of the 1996 Act).
5. Section 328(6) of the 1996 Act provides that regulations may be made to deal with the manner in which reviews of such statements are to be conducted. Regulations have been made pursuant to that provision under The Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 ("the Regulations").
6. Section 328(2) of the 1996 Act enables a parent to request the local education authority to make a re-assessment of the SSEN and a parent dissatisfied with the decision may appeal to what is now the First-tier Tribunal (Health, Education and Social Care Chamber) and what was previously the Special Educational Needs Tribunal. An appeal may also be made by a parent to those bodies when a statement is first made or when it is amended after an assessment (section 326(1) of the 1996 Act). In addition there is a right of appeal to this Tribunal against a refusal of re-assessment while there is no right of appeal if (as in the case of the January 2009 decision) there is a decision to make no amendment following a review.
7. The Secretary of State is empowered to give guidance on how local education authorities and school authorities should perform their obligations under Part IV of the 1996 Act in a code of practice. A Code of Practice ("the Code") has been published and both sides rely on different provisions in it.
8. The form of a SSEN is set out in Schedule 2 of the Regulations and Part 2 of it, which is entitled "Special Education Needs", states that it should specify among other factors :-

"[The] child's special educational needs, in terms of the child's learning difficulties which call for special educational provisions, as assessed by the authority".

9. Part 3 of Schedule 2 of the Regulations requires the SSEN to "specify the objectives which the special educational provision should aim to meet" and "the special educational provision which the authority consider appropriate to meet the needs specified in Part 2 and to meet the objectives specified in this Part".
10. Part 4 of Schedule 2 the Regulations then sets out the placement which is appropriate for the child in the light of the results of the Part 2 and Part 3 inquiries. It is common ground that the Part 4 placement must follow logically from the Part 3 objectives while Part 3 provision must meet the needs specified in Part 2. In other words, the needs specified in Part 2 are the crucial starting point which determines how the child concerned is to be educated. Accordingly everything flows from Part 2 and it is important that the description of the child's functioning and his or her needs in Part 2 are and remain accurate and up to date (see the comments of Judge LJ in W v Leeds City Council [2005] ELR 617, 629 [35]). Indeed that is the purpose and the rationale of the annual review.

III The Issues

11. The issues are:

i) Whether the claimant is correct in the assertion that the January 2009 decision should be set aside as the defendant failed to amend the SSEN and thereby ignored the views of its own educational psychologist (Ground 1):

ii) Whether, as the claimant contends, the defendant acted in an irrational manner and ultra vires its powers under the 1996 Act and/or the Regulations when it reached the January 2009 decision that the claimant's SSEN "should not be amended as regards provision or placement even though, as recorded in successive versions of the SSEN, she has made no or no real progress in literary skills from the age of 9" (Ground 2); and

iii) Whether the claims can be rejected because there was an alternative remedy available to the claimant and/or there has been a delay which precludes the claimant from succeeding (Issue 3).

IV Ground 1

12. The first ground of challenge to the January 2009 decision, which was introduced by amendment, is that the defendant's own educational psychologist Ms Ogun stated during the review in December 2008 that a May 2008 test of the claimant showed that her level of attainment had moved forward from an age equivalent of 6.6 years as recorded in the SSEN in 2004 when her chronological age was 8 years and 8 months and as was also subsequently recorded in May 2008 to:-

"Literacy skills – 8 years and 8 months – this made her two years behind

Spelling – 8 years and 9 months".

13. Thus it is contended by Mr Oldham that the defendant erred by retaining in the January 2009 decision the text produced in 2004 as the claimant's level of attainment in the SSEN. He points out first that the changes recorded in December 2008 have in effect been ignored by the defendant and second that there has been a wilful or unexplained refusal by the defendant to put in updated information.
14. To fortify the point, it is contended by Mr. Oldham that this updated information cannot be regarded as insignificant because the psychometric testing is a key to assessing the rate of progress or the lack of progress of a child with special educational needs. His points are first that if the result of this testing was not significant, then the tests would not have been carried out and second that the significance of the test was spelled out by Ms Ogun to the meeting [57] when she said that:-

"this recent test was four years after the last test done. Since the last test there have been two years progress hence [the claimant] has made two years progress in four years".

15. Thus the case for the claimant is that the defendant in failing to amend the SSEN in the January 2009 decision acted irrationally. It was also said that the defendant's actions were ultra vires the 1996 Act and/or the Regulations but Mr Oldham realistically accepted that he could not succeed on that ultra vires ground if he was unsuccessful on the rationality test. So I need not consider the ultra vires argument further although I appreciate that the claimant's case is also that by failing to amend the SSEN in the January 2009 decision, the defendant departed from the statutory requirements in an unexplained and irrational manner.
16. Mr. Oldham stresses that the relevant provisions of the Code include provisions that:-

1. "Part 2 of the statement should describe all the child's learning difficulties identified during the statutory assessment. It should also include a description of the child's current learning- what the child can and cannot do" (the word "all" was emphasised in the original) (paragraph 8.32).

2. The purpose of the annual review is that it:-

"..should aim.. (iv) to consider the continuing and appropriateness of the statement in the light of the child's performance during the previous year, and any additional special educational needs that have become apparent in that time, and thus to consider whether to cease to maintain the statement or whether to make any amendments including any further modification or disapplication of the national curriculum.." (paragraph 9.7).

3. "Amendments [to the SSEN] are likely to be recommended if:-

Significant new evidence has emerged which was not recorded on the statement" (paragraph 9.30).

17. The submissions of the claimant fail to appreciate the role played in the annual review by the defendant as the local education authority and also the role of the court in considering the claimant's complaints. As I will explain, the local authority has to determine how to act after the Head Teacher has carried out detailed and prescribed consultation. Regulation 20(1) of the Regulations requires the education authority to request the Head Teacher of the school at which a child with special needs is attending to submit a report to them by a specified date no later than two months from the date of the notice save for children in year 10 in respect of which there are certain provisions which obviously do not apply to the claimant. In order to produce the report, the Head Teacher is obliged to seek written advice from the child's parents and from any person whose advice the authority or the Head Teacher considers appropriate for the purpose of producing a satisfactory report (regulation 20(4) and (5)). The notice from the local education authority to the Head Teacher requesting the report shall require a number of people to attend a meeting including the parents of the child, the representative of the local education authority, members of staff who teach the child and any other person whose attendance the Head Teacher or the Authority considers appropriate (regulation 20(6)). The meeting shall consider the written advice received from the people who the head teacher is obliged to ask for advice (regulation 20(8)). The meeting is then required to make recommendations on a number of matters including whether the SSEN should be amended (regulation 20(9)).
18. The report required to be submitted by the Head Teacher has to refer to a number of matters such as whether the SSEN should be amended so as to take account of the child's progress towards meeting the objectives in the statements and towards attaining any targets established in furtherance of the objectives specified in the statement (regulation 20(9)). The report is then submitted to the local authority who "shall review the SSEN, record in writing their decision and make written recommendations for amendments to the plan as they consider appropriate" (regulation 20(13)).
19. This procedure was adopted in this case as a meeting was convened by the Head Teacher of the school which was attended by the claimant, her mother, people who taught her, the special educational needs administrator, the educational psychologist, the Pupil & School service support services and the principal review officer. Further written information had been supplied and it is clear from the material before the court that there had been a lengthy discussion which had led to the recommendation by the Head Teacher of the claimant's school that neither the claimant's educational needs, the claimant's educational placement needs nor the claimant's educational placement needed reviewing.
20. By letter dated 8 January 2009 (which was the January 2009 decision), the Review Officer for the defendant wrote to the claimant's parents explaining that:-

"The authority having carefully considered the contents of the report has decided to make the following recommendations:-

"(a) the review report does not recommend any changes to [the claimant]'s statement of special educational needs. The Authority does not propose to make any amendments to the statement and recommends that it should continue to be maintained in its present form without any changes…".

21. The case for the claimant is that this decision was irrational and/or that no reasonable local education authority would have reached that decision. In my view there are four reasons which individually and cumulatively show why I cannot accept the claimant's complaints.
22. First, the task of the court is not to see whether it agrees with the decision but whether there is an error in public law. My role on this application is limited and this application cannot be an appeal on factual matters. As was pointed out by Richards J (as he then was) in Bradley v The Jockey Club [2004] EWHC 2164 QB in passages which were expressly approved on appeal in that case by Lord Phillips MR. [2005] EWCA Civ 1056 [17] when giving the judgment of the Court of Appeal:-

"37 ... The function of the court is not to take the primary decision but to ensure that the primary decision-maker has operated within lawful limits…the essential concern should be with the lawfulness of the decision taken: whether the procedure was fair, whether there was any error of law, whether any exercise of judgment or discretion fell within the limits open to the decision maker, and so forth . . ."

23. In this case, there has been no challenge to the report of the Head Teacher which made the recommendation which was accepted by the defendant when it made the January 2009 decision. The defendant explained that it had considered the report of the Head Teacher with care. In this case the decision under challenge was lawful as the January 2009 decision was one which the defendant was entitled to reach on the evidence especially in the light of the report of the Head Teacher which had been produced after very careful consideration and which had been the subject of further consideration by the defendant. It is not suggested that it failed to comply with the statutory procedural requirements.
24. That in my view is a complete answer to the first claim but there are other fundamental misconceptions in the claimant's case which constitute further reasons for rejecting the claim.
25. Second, the assumption behind the claimant's case is that only two years' progress made by the claimant in four years is of itself proof of some problem or deficiency in the statement of educational reasons. This assumption is not something that can be accepted by a court as this is a specialist area in which the court has no expertise. It is relevant that there has been in existence a tribunal with specialist and expert knowledge on education matters formerly in the form of SENDIST and now known as the First-tier Tribunal (Health, Education and Social Care Chamber) which, unlike the Administrative Court, has jurisdiction to conduct a full merits review of decisions of this nature. I must stress that judges of the Administrative Court do not have any knowledge of what should be in a SSEN. Indeed for all I know the progress that was made by this claimant of two years in four years was what was anticipated when the most recent SSEN was produced and it might therefore be consistent with the previous statement of special educational needs.
26. Third there is arguably no basis for the assertion made by the claimant that psychometric testing is a key to assessing the rate or lack of rate of progress of a child with special educational needs as this is not an area on which this court unlike the First-tier Tribunal (Health, Education and Social Care Chamber) can comment.
27. Fourth, the implicit underlying assumption in the claimant's case is that whenever there are new test results available the statement must be amended is not consistent with the Code of Practice or the Regulations. There is nothing in that material which states that there should be a re-writing of the SSEN in that event.
28. For all those reasons I am bound to reject the claimant's case. It is also said that the decision can be challenged on the basis that no reasons were given by the defendant for its decision. In my view that is incorrect because the letter of 8 January 2009 explains that the council had "carefully considered the contents of the report" from the Head Teacher and had accepted it. No contrary submissions had at that stage been put forward which would have required any further reasons. In my view there is a world of difference between the reasons that have to be given by a body when it has conflicting contentions in front of it and the present case where there were no conflicting submissions before the decision-maker, namely the defendant.

V Ground 2

29. The claimant contends that it was irrational and ultra vires its powers under the 1996 Act and/or the Regulations for the defendant to reach the January 2009 decision that the claimant's SSEN "should not be amended as regards provision or placement even though, as recorded in successive versions of the SSEN, she has made no or no real progress in literary skills from the age of 9".
30. The basis of this claim is that during the review the claimant's mother stated that the claimant had dyslexia and that she should be moved to Maple Hays School which was a school catering for pupils with dyslexia. Dr. Brown the Headmaster of Maples Hay School advocated amendments to the SSEN. So the claimant's case is that the SSEN should have been amended and that the failure to do was irrational and ultra vires. Mr. Oldham correctly in my view accepts that he could not succeed on the ultra vires point if he was unsuccessful on the rationality challenge and I will therefore focus on the irrationality issue.
31. I cannot accept the claimant's challenge which is based on the premise that the views of Dr. Brown and of the claimant's mother are so clearly correct that it is irrational not to accept them. There was contrary evidence from, for example, Ms. Ogun, the educational psychologist who having assessed the claimant concluded that:-

"She has clearly made progress with both literacy and numeracy skill. Especially her numeracy. Continue support strategies which are still working".

32. There was therefore clear material which entitled both the claimant's Head Teacher and the defendant to conclude that the claimant's SSEN did not require amendment. As I have already explained in paragraph 22 above, it is clearly established that the court's role on a judicial review application such as the present one is to ascertain if the decision maker, which in this case was the defendant, operated within legal limits; that means considering whether the decision was lawful, whether the procedure was fair, whether there was an error of law and whether the decision fell within the limits open to the decision-maker. In this case, the decision under challenge was lawful as the decision was one which the defendant was entitled to reach on the evidence especially in the light of the decision of the Head Teacher and the opinion of Ms. Ogun. There is no suggestion that the decision was procedurally unfair.
33. In any event, this court does not have the expertise to determine whether the January 2009 decision was correct and indeed it is not the function of a court hearing a judicial review application to reach a decision on such matters.

VI Ground 3

34. As the claimant's challenge has to be dismissed, this ground has become academic and so I can deal with it very speedily. The claimant could, for example, have obtained redress by requesting reassessment in accordance with the statutory procedure set out in section 328 of the 1996 Act and then appealing that decision. In my view that could have constituted an alternative remedy, which was available to the claimant and it amounts to a ground for refusing relief.
35. On 21 April 2009, which was about three weeks after the present proceedings were commenced, the claimant's mother in fact invoked that procedure and that led to the June 2009 decision. Indeed this decision could be appealed and that is an alternative remedy the existence of which constitutes an additional ground for dismissing the present claim.

VII Conclusion

36. For the reasons which I have set out, the claim has to be dismissed notwithstanding the helpful submissions of Mr. Oldham. For the avoidance of doubt, I must stress that I have not expressed and that I am neither entitled nor qualified to reach any conclusions on what should be in the claimant's SSEN. I very much hope that an amicable solution can be reached to the dispute between the claimant's family and the Council and consideration will have to be given by the claimant's family to invoking the specialist jurisdiction of the First-tier Tribunal (Health, Education and Social Care Chamber).