England and Wales High Court (Administrative Court) Decisions

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

		Sitting at: Cardiff Civil Justice Centre 2 Park Street Cardiff CF10 1ET
		5th November 2009

HIS HONOUR JUDGE MILWYN JARMAN QC:

Introduction

1. By a claim form dated 19 September 2009 the claimant, who is a boy of some 16 years of age and to whom I shall refer as "A", challenges the decision of his local education authority not to provide him with transport to a college ("X College") where he is now continuing his further education.
2. The decision attacked is a decision of the Local Education Transport Panel dated 26 August 2009. The summary of the claim is as follows. A contends that it was not for that panel ("the Panel") to make decisions about education provision which is properly a matter of education assessment. In particular, it is said that it was not for the Panel to decide that A should attend a three day course rather than a five day course. Alternatively, it is said that that decision was perverse. Secondly, it is said that the education authority is required to treat college and school students equally and that the decision in question fails to do so. Thirdly, it is said that the Panel has failed to have regard to relevant factors including A's preference, his need for exercise and the effect of its refusal. Fourthly, it is said that the decision is vitiated by procedural error: A was not informed of the case he had to meet, and he was not aware of the information which the Panel had to make its decision about the courses. Finally it is said that the Panel failed to have regard to the disability equality duty under Section 49 of the Disability Discrimination Act 1995.
3. The remedies that have been sought include declarations that the decision is unlawful; a quashing order in respect of the decision; a mandatory order that A be provided with transport throughout the duration of his course; and consequential relief.
4. It is of course an anxious decision for both parties. A was born with a syndrome known as Williams Syndrome which is an uncommon sporadic condition. Some of its characteristics include that of being outgoing and excessive, and talking with a language development in excess of cognitive ability. It involves or can involve hyperactive compulsive behaviour with limited attention span. Hypersensitivity to noise is also common, as are coordination problems and heart defects.

The statutory scheme

5. Up until A was 16 he was attending school in his local area and was provided with free transport. Once he had reached the age of 16 the regime changed. There is no dispute about the scheme which applies to him. It is set out in the Education Act 1996 in sections 508B and 509AA to 509AC. The following provisions are relevant:

"509AA (1) A local education authority shall prepare for each academic year a transport policy statement complying with the requirements of this section.

(2) The statement shall specify the arrangements for the provision of transport or otherwise that the authority consider it necessary to make for facilitating the attendance of persons of sixth form age receiving education or training—

(a) at schools,

(b) at any institution maintained or assisted by the authority which provides further education or higher education (or both),

(c) at any institution within the further education sector, or

(d) at any establishment (not falling within paragraph (b) or (c)) which is supported by the Learning and Skills Council for England or the National Council for Education and Training for Wales.

…

(7) The authority shall—

(a) publish the statement, in a manner which they consider appropriate, on or before 31st May in the year in which the academic year in question begins, and

(b) make, and secure that effect is given to, any arrangements specified under subsections (2) and (3).

509AB …

(2) A statement prepared under that section shall—

(a) specify arrangements for persons receiving full-time education or training at establishments other than schools maintained by the local education authority which are no less favourable than the arrangements specified for pupils of the same age attending such schools, and

(b) specify arrangements for persons with learning difficulties receiving education or training at establishments other than schools maintained by the authority which are no less favourable than the arrangements specified for pupils of the same age with learning difficulties attending such schools."

The Disability Discrimination Act 1995 section 49A(1) provides:

"49A General duty

(1) Every public authority shall in carrying out its functions have due regard to—

(a) the need to eliminate discrimination that is unlawful under this Act;

(b) the need to eliminate harassment of disabled persons that is related to their disabilities;

(c) the need to promote equality of opportunity between disabled persons and other persons;

(d) the need to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons;

(e) the need to promote positive attitudes towards disabled persons; and

(f) the need to encourage participation by disabled persons in public life."

6. Under section 509AB of the 1996 Act the Learning and Skills Council ("the LSC") has issued guidance entitled Gudiance to Local Authorities in Preparing their Transport Policy Statements for Learners of Sixth Form Age ("the LSC Guidance"). That guidance is just that; it is a guidance only. The following provisions of the LSC Guidance are particularly relevant in the particular case. Paragraphs 7 and 9 provide as follows:

"It is important that the Local Authority does not differentiate between providers or institutions in its arrangements. The arrangements must be provided for learners of sixth form age who are engaged in learning or training at:

• a school;

• a further education institution;

• an Authority maintained or assisted institution providing higher or further education; …"

"9. Each Local Authority is advised to take their own legal advice when preparing the Transport Policy Statement and devising a local response to transport needs, to ensure they are exercising their duties and powers in a manner which complies with the legislation and public law."

At paragraphs 12 and 13 the assessment of arrangements is dealt with. Under those paragraphs this is said:

"Local Authorities need to satisfy themselves that they have made the transport arrangements or arrangements for financial assistance necessary to facilitate learners' participation in education or training. In doing so, they should consider the needs of the most vulnerable or socially excluded learners."

"13. Young people should have genuine choice in the courses available to them at 16 (and increasingly at 14 with the 14-19 reforms) and be supported to access their choices. Local Authority transport policies must be supportive of reasonable choice. In defining what is 'reasonable' Local Authorities will want to take into account any complaints in respect of local Transport Policy Statements. We would expect reasonable choice to include enabling learners to choose courses outside their home Local Authority boundaries if it makes sense for them to do so."

Learners with learning difficulties and/or disabilities are dealt with in paragraphs 24 to 27. The latter says this:

"The Local Authority may assess learner needs in more detail beyond the Section 139A assessment. Arrangements cannot be limited to those learners who have been previously assessed as having a statement of SEN."

I pause there to observe that A does not now have such an statement.. Under paragraph 28 this is said:

"However, Local Authorities have a duty under the Education and Skills Act 2008 to encourage, enable and assist the participation of learners with LDD up to the age of 25 in education and training. It follows, therefore, that it is good practice for Local Authorities to make available information about transport arrangements in order to enable these learners to participate."

And then paragraph 32 says this:

"The Transport Policy Statement is intended to inform learners and parents about what transport arrangements are available locally. As such, it should be clear and provide sufficient detail to enable learners and parents to understand the provision available. The statement must set out what the Local Authority's overall transport policy is in regard to learners, what the main objectives are, and the rationale behind the policy."

In appendix 2 to that guidance there is a blank template for a local authority transport policy statement.

7. This scheme has been given some judicial scrutiny. In S, R (on the application of) v Education (Waltham Forest) [2006] EWHC 3144 (Admin), Underhill J considered the scheme in relation to an autistic child. At paragraph 30 the learned judge dealt with the decision of a panel in that case. The judge said this:

"I accept that it is not necessary that a panel of this kind conducting … a 'low level administrative appeal', designed…to take 'a second view', should in every case hold an oral hearing. It may indeed be that….a hearing would be unnecessary in the great majority of cases - although I am bound to say that getting the parties round a table has real advantages in avoiding misunderstanding and ensuring that the panel gets a clear appreciation of what may often be quite complex problems. But in a case where the panel does proceed without a hearing, in my view it is essential that both parties should be aware of what the other is saying."

At paragraphs 32 and 33 the learned judge continued as follows:

"The question remains whether the defendants' decisions (either the original decision or the decision of the appeal panel) were unlawful on substantive as opposed to purely procedural grounds - that is, whether they were Wednesbury unreasonable. …

33… The regime under sections 509AA and 509AB is deliberately one where there are no absolute obligations on local authorities to provide transport, even as regards children with special educational needs. It is clear, in particular from section 509AB(3), that the authority's policy is intended to have regard to a range of discretionary factors, including in particular - at (a) - the reasonable practicability of the child receiving education if no arrangements were made and - at (d) - the cost of the provision of transport. In those circumstances it seems to me that parents have obligations too. They should not be encouraged to believe that they should do nothing to help to get their children to school on the basis that if they do not the local authority will have to…"

8. In R v Kent County Council ex parte C [1998] ELR 108 McCulloch J considered the question of school transport and whether in particular there should be free transport to a school because the grammar school was not the nearest school suitable to the learner in that case. The learned judge was there of course considering a different statutory regime. However, the learned judge, in referring to a number of cases concerning Dyfed County Council, said this:

"In my judgment: (1) a LEA cannot properly refuse to provide free transport on the basis that there is a nearer school which a child could attend unless it is of the view that the nearer school would be a suitable school for the child to attend, and (2) when considering a challenge to a local authority's refusal to provide free transport, if the refusal was based on the authority's view that there was a nearer suitable school, the function of the court is to see whether it has been shown that the authority's view about that school's suitability was lawfully reached, which in most cases will require no more than a consideration of the rationality of its conclusion."

The facts

9. In this particular case, as I have indicated, A suffered from Williams Syndrome. In a statement of special educational needs dated 19 April 2005, in accordance with Section 324 of the Education Act 1996, his needs were considered as a result of transfer to secondary education. In that assessment his motor and sensory skills were referred to. It was pointed out that he was receiving a series of exercises which appeared to be controlling a dislocated knee, but he had problems with coordination and spatial awareness. He had problems descending stairs and needed a handrail and plenty of time. His motor skills were assessed as one of his main needs. They were said to involve long term objectives which would remain in place for the duration of the statement. At that time his placement was into a main school and it was provided that he should receive transport on the school coaches initially, due to his physical vulnerability, but that would need to be reviewed at each annual review.
10. As he approached the end of his time at that school a transition report was prepared by Connections West ("Connections"), a local authority controlled company offering advice and guidance for the personal development of young people in the West of England. It is said to be a year 10 report. That is because A had been held back for one year. That report also referred to his current learning support needs and any strategies in place to help.
11. The following month there was an annual review of his statement of special educational needs. The date of the review meeting was 6 May 2009. The assistant head of the school attended, as did a representative of student support and A's parents. An officer of Connections was invited to the review but did not attend. The review indicated that the school supported A's transfer to X College. It was said in that review that a taxi would be necessary for him to travel safely to and from college as he was too vulnerable to travel by coach.
12. In the summary of that review it was indicated that A would be transferring to X College to do a life skills course. Again, it was emphasised that he would require a taxi to get to the college and return home each day because he was too socially naïve and vulnerable to travel by coach. It was indicated that he had completed four successful years at the school but that it was unanimously agreed that the course at X College would offer him learning and social opportunities which are more appropriate than those offered at an alternative, nearer college ("Y College").
13. The following month there was a further Connections assessment. Again, that emphasised that A's main needs included motor skills. He was still having physiotherapy on his legs, feet and knees. He continued to have problems with his kneecap. It was indicated that that work would be continued in the gym with supervision if he were to attend X College. He would also have the opportunity to go swimming.
14. The assessment then went on to look at the post 16 options for A and included this passage:

"We have discussed the above options and at present the preferred option is [X College] where he has been offered a place on a five day specialist course for young people with learning difficulties. This option is appropriate for A because it will provide him with the right level of support whilst still being included in a main stream environment. He would build on the things he has learnt at school but there would be more focus on independent skills and learning for a living and working."

15. The next section of the assessment dealt with the requirements of A's transition to post 16 provision. Under bullet point requirements the following were included:

"? A will require small group working sessions and ongoing support around his numeracy and literacy.

? A would benefit from 5 day provision as it will enable him to review what he is learning on a daily basis and ensure reiteration of basic and life skills.

? A cannot use unstructured time in a positive way."

16. As a result and following on from those assessments there was an application for free home transport to X College for A. The applicant was the officer from Connections, and the first application was made on a proforma form of some two pages dated 9 June 2009. A second application was made by the same person on behalf of A on 29 June 2009. Again, this was on a two page proforma. Under Part 5 of that application dealing with the student's personal needs this is said:

"A needs transport to college as he is a vulnerable young man who is in incapable of accessing public transport. He has Williams Syndrome and makes friends with anyone who talks to him. He does not have an understanding of personal safety or boundaries. This makes him extremely vulnerable. He has chosen [X College] as it offers a five day provision of education which is not offered locally."

17. The application was originally refused by an officer. A's parents then put in a statement in support of an appeal against that decision to the Panel. That statement was a detailed statement. It referred amongst other things to the fact that A had attended Y College for one day a week whilst at school, and there were a number of incidents said to have occurred there which gave cause for concern. In addition, there was concern expressed about Y College's ability to provide adequately for A's needs. Specific reference was made to the fact that the course at Y College was run over three days and that the course at X College was run over five days. Due to A's needs it was said that he required a full time course. The five day a week course was much more suitable because it provided him with frequent and constant repetition in his learning opportunities. The course at X College was from 9.30 am to 3.30 pm whereas the course at Y College was from 9 am to 4.30 pm, which was a longer day. The statement included a letter of support from A's GP. It was noted from that, as a consequence of A's difficulties and in particular the Williams Syndrome, supervised exercise is important for A for his cardiac and muscular skeletal problems. If he were to attend X College for a five day course, exercise would be included.
18. It was also pointed out that the syndrome was an uncommon genetic disorder but as it happened there was at least one other child with that syndrome who had attended X College and had undertaken the course which A was intending to follow. Reference was made to the Connections assessments, and in the summary of the statement it was pointed out that X College was an inclusive environment, that the students undertaking the learning for living course are included in the college, whereas at Y College they were part of a unit which is next to the college. It was said that the former was better for A.

The decision

19. The appeal went to the Panel, which considered the Transport Policy Statement ("the Policy") for learners aged 16 to 18 adopted by the defendant education authority. This was in the form of appendix 2 set out in the LSC Guidance. Under part 6 of that policy this question is posed:

"What help do you provide for learners with learning difficulties and/or disabilities including those over 19 or learners facing other difficulties in following their courses?"

This is then said:

"Free transport will be provided for disabled learners who are unable to access Sixth Form or College without such transport. The type of course attended should normally be included in Section 96 or 97 of the Learning and Skills Act 2000. Recreational courses will not normally be eligible for transport, unless the learner can provide evidence that through their own efforts they have attained a level of skill that would indicate that formal instruction on the subject might result in improved job prospects.

Where the learner has had a Statement of Special Educational Needs citing the need for transport, the LA will provide transport until the end of the academic year in which the learner is 19. In cases where a learner has a Statement of Special Educational Needs which does not cite a need for transport, a decision about whether to provide transport will be based on the merits of the individual case.

Disabled learners attending College should apply directly to their College. The College will assess the learner to ensure the course is appropriate to his/her needs. Assessment of transport need will draw together any information from Connexions to supplement information from a College and from previous provision by the Council.

Transport will also be provided on the same basis for these learners if aged 19 and 20 provided they are enrolled on a full time course before reaching age 19.

The nature of the transport provided will vary from a bus pass to a seat on a Council vehicle or a taxi according to the most efficient use of Council funds. In some cases a mileage payment may be made."

In Section 9 the question is posed:

"What help can learners apply for if they need to travel to a course that is beyond your Local Authority area?"

The answer is given thus:

"The LA will consider applications from disabled learners for transport to Colleges outside the area if the course is considered to be the nearest (by time or distance) appropriate course for the learner. Applications should be made to the LA Home to School Transport team.

The LA will also consider applications from disabled learners to attend a Sixth Form outside the area on the grounds of religious preference. Applications should be made to the Home to School Transport team."

And finally in Section 10 the question is asked:

"What help is available for learners who attend a further education institution which is beyond daily travelling distance and they need to stay away?"

The answer that is given says:

"The Residential Support Scheme may be available if a learner has to travel a long way and stay. Application should be made to the College concerned for them to seek funding from the Learning and Skills Council for this area."

20. The defendant education authority also issued guidance ("the LEA Guidance") for college staff relevant to this case. It is entitled "Home to College Transport: Guidance for College Staff 2009/10." In that guidance it was said that:

"Cases are considered individually by transport officers, and support is usually offered where:

1. The student is enrolled in a course that is included in Section 96 or 97 of the Learning and Skills Act 2000.

2. The college is the nearest establishment offering the course required.

3. The student has not achieved the age of 19 at the start of their course of study.

and either:

4. The student is prevented from using existing local transport provision by their needs; or:

5. There is no accessible transport available between the student's home and college."

21. The defendant also issued terms of reference in July 2008 to the Panel, which, it is emphasised on behalf of the defendant, is a non-statutory panel. Under those terms of reference the Panel was to consist of a representative from each of the following disciplines: namely, home to school transport, school admissions, education welfare, and special educational needs. It was provided that an elected member of the local authority could also be a member of the Panel.
22. That is what occurred in this particular case. The Panel considered the applications on 25 August 2009 and by letter of 26 August wrote to A's parents to let them know about the outcome of the meeting. The letter contains the following passages:

"The Panel consists of senior officers from the Special Educational needs, Education Welfare and School Admission services along with an Elected Member. Thus the panel is well placed to consider requests to review decisions on transport entitlement or discretionary provision of transport where necessary. The panel will also request clarification and advice from specialist staff in the Children and Young People's Services Directorate, partner agencies or elsewhere where required.

The panel considered the submission prepared by [solicitors on behalf of A] and yourselves and noted that [A] has previously been subject to a Statement of Special Educational Needs but this has now lapsed, [A] has Williams Syndrome, considerable detailed information of which was supplied in the submission, [A] until recently attended [Z School] and that his parents have sought a place at [X College] with the support of the Connections service …"

"The panel then reviewed the submission in some detail. It was noted that the courses offered at [X and Y Colleges] appeared to offer the same opportunities on content but that differed mainly only in the times of delivery, [Y] providing the course in three longer days and [X] delivering five slightly shorter days of study. The panel noted that you preferred that [A] undertook the 5 day course in order that he was fully occupied, and that you felt this would better address his needs particularly with reference to aspects of physical exercise, however the panel felt that this was largely a matter of preference and that matters outside the course in terms of other activities [A] may undertake could not reasonably form part of their consideration. The panel felt that the comparisons drawn between provision of [Y and X Colleges] confirmed that the content and nature of the courses was also clearly indicating the differences in timetabling.

Your concerns regarding travel times were noted but this did not alter the panel's view regarding the provision of transport as the relative times were largely notional and would vary from day to day according to traffic and other conditions. As the margin identified in the submission is around 12 minutes the panel did not feel this significantly affected their decision.

The panel also considered your various concerns regarding aspects of provision at [Y College],based on experience of an earlier day placement, however, it was felt that these matters were outside the panel's remit in considering the need to provide transport to [X College].

The panel were also concerned to note that there was existing transport serving [Y College] for students in the area with physical or learning disabilities as this was the nearest establishment offering provision to the majority of households in [the area]. Thus further students attending [Y College] would not materially increase the cost to the council. However, provision of an individual service to [X College] is likely to incur a cost of £9,000 to £10,000 per academic year depending on the best price available from a suitably approved contractor.

Therefore I regret to inform you that the panel felt that the original decision not to provide free transport from home to [X College] for [A] was correct and I naturally recognise that you will be very disappointed with this decision."

23. One member of the Panel, a Mr Newman, the Home to School Transport Manager employed by the defendant, filed a statement dated 6 October 2009 to expand upon the Panel's consideration. In that statement the original decision of the transport officer was referred to. It was said that that officer had had regard to the application form, the title of the course and the LEA Guidance. He also contacted Connections to inform them of the decision.
24. The defendant education authority normally confirms decisions in writing but in this particular case solicitors instructed by A's parents contacted the authority and confirmed their intention to appeal. Mr Newman then gave them advice on the process of the appeal during a telephone conversation. In dealing with the decision itself, the statement continued that he informed the Panel that some students did not travel home on the transport provided from Y College as they stayed to undertake other activities, but the Panel did not accept that it was necessary to deliver the course over five days solely due to its educational content and noted that the transport was not usually provided for students to attend social or physical activities at other establishments.
25. The Panel understood and took into account the preference for A to attend X College but felt that that preference was outweighed by the cost when an equally suitable course was available at Y College closer to home. The Panel did not consider it was within the terms of reference to consider the complaints regarding prior experiences at Y College.
26. Having looked at the factual background of this claim, I now turn in more detail to the grounds of challenge. I deal with them in the order which both counsel found it convenient to argue them at the hearing.

The role of the Panel

27. The first ground goes to the root of the role of the Panel. It is said that where a school is specified in part 4 of a statement of special educational needs, it is not open to a local authority to refuse to provide transport on the basis that other schools to which transport would not have to be provided are suitable. Reliance is placed upon a judgment of Sedley J, as he then was, in R v London Borough of Havering ex parte K [1998] ELR 402. At page 9 of the judgment, which considered the refusal to provide transport to a special school on the basis that three maintained schools could make appropriate provision, the learned judge said this:

"In my judgment [counsel] is right in her submission that the local education authority by its panel had no right to do any such thing. The purpose of a statement of special educational needs, while it stands, is to spell out what is to be the content of the local educations authority's duty to make provision under section 324(5)(a)(i). If it were open to a local education authority, whether by the school, attendance panel or any other members or officers simply to review the statement, particularly when it is a statement that has been amended by the specialist tribunal set up by statute for this purpose, there would be little point in having a statement. It would be possible by sidewinds for any statement to find itself being informally reviewed and in effect amended by a body which had no power to do either of those things."

28. It is submitted on behalf of A that there are three reasons why the authorities relating to such special education needs should be followed in this particular case. Firstly, the statutory scheme under consideration in those cases expressly invites consideration of alternative placements; see the former section 39(2)(c) Education Act 1944. That provides for consideration of whether registration has been arranged at a school nearer to the child's home and led to a debate about whether "suitable" in the paragraph modified "arrangements" or "school." Secondly, this case is not just about the suitability of schools providing the national curriculum or setting exam courses, it is about the suitability of specialist provision for students with individual needs. It is a complex and difficult matter reflected in express statutory provisions for assessment under Section 139 and 140 of the Learning and Skills Act 2000. Thirdly, a decision about education placement was made following special assessment. That assessment should be of need and provision based on practicalities of what can be delivered. Further, it is said the terms of reference of the Panel do not envisage an assessment of the appropriateness for alternative education provision but it focuses upon whether the policy has been properly implemented.
29. In response on behalf of the defendant local authority it is submitted that the statutory provisions refer expressly to the issue of the cost of providing transport. These are always very difficult decisions to judge. It is said that the submission that the special educational needs cases should be followed goes too far. It is pointed out that under Section 324 (5) (a) (i) of the Education Act 1996 it is provided that:

"Where a local education authority maintain a statement under this section, then—

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

(i) shall arrange that the special educational provision specified in the statement is made for the child…"

30. It cannot be right, it is submitted on behalf of the defendant, to say that the Panel could not depart from recommendations in assessments. To do so in effect give rise to a similar duty to that under the 1996 Act in respect of special educational needs, and that is a duty which simply does not apply in this case.
31. I prefer the submissions of the defendant under this ground. It does seem to me that the claimant's submissions put the matter too highly. In my judgment, it is the case that when considering an individual appeal from someone with learning disability or difficulties, then particular regard should be paid to those needs, but the claimant's submission in effect goes as far as requiring the Panel to regard itself as having a duty to provide free transport to the college set out in the assessment. I accept the defendant's submission that that is a step too far.
32. Secondly, it was submitted on behalf of A that the decision under appeal to the Panel is made by one of the defendant's officers. The Panel had the claimant's application, but otherwise relied upon the professional knowledge of the officers which derived from working with students other than the claimant. In general it is said that the appropriateness of provision for one person is not indicative that it is appropriate for another and that is a proposition which is not in dispute.
33. The submission continued that the members of the Panel in this case did not have the necessary knowledge or skills to make a decision about whether A should be educated at one college or another. None of them had met A or assessed his skills. The knowledge of the Panel as to the provision at each college respectively was limited. One of the Panel knew the colleges as a parent, another had no direct experience of the college, a third had liaised with students and the fourth had experience primarily of Y College. On behalf of A, therefore, it was submitted that this is not an expert panel in the usual sense of the word.
34. On behalf of the defendant that submission was accepted to some extent, but it was also submitted that the Panel members had considerable local knowledge and local expertise of college and courses. Again, under this head I prefer the submission of the defendant. It does seem to me that this was not an expert panel but the members combined had considerable local knowledge and some expertise in relation to the colleges and the courses they offered.
35. Accordingly, on the first ground I am not persuaded that the Panel lacked jurisdiction or competence to decide the difficult issue which was before it.

The rationality of the decision

36. The next main ground is one of perversity. There was no dispute between the parties as to the test to be applied. Unreasonableness is an objective concept which operates across a spectrum dependent upon the importance of the issues at stake. The test is high, as was emphasised on behalf of the defendant, but a claimant does not have to demonstrate a decision that is so bizarre that the author must be regarded as temporarily unhinged. What the term 'irrationality' generally means in this area of the law is a decision which does not add up, in which in other words there is an error of reasoning which robs the decision of its logic; see R v Parliamentary Commissioner for Administration, ex parte Balchin [1998] 1 PLR 1 at 13.
37. On behalf of A, it was said that this decision is irrational in that sense. Firstly, A has assessed motor skills and no provision has been made for them. Secondly, A is unable to entertain or educate himself and yet has been allocated to part time provision. Thirdly, A has an assessed need for repetition and yet has been given a shorter and more intense course. Finally, the decision is based on no proper evidence of assessment and is contrary to the evidence and assessment for which the system provides.
38. In response to those claims on behalf of the defendant, the following submissions were made. Firstly, there was documentary evidence as to what provision was made at X College. It is accepted that there was no written evidence of what was provided at Y College, but the Panel had some local knowledge, or at least some members of the Panel did. The educational element of the provision was identical. It is accepted, however, on behalf of the defendant that there was a difference in delivery times, as the Panel acknowledged. It was entitled to come to the view, it was submitted, that a three day course was satisfactory. The Panel had the benefit of the assessments from Connections.
39. I prefer the submissions made on behalf of A under this ground. I accept that some members of the Panel had local knowledge, and that the Panel had before it assessments of A's needs as to motor skills, his need to exercise, his need for repetition and the fact that the course preferred was a longer, less intense course. However, having regard to the terms of the decision letter as expanded in the evidence of Mr Newman, I am persuaded that the decision which the Panel reached was irrational. In my judgment it focussed, if not exclusively then to an inappropriately high degree, on the educational content of the respective courses and did not have proper regard to the effect of times of delivery or the intensity of the course on A or to his motor skills needs. It is said on A's behalf that the Panel missed the basis of his needs for physical activity which was listed as an educational need in the former special education needs assessment. It is listed in the Connections assessment as a learning need and advised upon by A's GP. In my judgment the Panel did not have proper regard to these factors.

Procedural fairness

40. The next main ground upon which A relies is that the decision was made as a result of procedural unfairness. No case was circulated by the Panel and the only notice which A had of the appeal was in a phone call to A's mother. The Panel proceeded on the basis of local knowledge without giving A a chance to respond and there was no evidence in support of the decision. The Panel asserted that it made expert assessment of the course content without having met A and without some of the members knowing anything about education or the colleges concerned. Finally, the Panel included a member with an interest in a particular aspect of the case, namely the cost; that is, the budget holder for the relevant budget and the line manager of the officer who made the decision under appeal. It is not suggested that that amounts to a free standing allegation of bias, but what is submitted is that collectively those factors amount to a material unfairness.
41. Against that on behalf of the defendant it is again emphasised that this is a non-statutory panel. I accept that to be the case. In my judgment, however, if an appeal panel is set up then there is a duty to proceed fairly. The defendant submits that the submissions made to the appeal panel were clear. It is accepted that it would have been preferable for the decision of the officer initially to have been received in writing, but is argued that the appeal submission demonstrated a good understanding of the case which had to be met. It was emphasised that this was a low level administrative decision-making panel, and that it is inevitable that such a panel will rely on local knowledge.
42. I accept the defendant's submissions to some extent, but I do not accept the contention that the procedure adopted made clear to A precisely what the concerns were. It was clear that the nub of the appeal was a decision as between X and Y College and whether the cost of transport to X College was prohibitive. But in my judgment it was not made clear to A or those dealing with the appeal on his behalf precisely what local knowledge or expertise it was said that each member of the Panel had. Accordingly, I am persuaded under this ground also that there was procedural unfairness going to the root of the fairness of this decision.

The Policy

43. Other points were made in relation to the Policy itself. Two main challenges were made to it. The first related to what was said to be the requirement of equivalence between school and college placements, and in support of the claim in this regard particular emphasis was placed on Section 509AB(2)(a). A was provided with transport to school and would still benefit from such provision if he completed year 11 there. The change from school to college has, on the Panel's decision, cost him transport provision. Any person with a statement who remains in school provision in the sixth form will get transport but those who go to college may lose it as A has, and that was submitted is a difference in treatment.
44. The defendant's short answer to that complaint is that it tends to ignore that the real choice in this case was between X College and Y College and transport would be provided to the latter. I prefer the defendant's submission under this head.
45. The second main challenge to the Policy has regard particularly to Section 509AB(3). It is said that the Policy does not refer to choice or the needs of those who could not attend a particular provision without transport assistance. The decision refers to choice, but only, it is said, to dismiss it. The Panel felt that it was largely a matter of preference. It is said that that was a material misdirection and a failure to consider a relevant factor, and to that extent I accept that it was.
46. Against that on the defendant's part it is submitted that the Policy must be read as a whole. In respect of the Policy, regard is had to the giving of free transport to disabled learners without such transport. Again, I prefer the latter submission. On a fair reading of the Policy as a whole in my judgment sufficient regard is had to these matters.

Disability Discrimination

47. Finally, it is said that the decision is contrary to Section 49A of the Disability Discrimination Act 1995. On behalf of A it is submitted that as a matter of interpretation, that provision applies to decision making as much as it does to policy making. I was referred in this instance under this head to a number of authorities. One of these authorities was a decision of the Divisional Court on 18 September 2008, namely R (Brown) v Secretary of State for Work and Pensions and others [2008] EWHC 3158 (Admin). It was a decision of Scott-Baker and Aikens LLJ, and the latter gave the judgment of the court.
48. At paragraphs 81 to 84 this was said:

"81. However, it is important to appreciate, as Dyson LJ held in relation to analogous provisions in section 71(1) of the Race Relations Act 1975, that the imposition of a duty to have "due regard" to the various identified "needs" does not impose a duty to achieve results. It is a duty to have "due regard" to the "need" to achieve the identified goals. This is a vital distinction: see R(Baker) v Sec of State for Communities and Local Government [2008] LGR 239 at paragraph 31.

82. What is meant by "due regard"? Dyson LJ stated, in the same paragraph in Baker, that "due regard" in the Race Relations Act provision meant the regard that is appropriate in all the particular circumstances in which the public authority concerned is carrying out its function as a public authority. The same principle applies here. There must, therefore, be a proper regard for all the goals that are set out in section 49A(1) paragraphs (a) to (f), in the context of the function that is being exercised at the time by the public authority. At the same time, the public authority must also pay regard to any countervailing factors which, in the context of the function being exercised, it is proper and reasonable for the public authority to consider. What the relevant countervailing factors are will depend on the function being exercised and all the circumstances that impinge upon it. Clearly, economic and practical factors will often be important. Moreover, the weight to be given to the countervailing factors is a matter for the public authority concerned, rather than the court, unless the assessment by the public authority is unreasonable or irrational: see Dyson LJ's judgment in Baker at paragraph 34.

83. What about the six "needs" to which public authorities must have due regard when carrying out their functions? The "needs" identified in paragraphs (a) to (c), (e) and (f) are goals, such as the elimination of discrimination that is unlawful under the DDA, or the encouragement of participation by disabled persons in public life. So public authorities have to have a proper regard for the need to achieve those goals.

84. Paragraph (d) is different, however. That paragraph places on public authorities a duty to have proper regard for the need "to take steps to take account of disabled persons' disabilities, even where that involves treating disabled persons more favourably than other persons". The phraseology is convoluted. It does not identify a goal which is an end in itself. However, in our view the paragraph imposes a duty on public authorities to pay "due regard" to the need to take steps to do two things which are means which will assist in achieving the goals identified in the other paragraphs in section 49A(1). First, public authorities must have "due regard" to the need to take account of the fact of disabled persons' disabilities in the context of "carrying out their functions". Secondly, public authorities must have "due regard" to the need to recognise that this may involve treating disabled persons more favourably than others. But we emphasise that, in both cases, no duty is imposed to take steps themselves, or to achieve results. "

49. The second authority referred to is R (JL) v Islington London Borough Council [2009] EWHC 458 (Admin), a decision of Black J which dealt with a child in need and the status of respite care. The court held in that case that because the local authority had failed to have due regard to the matters contained in Section 49A of the Disability Discrimination Act 1995 either when planning and drawing up the eligibility criteria scheme or subsequently, the initial assessment under the criteria and also later applications of the criteria including the core assessment had been flawed. The core assessment had been infected by the eligibility criteria and did not represent a proper untrammelled assessment of need.
50. On behalf of the defendant it was submitted that this is a generic duty. It is difficult to see how it adds anything in the particular circumstances of this case to the duty under Section 509AB, which is a specific duty aimed at a disabled person within the meaning of the Disability Discrimination Act 1995. It was accepted that it has some relevance but in the particular facts of this case it adds nothing to the challenges in relation to that legislation.
51. I am not persuaded that in this particular case the defendant education authority failed to have the regard which the statutory provision in question requires it to have. For the reasons I have already dealt with in considering Section 509AB, I am not persuaded that this ground is made out.

Conclusion

52. That means that in my judgment the decision is vitiated because it is irrational and fundamentally flawed with procedural unfairness. I was invited in those circumstances on behalf of A not to remit the matter back to another panel but to quash the decision and to declare that free transport to X College should be provided. I am not persuaded that that is the proper course for me to take in view of the findings I have arrived at. I am conscious that the members of the Panel would ordinarily have some local knowledge and expertise and they have to balance factors such as cost. I am not in a position to do so. That is a matter which has been entrusted by Parliament to the education authority concerned. In my judgment the proper course for me to take is to quash the Panel's decision and to remit the matter to be decided by a panel afresh. I will hear submissions as to whether that should be a freshly constituted panel.

HIS HONOUR JUDGE MILWYN JARMAN: Yes?

MR LAWSON: My Lord, yes, in our submission it should be a freshly constituted panel.

HIS HONOUR JUDGE MILWYN JARMAN: What are the practicalities?

MS HANNETT: My Lord, may I just take instructions?

HIS HONOUR JUDGE MILWYN JARMAN: Yes.

MS HANNETT: My Lord, I think the short answer is yes although I caveat that with an emphasis that it may be that if it is freshly constituted we don't entirely comply with the terms of reference for the Panel, because I am not sure we can necessarily get each of the persons involved with and I am afraid I don't have …

HIS HONOUR JUDGE MILWYN JARMAN: No …

MS HANNETT: … particularly precise instructions on that.

HIS HONOUR JUDGE MILWYN JARMAN: No.

MS HANNETT: My Lord, I can see why in the circumstances the claimant would ask for a freshly constituted … and I don't object to that in principle, I just soft soap that slightly with a 'there may be some difficulties in getting precisely' …

HIS HONOUR JUDGE MILWYN JARMAN: Yes. I mean I am fully appreciative of the difficulties of local education authorities. It seems to me if I simply direct that is going to be the case if it does mean that there is going to be some -- one hopes -- not too significant departure from the terms of reference, that that is something which can be…

MS HANNETT: Well my Lord, that was the point I was going to make, that if it transpires that we do find ourselves in difficulty I think the appropriate course would be for us to enter into a dialogue with the claimant …

HIS HONOUR JUDGE MILWYN JARMAN: That must be right, Mr Lawson …

MR LAWSON: My Lord, yes. They cannot have their normal panel so it is going to be a different panel and one hopes that they will do their best to find an appropriate panel.

HIS HONOUR JUDGE MILWYN JARMAN: But do you accept that the sensible course is if there are departures from the terms of reference that there is a dialogue between the authority and those representing A to come to a sensible pragmatic solution?

MR LAWSON: Indeed.

HIS HONOUR JUDGE MILWYN JARMAN: Could I ask that you, Mr Lawson, draw up a minute of order, let Ms Hannett see it and email it to the associate who will give you his email address? Thank you. Are there any other applications?

MR LAWSON: My Lord, I am in court tomorrow. In terms of a minute of order, can it wait until next week?

MS HANNETT: My Lord, I am also in court tomorrow so practically speaking I imagine the first time I will look at it is about 5pm tomorrow, so for my part unless it troubles my Lord terribly I am inclined to agree with Mr Lawson on that …

HIS HONOUR JUDGE MILWYN JARMAN: No … Well, it will obviously take some time to get the machinery into being, into progress, but that can be done without the formal order being issued so I have no difficulty about next week.

MR LAWSON: Thank you. My Lord, apart from the continuation of the anonymity order which is fully reflected in your judgment, I actually noticed one thing. I was going to pick on and it is intended to help, my Lord, just on a typographical error. When running through the points raised in respect of the first ground of claim and for the various statutory regimes, it was said that the regime led the first point in that list, and it is simply a case of that regime, and I think that regime as put would refer to the SEN regime whereas at the time, my Lord, that you said that regime, you would then have moved onto the Dyfed regime, so we are looking at talking about the two statutory regimes. I believe there is a point where it will appear from the judgment that the SEN regime is being referred to as actually I think, my Lord, intending to refer to the Dyfed regime at that point.

HIS HONOUR JUDGE MILWYN JARMAN: Well thank you, Mr Lawson, I will pick that up when I come to approve the judgment. Thank you very much for that.

MR LAWSON: There are two other matters I want to raise. One was simply there is a '[A]' in the judgment as well, which no doubt you will pick up as well.

HIS HONOUR JUDGE MILWYN JARMAN: There is a what?

MR LAWSON: There's a '[A]'.

HIS HONOUR JUDGE MILWYN JARMAN: Is there? I thought I had done so well to avoid it but … I will look at that as well.

MR LAWSON: And, simply – and this isn't a judgment, my Lord, it is simply to say for future references -- that a note passed to me, which I didn't need to take the court to earlier because it was really in support of the perversity point, was that points had been made in the second statement and in one paragraph in the submission to the Panel about differences between the content of the two courses, and I don't need to go into those now, but if in future anyone says, well, that wasn't there, we say it was there. And the final matter, my Lord, is to apply for the claimant's costs of the action to be assessed if not agreed and for a public funding detailed assessment of the claimant's costs.

MS HANNETT: My Lord, I don't oppose either of those.

HIS HONOUR JUDGE MILWYN JARMAN: No, thank you very much.

MS HANNETT: But my Lord, I myself have an application for permission to appeal. My Lord, I will take it very quickly. My Lord, three points: first, that there was an error of law in concluding the Panel was perverse, in that the Panel did have regard to those matters and their conclusions on those matters, the finding of fact -- the findings of fact, I should say -- that they were entitled to reach. My Lord, that is my first ground of appeal. My second ground of appeal is that … my Lord's judgment erred in law in concluding that there had been procedural unfairness. My Lord, given that it was a non-statutory panel, the level of procedure adopted was sufficient as a matter of law and my Lord, I say both of those grounds have a real prospect of success and further there is a compelling reason why my Lord should grant permission: this is a regime that has not been looked at by the Court of Appeal and it is an area that calls out for some clarification. Sorry, my Lord, I hope I put that briefly. It is always an unenviable task …

HIS HONOUR JUDGE MILWYN JARMAN: No, no, no …

MS HANNETT: … seeking permission, my Lord, when you have given judgment.

HIS HONOUR JUDGE MILWYN JARMAN: Do you wish to say anything, Mr Lawson?

MR LAWSON: Very briefly, just to respond. My Lord, we can turn back on the defendant the points that it made about discretionary decision making, because of course the question about unreasonableness is a question for the court to assess whether certain facts together make a decision cross a threshold. The court recognised what the legal assessment of that was and then made a judgment. It would, my Lord, as I have said, have been the first thing that we were going to ram home in reply, so we say that there is ample evidence that that threshold was crossed. In terms of the non-statutory being sufficient, on any basis procedures have to be fair an overall assessment has been made with a number of factors raised. There is an additional one, of course, which could be referred to at this point, which is the involvement of the chairman of the appeal panel in the first decision. And finally, if that were to happen, then, without delaying as to take instructions, at least for today's purposes, we would apply … but this is entirely dependent upon my learned friend…

HIS HONOUR JUDGE MILWYN JARMAN: I don't think you need to go that far.

MR LAWSON: On one of the points, my Lord.

HIS HONOUR JUDGE MILWYN JARMAN: I am afraid I am against you, Ms Hannett, it does seem to me that these are matters largely of discretion and the facts of this particular case, and I am afraid you will have to persuade their Lordships. …

MS HANNETT: My Lord, I am very grateful. I hear that. My Lord, I do have one further application and that is that, my Lord, a transcript could be expedited. I ask that for two reasons: in case the application is to be renewed the Court of Appeal; but frankly, far more importantly, of course, this is going back before a panel and it would be of great assistance, I think, to all of us if we had a copy of my Lord's judgment as soon as possible. I appreciate that that might not be in good time for the Panel but …

HIS HONOUR JUDGE MILWYN JARMAN: Well, I am afraid on recent showings it may not. I am afraid some of the transcripts do take some time. I will certainly make it a part of the order.

MS HANNETT: My Lord, I would be grateful and I appreciate it is out of your hands to some extent, but at least if the order is made then we have some stick to beat with.

HIS HONOUR JUDGE MILWYN JARMAN: It may have some effect, yes.

MS HANNETT: Thank you.

HIS HONOUR JUDGE MILWYN JARMAN: Well, may I thank you both very much for the way you have presented and prepared this case, which has made a difficult decision that much easier, and I am very sorry that I have kept everyone until 5pm.

MR LAWSON: Thank you, my Lord.