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
		17 July 2009

The Honourable Mr Justice Silber:

I Introduction

1. The issue on this application relates to whether the claimant's parents or their local authority should pay about £15,000 in school fees for a school attended by the claimant during the academic year 2008-2009 even though it was not the school specified for the claimant as being appropriate for him to attend in his Statement of Special Educational Needs ("SSEN").
2. TW ("the claimant"), who was born on 18 January 1992, contends that Kent County Council ("the Council") acted unlawfully in decisions dated 11 August 2008 and confirmed on 10 October 2008 in refusing to amend his SSEN so that the school that he should attend should be specified as Summerhill School ("Summerhill") and not the school which the SSEN stipulated, which was the New School at West Heath ("West Heath"). He also contends that the Council acted unreasonably and unlawfully in not agreeing to pay any of his fees at Summerhill for the academic year 2008-2009 pursuant to the provisions of the Scholarships and Other Benefits Regulations 1977 ("the 1977 Regulations"). Foskett J ordered the present rolled-up hearing and during the present hearing, I gave permission and the full hearing followed.
3. The background to this case is that although the claimant has above average cognitive ability, he has behavioural and social difficulties as well as academic problems, which are caused by "a diagnosis of Attention Deficit Hyperactivity Disorder ("ADHD") co-morbid with dysfunction". There has been a continuous dispute since about 2003 between, on the one hand, the claimant and his parents and, on the other hand, the Council about which secondary school the claimant should attend. He had previously attended a main stream primary school but he was in danger of exclusion. Since 2002, he has attended Summerhill, which is a well-known progressive residential school. The Council has stipulated as being appropriate for the claimant in his SSEN another residential special school for the claimant and that is West Heath, which charges fees of about £75,000 per annum for a weekly boarding place.
4. As the claimant's parents are now experiencing financial problems, they have sought financial assistance from the Council but it has refused to pay the claimants' fees for Summerhill which amount to £15,000 approximately for the school year 2008-2009. The case for claimant is first that by failing to make this payment, the Council has acted in breach of its obligations under the 1977 regulations and second by failing to amend the SSEN to specify Summerhill and not West Heath, the Council has acted irrationally and in breach of its public law duties.
5. It is appropriate now to explain a little about Summerhill which is an impressive, but an unusual, school and which has received praise from OFSTED. As was explained in the OFSTED report in November 2007, this school adopts an alternative philosophy to education and this "is based on the notion that children should be free to decide for themselves how to spend their time in school". The daily life of the school is governed by school meetings held three times a week in which everybody has an equal vote and they are used to create, confirm and amend all the school laws. The Council and the Special Education Needs Tribunal ("SENDIST") have agreed in concluding first that Summerhill is not suitable for the claimant and second that West Heath is the school appropriate for the claimant's needs. SENDIST has described West Heath as "a special school and is relatively conventional in its requirements for pupils to conform" while it says of Summerhill that it "has a fundamental philosophy that pupils should not be compelled to attend lessons". SENDIST explained that the reasons why it considered that Summerhill was not suitable for the claimant and they included the facts relating to:-

"the school's inability to compel Tertius to attend lessons. . .inability to properly identify assess and intervene to address his special educational needs unless at his request,., failure to make any identifiable progress to meet his needs"

II The Statutory Background

6. In order to understand the dispute in this case 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 the authority to maintain SSENs for certain children. SSENs have to be reviewed at least annually (section 328(5) of the 1996 Act).
7. 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").
8. 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 SENDIST. 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 there is a decision to make no amendment following a review.
9. 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".

10. 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".

11. 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. A Part 4 placement must follow logically from the Part 3 objectives while Part 3 provision must meet the needs specified in Part 2. In this case, the dispute between the claimant and the Council relates to the Part 4 school specification.

III The Factual Background

12. In June 2000, the Council issued the first SSEN for the claimant naming Wouldham Primary School, which was the primary school, which he was then attending. According to a decision of SENDIST dated 24 February 2004 ("the 2004 decision"), the claimant's behaviour deteriorated and in an interim review in March 2002, that school indicated that the claimant required more specialist provision.
13. The claimant's parents took the decision to place the claimant at Summerhill where he started on 29 April 2002.
14. In May 2002, the Council issued a new Final Amended SSEN for the claimant. The claimant's parents appealed to SENDIST against the content of the SSEN and in particular they wanted Summerhill named in Part 4. In a decision dated 24 March 2003, according to the 2004 decision, SENDIST subsequently ordered amendments to parts 2 and 3 of the SSEN but it dismissed the appeal against the Part 4 finding refusing to hold that Summerhill was a suitable placement for the claimant and it thereby approved and supported the Council's position that Summerhill was not a suitable placement. The approach of the Council is that Summerhill did not provide in the words of Mr David Holland its Additional Educational Needs Manager for "efficient instruction and training for pupils with special educational needs".
15. The claimant remained at Summerhill and later in 2003, the Council specified West Heath as being the appropriate school in Part 4 of the SSEN of the claimant as being the appropriate school from September 2003. The claimant attended West Heath for two weeks but he returned to Summerhill because in his words "I did not like [West Heath] and did not feel comfortable there". The claimant's parents decided they no longer wanted the claimant to attend West Heath and they continued to want him to be educated at Summerhill. The Council refused the request for Summerhill to be specified in the claimant's SSEN.
16. The claimant's parents appealed to the SENDIST against the decision to name West Heath in Part 4 of the claimant's SSEN and it sought an order that Summerhill be substituted for West Heath. After the SENDIST had heard the appeal in the 2004 decision, it made minor amendments to parts 2 and 3 of the SSEN but it dismissed the appeal against part 4. Significantly the SENDIST decided first that the claimant's educational needs could not be met at Summerhill but second that those needs could and would be met at West Heath.
17. It explained its conclusions by stating that:-

(a) "e …We note that Summerhill has a fundamental philosophy that pupils should not be compelled to attend lessons. The undisputed result is that [the claimant] has not to any extent. In particular he has not attended academic lessons and has not received direct provision for his literacy difficulties. We accept that his behaviour has improved in Summerhill largely because he is not required to take part in anything he does not wish to and there are few restrictions for him";

(b) "h.[The claimant] left us in no doubt that he likes Summerhill, was happy to go there and thoroughly understood that he did not have to do what he did not want. We do not consider that to be consistent with him being involved in meaningful lessons to develop his literacy and numeracy skills and increase attainments across curriculum subjects. Apart from issues relating to [the Council's] ability to carry out what it sees as its duties in monitoring statements, we conclude that Summerhill is unable to meet [the claimant's] special educational needs";

(c) "i… whilst we accept that [the claimant and his parents] believe in [Summerhill's] philosophy, we are unable to conclude that a philosophy which results in what we have concluded is unsuitable education for the [claimant's] special educational needs, can fulfil the statutory requirements";

(d) "j…[West Heath ] is a special school and is relatively conventional in its requirements for pupils to conform";

(e) "k… [West Heath ] concentrates on making appropriate provision for pupils with special educational need; that is to their benefit…[The claimant] requires to be where he can take advantage of appropriate educational opportunities to increase his skills.."; and

(f) "l. We accept that [West Heath ] will necessarily have much skill and experience in arranging for pupils to become engaged, this is clear from the prospectus and the evidence given by [the Vice-Principal of West Heath]. The school's specialist provision is appropriate for [the claimant's] identified needs. We conclude that it can meet both [the claimant's academic and behavioural learning needs and should remain in Part 4 of his [SSEN]".

18. The claimant's parents did not appeal against this decision. There were annual reviews for the claimant in each year from 2004 to 2007 and on occasions, it was noted that the claimant had made excellent progress at Summerhill.
19. In 2007, Summerhill received a very favourable report from OFSTED. The parents of the claimant's Member of Parliament sought in vain to persuade the Council to pay the claimant's fees at Summerhill.
20. On 12 March 2007, the next annual review of the claimant's statement was held at Summerhill. The report from that review was received by the Council on 13 March 2007 and it asked that the Council agree to change the school on the claimant's SSEN to Summerhill.
21. After the Council had considered the review report, it responded to the claimant's mother on 22 August 2007 and 13 September 2007 stating that the Council did not propose to amend the claimant's SSEN to name Summerhill as it was not considered an appropriate placement for the claimant and it could not meet his needs.
22. After the annual review of the claimant's statement on 17 March 2008, the report of it was received from Summerhill by the Council on 3 April 2008. It requested that the Council consider funding the claimant's place at Summerhill up to July 2009. The Council responded in a letter to the claimant's mother on 12 May 2008 stating that it would not amend the name of the school in Part 4 of the claimant's SSEN to Summerhill. On 22 July 2008, SENDIST refused to register an appeal by the claimant's parents and that decision has not been challenged.
23. After further representations were received from the claimant and his mother, his case was reviewed by the claimant's County Panel on 11 August 2008. The Panel decided to uphold the previous decision and not to name Summerhill in the claimant's SSEN as it was concluded that Summerhill was not meeting the claimant's special educational needs. This decision, which is challenged on this judicial review application, was communicated to the claimant's mother by a letter of 15 August 2008.SENDIST stuck out the appeal for want of jurisdiction on 17 September 2008.
24. On 4 December 2008, the Council informed the solicitors who are now acting for the claimant that it did not propose to fund the claimant's education at Summerhill for the 2008 - 2009 academic year. As a Transition Plan had not been prepared in 2006, the Council proposed a process whereby the educational psychologist would assess the claimant. It was envisaged that once the report had been prepared, it would be sent to Summerhill for them to arrange a Transition Review and that that could lead to a Transition Plan being drawn up. It was thought that when that had been done, the Transition Plan and the report from the Educational Psychologist would then be passed to the County Panel, which would then consider to decide whether the current SSEN met the claimant's educational needs after the age of 16 and whether an amendment to the statement would be required.
25. The Council's Educational Psychologist carried out the assessment of the claimant on 23 January 2009 and it was passed to the Council, the Principal of Summerhill, the claimant and his mother. This might have been relevant to the grant issue but as I will explain in paragraphs 40 and 41 below, the Council rejected the request for funding in its letter of 4 December 2008. On 27 February 2009, a Transition Review meeting was held at Summerhill attended by Ms Jan Passmore and Mr Ian Wheeler who was the Provision Evaluation Manager for the Council.
26. After the Council had received the Transition Review Report and Transition Plan, the claimant's case was considered again by the County Panel on 16 March 2009 and it was agreed that after the end of the academic year 2008/2009, the Council would cease to maintain the claimant's SSEN. That decision is not the subject of the present appeal.

IV The Issues

27. The issues to be resolved in this case are:-

(a) whether the Council erred in failing to make payments of the claimant's school fees pursuant to the 1977 Regulations (" The 1977 Regulations Issue") (see paragraphs 29 to 56 below);

(b) whether the Council acted irrationally or in breach of its public law duties by not amending the statement of the claimant so that the designated school was Summerhill and not West Heath ("The Irrationality Issue") (see paragraphs 57 to 97 below); and

(c) what relief, if any is the claimant entitled to in the light of the delay and alternative remedies that are available (" The Delay Issue") (see paragraphs 97to 98 below ).

V Issue A. The 1977 Regulations Issue

(i) Introduction

28. The claimant and his parents contend that the Council is obliged pursuant to the 1977 Regulations to pay the claimant's fees due to Summerhill for the 200/2009 academic year. Education authorities are empowered (but not obliged) to make grants of scholarships or other benefits by regulation 4 of the 1977 Regulations, the material part of which provides that:-

"[Subject to regulation 6] every authority may for the purpose of enabling pupils to take advantage without hardship to themselves or their parents of any educational facilities available to them -……

(d) pay the whole or any part of the tuition fees, boarding or lodging fees and expenses payable in respect of children attending schools at which fees are payable".

29. There are limitations on the ability of the local education authority to make payments pursuant to the 1977 Regulations because the material part of regulation 6 provides that:-

"No payment shall be made under these Regulations unless –

(a) it is required to be made in order to prevent or relieve financial hardship;

(b) …

(c) the authorities are satisfied that the course of education to which the payment relates is suitable for the pupil".

30. Mr. Nicholas Bowen QC, counsel for the claimant submits first that the Council failed to exercise their powers under regulation 4 as they did not reach a decision on it and second that the attitude of the Council was Wednesbury [1948] 1 KB 223, unreasonable as there was no other decision available to it other than to make a grant to cover the claimant's fees at Summerhill for the 2008 - 2009 academic year, which remain unpaid.
31. The Principal of Summerhill has stated in a witness statement that she has agreed to defer payment of the claimant's school fees for the academic year 2008- 2009 until the end of the present proceedings but she stresses that they have not been written off. The issue on this application is whether the Council is obliged to take over responsibility for these fees.
32. The sub-issues to be considered are:-

(a) Whether the claim should be refused because the wrong statutory provisions were referred to by the claimant's solicitors in their letter of application for financial assistance ;

(b) Whether if a proper application was made under the 1977 regulations , the Council responded to it and ,if so, how;

(c) Whether at the relevant time there was evidence that "payment was needed to prevent or relieve financial hardship";

(d) Whether "the [local education] authorities [could be] satisfied that the course of education to which the payment relates is suitable for the pupil[ namely the claimant]"; and

(e) Whether any relief ought to be granted to the claimant even though the Council had a discretion as to whether to grant relief.

(ii) Should the claim be refused because the wrong statutory provisions were referred to by the claimant's solicitors in their letter of application for financial assistance?

33. Mr Clive Rawlings, counsel for the Council, contends that the request to the Council for funding was made under the wrong provisions and so it cannot be said that the Council acted unlawfully or unreasonably in refusing or failing to pay for the claimant's last year at Summerhill. It is true that the request for funding was contained in the letter from the claimant's solicitors of 29 October 2008 to the Council and it stated that:-

"..we request that the Council exercise their powers to arrange and provide a grant for attendance at Summerhill School under sections 18, 348, and 517 Education Act 1996".

34. Significantly, no reference was made in that letter or in any follow-up letter from or on behalf of the claimant prior to the commencement of the present proceedings to regulation 4 or indeed any part of the 1977 regulations, which were obviously enacted before the 1996 Act. It is noteworthy that there is no connection between those regulations and the provision set out in the letter of 29 October 2008. Mr Bowen contends that this does not matter and he relies on the decision of Mr Andrew Nicol QC (who was sitting as a Deputy High Court Judge) in R (CES (A Minor)) v Oxford County Council [2004] ELR 489 in which he held that an application for judicial review could not be dismissed because the application did not refer to the 1977 regulations in the claim form (see [39], [41] and [44c] at pages 499 to 501).
35. The issue in the present case is very different as the discrepancy does not relate to the relationship between the contents of the claim form and the relief sought at the hearing as was the position in the CES case but the present application deals with the totally different issue of whether the application for a grant which referred to statutory provisions in the 1996 Act could later form the basis of a judicial review application for a grant under the 1977 regulations. In my view, in the light of the terms of the letter of 29 October 2008, the Council must be regarded as having only the duty to consider the application under the 1996 Act and not the 1977 regulations as that is what they were asked to do. The Council could not be expected to have guessed what statutory regime the claimant's solicitors might have had in mind when applying for assistance for the claimant's fees.
36. After all, if a Council receives and considers an application for one form of assistance such as X, they cannot later be criticised for refusing to give Y which is a different form of assistance. So any failure to consider or to grant Y assistance cannot then be the subject of an application for judicial review. There is no allegation that the Council would have committed a breach of its public law obligations if it had refused to make payment under sections 18, 348, and 517 of the Education Act 1996, which were the statutory provisions referred to in the letter of 29 October 2008. I should add that in the CES case, (supra), it was explained by the judge on page 500 [44(a)] that section 18 of the Education Act 1996 did not contain a power for a Council to pay school fees.
37. Insofar as the claimant contends that the Council acted in a Wednesbury [1948] 1 KB 223, unreasonable manner by not paying under the 1977 regulations, I must reject this contention because no appropriate application had been made under those regulations. By the same token I cannot accept the claimant's submission that the attitude of the Council was Wednesbury unreasonable as there was no other decision available to it other than to make a grant to cover the claimant's fees at Summerhill for the 2008 - 2009 academic year.
38. For those reasons, this application based on the 1977 regulations must be refused. Of course there is no reason why a further application to the Council cannot now be made referring to the 1977 regulations if (but only if) the qualifying conditions in regulation 6 are satisfied.

(iii) If a proper application was made under the 1977 regulations, has the Council responded to it and, if so, how?

39. As I have found that an application was not made under the 1977 regulations, this issue is academic as the claim relating to these regulations must fail. If I am wrong, then my view is that the Council responded when it indeed refused to give financial assistance to the claimant's parents in its letter of 4 December 2008 when it stated with clarity that:-

"in reply to your second point [which was a funding request for the academic year 2008-9] my client instructs that it is not in a position to fund Tertius placement at Summerhill for this academic year"

40. There is nothing conditional or uncertain about that statement which showed that the Council would not accept responsibility for the claimant's fees at Summerhill for the 2008 – 2009 academic year and by so doing, it refused the request from the claimant's parents for funding.

(iv) At the relevant time, was there evidence that "payment was needed to prevent or relieve financial hardship?"

41. This issue is also academic in the light of my previous findings but Mr Bowen contends that there was adequate evidence that payment by the Council of the claimant's school fees at Summerhill for the academic year 2008-2009 was needed to prevent or to relieve financial hardship for the claimant and his parents. His case is that this evidence was contained in the letters sent to the Council and in the claimant's witness statement. There had indeed been assertions made by the claimant and by his mother referring to the family's impecuniosity and their inability to pay school fees but they did not give any particulars.
42. The claimant in his witness statement, for example, stated first that as at November 2008 of his parents ability to pay his fees that "they can no longer to do so" and second that his father who is a partner in a High Street solicitors firm and its income had decreased as the amount of conveyancing had reduced. The claimant's mother has also stated that the claimant's parents could no longer afford to pay fees at Summerhill but she does not give any particulars or any details. None of this evidence gave any details of the financial position of the claimant's parents and in particular what income and assets they had.
43. Indeed, until just before the hearing before me, the claimant's parents had not given any particulars explaining why a grant from the Council was needed so as to prevent actual or potential financial hardship. In my view, the onus was clearly on the claimant and his parents to give full details of their financial position as they alone knew their financial position while the Council obviously required such information before being able to determine whether to exercise its power to make grants under the 1977 regulations. Of course, the Council had responsibilities not to make any payment pursuant to the 1977 regulations unless there was evidence which showed that payment was needed so as to prevent or to relieve financial hardship to the claimant's parents or the risk of it if assistance was not provided.
44. The financial evidence, which was adduced just before start of the present hearing but a long time after the present judicial review proceedings had been instituted, consisted of a short witness statement made by the claimant's mother in which she explained first that her husband had suffered financial hardship as he had been unable to take his monthly drawings of £3000 per month since 20 February 2008, second that his share of his firm's profits in 2008 was £2413 and third that by June 2009, their financial situation had not improved.
45. The claimant's mother stated in her witness statement that she had an annual net income of £19,500 from her part-time job and that she also received £5000 for having a communications mast on "my land" about which she gave no details. She said that she and her husband had no other sources of income and no savings. This late evidence might possibly have constituted evidence of financial hardship although it was unfortunate that it did not give details of the assets of the claimant's parents such as what his mother describes as "my land".
46. Nevertheless the position is that as at the time when this judicial review application was instituted, the Council would have been under no liability even to consider making a payment because it had not received any details of the means of the claimant's parents, and therefore one of the pre-conditions for making such payment (namely evidence that "payment was needed to prevent or relieve financial hardship") had not been satisfied. It must not be forgotten that the Council had a statutory obligation to ensure that the conditions in regulation 6 were satisfied before making payment.
47. It is now said by Mr Bowen that the Council could, and should have, made inquiries of the claimant's parents about their financial position but this ignores the fact that the onus was on the claimant's parents to adduce the relevant evidence. The Council had to make a decision on the information then open to it but by the time it refused the application and indeed when the present judicial review application was commenced, it had not received any information to show that payment of the claimant's school fees by the Council was needed so as to avoid or prevent hardship for the claimant's parents. Thus the claimant would also fail on this ground.

(v) Could the Council as the local education authorities be "satisfied that the course of education to which the payment relates [was] suitable for the pupil [namely the claimant]"?

48. This issue is also now academic but it is necessary to stress that the wording or regulation 6(c) means that the issue is whether the Council is satisfied of the suitability of the course of education pursued by the claimant and not merely whether the course of education is actually suitable. Of course if no reasonable Council could fail to be satisfied, then a decision of the Council that a particular course was suitable for a pupil could be impugned.
49. I am very conscious that the claimant and his family have at all times passionately believed and still believe that the education provided for the claimant at Summerhill was "suitable" but it is clear that a contrary view was consistently held by the Council as Summerhill did not provide efficient education and training for pupils with special educational needs. Very significantly part 4 of the claimant's SSEN stated that West Heath was the appropriate school for the claimant.
50. In particular as I have explained in paragraphs 17 and 18 above, it is noteworthy that SENDIST in its decision of 16 February 2004 concluded in paragraph (n) that "we have decided that Summerhill cannot meet Tertius' special educational needs but West Heath can". No challenge was made to that decision. As I have explained in subsequent decisions at the annual review, no changes were made to the claimant's SSEN.
51. I know that the OFSTED report speaks highly of Summerhill and its ability to educate those subject to SSENs. The Head of West Heath has spoken of the problems which would have faced the claimant if he had moved to that school in the year before GCSE examinations. Nevertheless it seems clear that the Council was and remained satisfied that the course of education for the claimant for the academic year 2008/2009 to which the payment related at Summerhill was a course of education which was not suitable for the claimant. Surprisingly no proper application for a reassessment of Part 4 of the claimant's SSEN had been made.
52. In those circumstances, in my view it cannot be Wednesbury [1948] 1 KB 223, unreasonable or irrational for a Council to hold that view especially as it had the support of the SENDIST decisions to which I have referred in paragraphs 17 and 18 above and which was not the subject of an appeal. I stress that I am not considering whether Summerhill was the appropriate school for the claimant in the 2008 - 2009 academic year but in the words of regulation 6 the issue is a different one of whether the Council was or could be "satisfied" about the suitability of the course to which the answer must be in the affirmative.

(vi) Should any relief be granted to the claimant even though the Council had a discretion as to whether to grant assistance under the 1977 regulations?

53. This issue is academic in the light of my previous findings. The critical factor is that the Council had a discretion whether to provide assistance under these regulations as regulation 4 contains the word "may" and not the word "must". This in my view makes the task of Mr. Bowen very difficult.
54. In my view there are many reasons why the Council might have refused to make payment under the 1977 regulations even if condition 6 had been satisfied but as this issue is academic, I will not extend the length of this judgment by listing them except to refer to the failure of the claimant's parents to seek a new statutory assessment, which I will describe in greater detail in paragraphs 66 to 75 below. If the claimant had been successful on such an application, part 4 of the claimant's SSEN would have been amended and the Council would have had the responsibility for paying the claimant's fees at Summerhill.

(vii) Conclusion

55. For those reasons I reject the claimant's claim that he or his parents are entitled to reimbursement of his fees for 2008/2009 at Summerhill pursuant to the 1977 regulations. By the same token, I am unable to accept the complaint of the claimant that the Council acted in breach of its public duties in not making payments under those regulations to the claimant's parents especially as first the claimant's parents had not made a proper application for assistance under those regulations; second at the time when this judicial review application was started, the claimant's parents had failed to provide details of why "payment [of the claimant's school fees] was needed to prevent or relieve financial hardship"; and/or third they had shown why the Council should not or could not have been "satisfied that the course of education to which the payment relates [at Summerhill was] suitable for the pupil [namely the claimant]".

VI The Rationality Issue

(i) Introduction

56. The first decision challenged by the claimant is the Council's final refusal at the Panel Meeting on 11 August 2008 to amend the claimant's SSEN by removing the reference to West Heath in Part 4 and to replace it with a reference to Summerhill for the period up to July 2009. This decision was subsequently confirmed by way of reconsideration of a fresh and second similar decision on 10 October 2008 which followed the decision of SENDIST to strike out the claimant's appeal against the Council's decision on 17 September 2008.
57. The case for the claimant is that those decisions were irrational and disproportionate in that any reasonable education authority given its decision not to issue school attendance proceedings in the previous four years against the claimant's parents would or should have accepted first that Summerhill provided suitable education for the claimant and second that such education was capable of meeting the claimant's special educational needs at far better value for the Council than West Heath provided. The claimant attached special importance to the facts first that in the 2008 – 2009 academic year the claimant was engaged at Summerhill in a learning process in the final year of his International GCSE course and second that he was also settled and happy at that school.
58. In support of his case, Mr Bowen also contends that there is clear evidence from which it could be inferred that the Council plainly believed that the claimant's parents had made suitable arrangements in funding the claimant at Summerhill School because of its failure to use statutory machinery open to it to bring proceedings against the claimant's parents and/or to make alternative arrangements for the claimant's education.
59. The case for the Council is that it has at no time accepted that Summerhill provides efficient instruction and training nor is an appropriate placement to deliver the special education provision the claimant requires pursuant to his SSEN.
60. In any event, the Council contends there was an alternative remedy open to the claimant which was to seek a reassessment of his educational needs in accordance with the statutory procedure set out in section 328(2) of the 1996 Act which enables a parent to request the local education authority to make a re-assessment of the SSEN and this carries with it a right of appeal to SENDIST.
61. The issues which arise in considering the irrationality challenge are:-

(a) Whether the claimant has and has had a suitable alternative remedy of seeking a reassessment which precludes him from obtaining relief in the present proceedings ("The suitable Alternative Remedy issue");

(b) Whether the failure of the Council to bring enforcement proceedings against the claimant's parents for sending the claimant to Summerhill rather than West Heath means that the Council accepted that Summerhill provided suitable education for the claimant ("The enforcement proceedings issue");

(c) As the Council had a duty under section 324(5) to "arrange that the special educational provision specified in the [SSEN] [namely education at West Heath] is made for the [claimant]" unless "the child's parents had made suitable arrangements for the [claimant]", whether it follows that the failure of the Council to insist that the claimant be educated at West Heath means that the Council were satisfied with Summerhill as a suitable school for the claimant ("The section 324(5) Point");

(d) Whether the decision to insist that Summerhill was not the appropriate school for the claimant was irrational bearing in mind that it was his last year before his International GCSE examinations ("The Examination Issue"); and

(e) Whether the claimant's delay in bringing the claimant for judicial review precludes him from succeeding. ("The Delay Issue").

62. Before dealing with these points, it is necessary to make two preliminary points. First, the task of the court is not to see whether it agrees with the decisions of the Council, which are under challenge on the present application, but to conduct the totally different exercise of ascertaining whether any such decisions contain an error of public law. So my role on this application is limited and it must be stressed that this application cannot be used as an appeal on factual matters such as what the claimant's SSEN should state about where he should be educated.
63. 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 . . ."

64. The second preliminary point is to appreciate first that the SSEN provided that the school where the claimant's needs were to be satisfied was West Heath and not Summerhill and second that this decision has been unsuccessfully challenged in the appeal to SENDIST.

(ii) The suitable alternative remedy issue

65. The Council contend that the claimant's parents had an alternative remedy as they could have sought a statutory assessment pursuant to the 1996 Act. So it would have been open to the claimant's parents to obtain redress by requesting reassessment in accordance with the statutory procedure set out in section 328(2) of the 1996 Act, which enables a parent to request the local education authority to make a re-assessment of the SSEN.
66. Further, any parent dissatisfied with any such re-assessment decision could appeal to what is now the First-Tier Tribunal (Health, Education and Social Care Chamber) and what was previously SENDIST. On such an appeal, the Tribunal would be obliged to carry out a merits review which, of course, is of much wider scope than that which is permitted on the present application or on any judicial review application. In addition there is a right of appeal to the SENDIST against a refusal of re-assessment. These statutory remedies constitute suitable alternative remedies especially as they permit a merits review followed by an opportunity to appeal any subsequent decision of this tribunal.
67. The case for the claimants on this issue is in the words of Mr Bowen's written reply skeleton that "with the benefit of hindsight (particularly following the Ofsted report in November 2007) perhaps they should have done". He contends that this is not a good point for the Council because it was not until the middle of 2008 that the claimant's parents received legal advice. There is no evidence as to when the claimant's parents first sought or received advice.
68. It is not an answer to a defence to a judicial review claim that there was a suitable alternative remedy but the claimant had no knowledge of it. Indeed in a substantial proportion (if not the vast majority) of cases in which a claim for judicial review had been refused because there was an alternative remedy available, the claimant was unaware of that alternative remedy; that does not matter as there is no reason of principle or any decided authority which requires the claimant to have knowledge of an alternative remedy before the court will dismiss a claim for judicial review because there was an alternative remedy open to the claimant.
69. It must not be forgotten that judicial review is a remedy of the last resort and the courts will not grant a remedy if there is an alternative remedy available. In other words, it is a hard-edged issue of whether there was a suitable alternative remedy and the existence of such a right is a complete answer to the judicial review claim. In any event, even if the claimant's parents had made an application for a re-assessment in mid-2008 that would have provided a suitable alternative remedy and by then they had legal advice and they would have been well aware of the difficulties which they would have had in paying the fees due in September 2008.
70. It is also said that the decision in May 2008 to appeal against the refusal to amend the claimant's SSEN was a result of incorrect advice from the Kent Law Clinic. There is no evidence of what advice was sought from that entity, when it was sought and what the advice was. That might possibly (and I express no views on it) give the claimant some rights against the Kent Law Clinic but it does not mean that he did not have the suitable alternative remedy of obtaining a statutory assessment. Even when the claimant's present solicitors were instructed in or prior to August 2008, an application for a statutory assessment remained still as a suitable alternative remedy but surprisingly it was not exercised especially as I explained because it must have been abundantly clear by then the claimant's parents might have had or would have had difficulties paying school fees for the 2008/2009 academic year.
71. In reaching the conclusion that there was this form of suitable alternative remedy available to the claimant and his parents, I have not overlooked the fact that the statutory right is that of a claimant's parents while the claimant is bringing the present claim but the claimant is bringing the claim through his parents. In my view, this is not a relevant factor any more than it might have had significance as being capable of being used by the Council to defeat the claim by the claimant's parents for assistance under the 1977 regulations on the basis that the claimant is bringing that claim.
72. Otherwise in all cases where there was a dispute about the suitability of a school for a child subject to a SSEN, it could always be said that an application to the appropriate tribunal by the claimant's parents would never be a suitable alternative remedy to a claim by the child for judicial review. That argument ignores the realistic position which is that the child and the parent should be regarded as one entity for these purposes in this type of judicial review application.
73. It is also said that until the beginning of the academic year 2008-2009, the claimant's parents were able to pay the school fees at Summerhill but I do not accept that this means that there was not a suitable alternative remedy for three reasons. First, if the SSEN had been amended so that in Part 4, the school specified was Summerhill, the claimant's parents would have obtained the substantial benefit of having been relieved of their obligation to make payments of school fees and that would be a benefit for any parent. Second, the claimant's mother has explained that her husband had not been taking drawings since 20 February 2008 and so the claimant's parents must have been aware shortly after that time that they would encounter difficulties in making payments of school fees very shortly after that time. Third, in any event, by September 2008 (which was after the date when the first decision under challenge was made) it must have been clear to the claimant's parents that they could not pay school fees then due and even then an application for an amendment of the SSEN still remained as a particularly suitable alternative remedy.
74. After I reached this decision, I came across the apposite comment that "where Parliament has introduced a new procedure to deal with a particular problem which it perceives to exist, the court should hesitate long before considering that procedure to be less satisfactory" (per Collins J in R (G) v Immigration Appeal Tribunal [2004] 3 All ER 286 [11]). The alternative procedure falls exactly into that category and that fortifies my conclusion that as there was an appropriate alternative remedy for the claimant, I must reject the claim that the decision of the Council to refuse to amend the claimant's SSEN so that Summerhill became the nominated school can be challenged in judicial review proceedings as irrational. That means that this claim must be dismissed but, as I will now explain, there are other grounds for dismissing this application.

(iii) The enforcement proceedings issue

75. This and the remaining points are now academic as this irrationality claim must fail and so I will do with these issues relatively briefly. The first way in which it is said that the Council must have been satisfied that Summerhill was providing suitable education for the claimant is that (a) if the Council had considered that Summerhill was unsuitable and not capable of meeting the claimant's SSEN, then it was under a statutory duty to start school attendance proceedings pursuant to the provisions in sections 437 – 443 of the 1996 Act; but (b) (what is of the greatest importance according to Mr Bowen) is that the Council failed to invoke this procedure and (c) this means that the Council must have regarded Summerhill as suitable for the needs of the claimant.
76. Under section 437 (1) of the 1996 Act, it is provided that:-

"if it appears to a local education authority that a child of compulsory school age in their area is not receiving suitable education, either by regular attendance at school or otherwise, they shall serve a notice in writing on the parents requiring him to satisfy them within the time specified in the notice that the child is receiving such education"

"(3) if – (a) a parent on whom a notice has been served under sub-section (1) fails to satisfy the local education authority, within the period specified in the notice, that the child is receiving suitable education; and

(b) in the opinion of the authority it is expedient that the child should attend school,

The authority will serve on the parents an order (referred to in this Act as a "school attendance order"), in such form as may be prescribed requiring him to cause the child to become a registered pupil at a school named in the order..

(8) in this Chapter - ..

""suitable education" in relation to a child, means efficient full-time education suitable to his age, ability and aptitude and to any special educational needs he may have."

77. The case for the claimant is that if the Council had not accepted that Summerhill was a suitable school, it would have been bound by reason of its duty under section 437(3) of the 1996 Act to issue and to serve a school attendance order on the claimant's parents by reason of section 441(2) of the 1996 Act and it would have had to require the claimant's parents to ensure that the claimant then became a "registered pupil" at West Heath.
78. The school attendance process would have resulted in the Council having a discretion to bringing proceedings in the Magistrates Court and if convicted, the claimant's parents would have been liable on summary conviction to a fine not exceeding level 3 on the standard scale. Mr Bowen attaches great importance to the Council's attitude in the claimant's case to its mandatory obligation to serve the notice in section 437(1) of the Act and to obtain a school attendance order. As I have explained, it is said that the failure of the Council to seek an attendance order proves that the Council had really accepted Summerhill as being a suitable school for the claimant's education and so it should have amended the claimant's SSEN.
79. Mr Bowen explained that he was not suggesting either that some form of estoppel arose in favour of the claimant or his parents against the Council as a result of its failure to seek an attendance order or that the Council's failure to seek an attendance order frustrated the reasonable expectations of the claimant or his parents in some way.
80. I am not satisfied that it is appropriate to draw the inference which Mr Bowen seeks to draw from the failure of the Council to seek to bring or to seek an attendance order as showing that the Council considered Summerhill to be providing suitable education for the claimant for three separate but interlinking reasons.
81. First, the Council has explained why it did not seek an attendance order and this shows why no inference can be drawn from its failure to seek such an order. Mr David Holland on behalf of the Council has explained in a witness statement that the Council had always maintained that Summerhill was not an appropriate placement in terms of meeting the claimant's special educational needs as outlined in his SSEN but that their experience has shown that where there are highly complex special educational needs issues, it was inappropriate to take cases through the Magistrates Court. The Council has not altered its position since the claimant started at Summerhill which is that West Heath, and not Summerhill, was the suitable school for the claimant to be educated at.
82. He stated that:-

"In the local authority's view there is a fine balance between being dogmatic and inflexible about enforcement action that is available to it and in this case respecting but not agreeing with the strongly expressed views of a young innocent and his parents. It should not be assumed that just because the course of enforcement action is available to a local authority that it should always be taken. In this case where I am not accepting that Summerhill could meet the [special educational needs of the claimant] the Council determined that it would serve no useful service and not be to the immediate benefit of the young person to proceed with attendance action. The local authority's view that it was likely that such action would have further aggravated relationships with [the claimant] and his parents and be seen as further confrontation. The authority was of the view that [the claimants parents] had taken responsibility for [the claimant] by arranging his placement at Summerhill and while it remained the view that Summerhill could not meet his [special educational needs] the local authority by visiting the school, was of a view [the claimant] would not be at risk there".

83. This was a perfectly understandable approach on the part of the Council especially as the claimant and the Council had opposing and deeply entrenched views on where the claimant should be educated as at all the annual reviews and indeed on every possible occasion, the claimant and his parents made it clear that they were determined that he should remain at Summerhill while the Council stated that it believed that this was not a suitable school for the claimant but that West Heath was. I have already explained that after the claimant attended at West Heath for a short period, he left it relatively speedily and the inevitable inference is that he was never going to settle at or stay as a pupil at West Heath because he preferred Summerhill as the SENDIST explained.
84. This factor has to be considered together with the second matter which is the clear evidence that the Council was at every opportunity making it extremely clear to the claimant and his parents that they wished the claimant to be educated at West Heath and not at Summerhill. Indeed they kept open a place for the claimant at West Heath and paid very substantial sums for fees for him. For the academic year 2003-2004, the Council paid full fees of £38,106.66 for the claimant. Indeed for the academic year, 2008-2009 the Council paid fees for a reserved place for the claimant at West Heath. In total, between September 2003 and March 2009 the Council paid £87,788.46 to West Heath to keep a place open for the claimant.
85. Third, the council was continuing to ensure that West Heath and not Summerhill appeared in Part 4 of the claimant's SSEN. SENDIST agreed with the Council when it rejected the appeal from the claimant's parents for Summerhill to be named in part 4 of his SSEN in both March 2003 and February 2004. It also refused to register the appeal of the claimant's parents on 22 July 2008 and on 17 September 2008 it dismissed the third parental appeal on jurisdictional grounds. This shows that the Council continued to maintain that Summerhill was not an appropriate school for the claimant but that West Heath was. I am sure that the claimant's parents appreciated that the Council held this view.
86. In my view, this shows clearly that there was much evidence which entitled the Council to continue to regard the suitable school to meet the claimant's SSEN not to be Summerhill but to be West Heath and its failure to take enforcement proceedings against the claimant does not indicate that it regarded Summerhill as providing education which met the special needs of the claimant.

(iv) The Section 324(5) Point

87. The Council was under a duty pursuant to section 324 of the 1996 Act to ensure that it arranged for the claimant to receive the special educational provision set out in the SSEN by attending West Heath unless the claimant's parents had made "suitable alternative arrangements". That provision states (with emphasis added) that:-

"(5) Where a local education authority maintain a statement under this section then – (a) unless, that the authority – (a) (i) shall arrange the special educational provision specified in the statement is made for the child.."

88. This provision means that a child need not be educated at the school specified in the SSEN if the parents of the child have instead made "suitable arrangements". This point is made clear by the Code of Practice issued by the Department of Education Skills pursuant to section 313 (1) of the 1996 Act because the code states that:-

" 8.97 If the parents choose to make provision for their child, the [local education authority] must be satisfied that the school is able to make special educational provision for the child that meets their special educational needs before they are relieved of their duty to arrange provision in an appropriate school".

89. Mr Bowen contends that the failure of the Council to "arrange" for the claimant to be educated at West Heath means that the Council must have been satisfied that in the words of the section that "the child's parents has made suitable arrangements" by educating the claimant at Summerhill.
90. This contention has to be considered in the light of the evidence of Mr Holland to which I have referred in paragraph 83 and which shows that the Council at all times regarded West Heath (and not Summerhill) as the suitable school for the claimant's education. After all, the Council has always kept a place open for the claimant at West Heath at some considerable expense to itself. In total, between September 2003 and March 2009 the Council paid £87,788.46 to West Heath to keep a place open for the claimant. It also appreciated the strength of feeling expressed by the claimant and his parents about their wish for him to be educated at Summerhill and not West Heath. Of course when the claimant attended West Heath, he left very soon after his arrival.
91. My conclusion was that although the Council considered that Summerhill was not a suitable school for the claimant, it did not invoke its rights to move him to West Heath for understandable reasons. First, as the officers of the Council explained, they concluded that the claimant was not at risk at Summerhill although they remained convinced that he should have been educated at West Heath. Second, the Council was aware that any action taken to move the claimant would cause serious problems in terms of opposition from him and from his parents. Third, the Council believed in the words of Mr Holland that "there is a fine balance between being dogmatic and inflexible about enforcement action that is available to it and in this case respecting but not agreeing with the strongly held views of a young person and his parents". I find that to be a persuasive factor.
92. In essence, the reason why I am unable to agree with Mr Bowen is because of reasons, which are similar to those which I have set out for rejecting the contention that it is not possible to infer that the Council was satisfied with the claimant being educated at Summerhill from its failure to take enforcement action against the claimant's parents.

(v) The Examination Issue

93. Mr Bowen contends that it was irrational of the Council to refuse to amend the claimant's SSEN bearing in mind that he was in the second year of his course to take five IGCSE exams as at the start of the 2008/2009 school year. He seeks to derive assistance from the Principal of West Heath who has drawn attention to the problems of the claimant moving schools with a year to go before the exams.
94. It is important to bear in mind first that she did not state that such a move would be impossible; second that even if she had said that, the SSEN still specified West Heath as the prescribed school for the claimant; third it cannot be irrational for a Council to keep to the school specified in the SSEN which had not been challenged on an application for a re-assessment and which had been upheld by SENDIST; fourth an application for judicial review cannot be used as a means of appealing a judgment of the Council; and fifth it is very surprising that the claimant's parents did not invoke properly their very important right to request a re-assessment of the claimant's SSEN for the academic year 2008 - 2009, which is the last year of his IGCSE course.
95. In my opinion this complaint also fails. I should stress the significance to be attached to the identification in part 4 of the claimant's SSEN of West Heath (and not Summerhill) as the appropriate school for meeting the claimant's educational needs and the fact that SENDIST has refused after hearing the evidence to change that specification.

VII The Delay Issue

96. I have already given permission and in those circumstances the Council rely on section 34(6) of the Supreme Court Act 1981 which provides that:-

"Where the High Court considers there has been undue delay in making an application for Judicial Review, the court may refuse to grant (a) leave for the making of an application or (b) any relief sought on the application, if it considers that the granting of the relief sought would be likely to cause substantial hardship to, or substantially prejudice the rights of any person or be detrimental to good administration".

97. As the claim has to be dismissed for the reason which I have outlined, there is little point in reaching a final decision on this point but I should state that I find the Council's submissions very persuasive.

VIII Conclusion

98. I know the claimant and his parents will be disappointed that they have been unsuccessful but for the reasons which I have explained and notwithstanding Mr Bowen's sustained and detailed submissions, this application fails and must be dismissed.