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
		23/06/2010

Mr Justice Wyn Williams:

Factual History

1. P was born on 18 January 1993. He has suffered from a rare chromosomal abnormality since birth and he will continue to do so.
2. In the summer term of 1998 P began attending primary school. From the outset he was provided with additional teaching support and speech and language support. By 2000, however, it was clear to the head teacher of the school that P's needs were not being met and that he would benefit from specialist provision.
3. P's mother undertook a detailed investigation of possible educational provision. She concluded that P's needs would be met, best, at a Rudolf Steiner primary school in Aldermaston. P became a pupil at that school.
4. In 2003 P began attending the King's Langley School in Watford. That is also a Rudolf Steiner school. He attended that school until the end of the summer term 2009.
5. Rudolf Steiner schools take their name from a German educationalist of the 19^th century. It is unnecessary to describe the philosophy of Rudolf Steiner. It suffices to say that the schools which bear his name adopt a particular educational philosophy. P's mother has always been convinced (and remains convinced) that the philosophy of these schools has best suited the needs of P over many years.
6. P became 16 years of age on 18 January 2009. For many months before that date it had become clear that P would not be able to continue at King's Langley School after the summer term of 2009 – by which time he would be approximately 6 months beyond his 16^th birthday.
7. On 1 July 2008 a review meeting took place at the King's Langley School attended by many professionals and also attended by P's mother. Among the professionals present were two representatives of the Defendant, Ms Helen Gifford (a team leader employed in the special educational needs department) and Mr Tim Lister (a senior educational psychologist).
8. Detailed minutes of the meeting were taken. The minutes record that P's mother wanted him to attend an establishment known as The Mount Camphill Community College (hereinafter referred to as "The Mount") as from September 2009. The Mount is a residential college. It is run on "Steiner" principles. The minutes of the meeting record that the members of teaching staff from King's Langley who were present at the meeting strongly supported P's mother's point of view. The minutes also show that Ms Gifford and Mr Lister offered some practical advice to P's mother about how a move to The Mount might be achieved.
9. Between 10 October 2008 and 12 October 2008 staff at The Mount assessed P. Shortly thereafter, his mother was informed that a place was available for P at The Mount from September 2009.
10. On or about 18 November 2008 the Social Services Department of the Defendant began what is described as an initial assessment of P. The written record of the assessment describes that Mr Lister had referred P's case to the Defendant's Social Services Department. The reason for the referral is given within the record in the following terms:

"A referral was received from Tim Lister, Educational Psychologist. [The Claimant] needs to transfer to Key stage 5 provision in September 2009. [P] and his mother have been receiving support from Connexions and Tim Lister in respect of this, however Tim felt the wider social needs of [P] required assessment in terms of onward placement."

11. That part of the record dealing with P's education sets out his educational history in brief and then records that attempts were being made to identify the most appropriate establishment for P to attend after leaving King's Langley. This part of the record ends:-

"East Berkshire College has advised it cannot meet his needs and the family are keen for [P] to remain in Steiner education at The Mount, a residential school that takes children up to 19 years of age. Connexions are approaching the Learning Skills Council for funding for this. [P] has had a 3 day stay at The Mount where he was assessed as being appropriate for their pupil group which has several special needs students. [P] loved his time there and did not wish to leave. This provides a positive indicator that he will settle well there if funding of the placement should be secured."

In other sections of the record the author makes points about P's dependence upon his mother and upon the need to develop a care plan which will lessen that dependence.

12. At some stage, which is not pinpointed precisely in the evidence, the Defendant's Special Educational Needs Department began considering the possibility that P might attend a special school operated by the Defendant and known as Holyport Manor School from September 2009. By the end of 2008, at the latest, it had become clear that a place was available for the Claimant at Holyport Manor School.
13. At Holyport Manor School, P would be funded by the Defendant. As things stood in early 2009, however, the proposal was that P should attend The Mount contingent upon funding of his place being obtained from the Interested Party.
14. The organisation known as Connexions often acts on behalf of local education authorities in attempts to secure funding from the Interested Party and, in this case, Connexions was involved in seeking to persuade the Interested Party that it should fund a place for P at The Mount. It is not entirely clear when Connexions first became involved but that is not important. It suffices to say that the organisation was involved in some way from late 2008 onwards.
15. On 28 January 2009 a member of staff at the Mount completed a form which was ultimately to be sent to the Interested Party in support of the application for funding (Trial Bundle page 200 to 206). As I understand it the form was an annex to the application which would be made by Connexions. At any event the form completed by The Mount supported his placement at that college.
16. On 5 February 2009 Mr Lister produced a written report dealing with the proposals for P's education. His conclusion and recommendation was in the following terms:-

"From P's point of view, an integrated care and education package at a place he wants to be, using principles and routines with which he is familiar, represents an ideal solution.

From a restricted viewpoint of basic educational needs, an extended education placement at Holyport Manor would appear to provide adequately for his needs. Without seeing the care proposals following Social Care Services' assessment of P's needs, I cannot comment on the adequacy of the package that might be put together to meet P's wider needs beyond the school day. It is this latter issue which needs to be addressed, in my opinion, in determining the correct provision for P's future.

The evidence to date appears to support the contention that a Steiner environment is well able to meet P's overall needs."

17. On 17 February 2009 Ms Gifford wrote to Mr Beyer of Connexions. She described how P had been educated in a Steiner environment and then continued:-

"For P's post-16 education, the authority has approached Holyport Manor School, our own special school, and the school has offered a place in September 2009. It is possible that Holyport Manor School would be able to meet P's needs between 9am and 3.30pm but they do not offer the more holistic approach of a Steiner environment to which P is now so accustomed. P does not manage change well and so this could become an issue if he attends Holyport Manor School. Additionally, Holyport Manor School will be moving to a new site in September 2010 and there will be unavoidable change and disruption. It is far from clear how successfully P would manage such a situation.

Additionally, P's own expectations are that he will remain in a Steiner environment for post 16 and he has been clear that he does not wish to attend Holyport Manor School. There is potential for P's own feelings to impede his access to what is on offer at Holyport Manor School, if he were to attend there. Therefore, although a local authority funded school has offered P a place from September 2009, it is far from clear that such a placement would be successful and so I would urge that serious consideration is given to the request for P to be funded to attend The Mount."

18. This letter was copied to Ms Jackie Payne of the Defendant's Disabled Children's Team. On 24 February 2009 Ms Payne wrote to Mr Beyer expressing the view that P's education for 8 years had been very specialised and that if there was any way that it could continue in the same ethos "he would surely benefit from this."
19. On 26 February 2009 Mr Beyer completed a detailed document entitled "Moving Forward Plan". It was prepared by Mr. Beyer to support an application to the Interested Party to fund a placement for P at The Mount. It proposed that P should attend The Mount from September 2009. It also acknowledged, however, that a place was available for P at Holyport Manor School. In relation to this possible placement the Plan said:

"While in theory the local SEN school, Holyport Manor, would just meet P's basic educational needs, Holyport Manor would also be moving in September 2010. P does not manage change well, and he may very well struggle to adapt".

The Plan continued:

"It is agreed by all professionals working with P, education and social services, that the Mount is well able to meet P's holistic and educational needs and in an ethos that P has made great progress in."

20. On 12 March 2009 another review meeting took place. Ms Gifford, Mr. Lister and other professionals were present as well as P's mother. Ms Gifford confirmed that an application for funding had been made to the Interested Party. The minutes of the meeting record in clear terms that every one present at the meeting supported the proposal that P should be funded by the Interested Party to attend The Mount.
21. By letter dated 26 March 2009 addressed to Miss Gifford the Interested Party declined to fund a place for P at The Mount. The letter is not entirely easy to understand. The first page appears to assert in terms that the Interested Party would not fund the place at The Mount because a place was available to P at Holyport Manor School. However, the second page appears to suggest that the assessment of P's needs and the provision required to meet those needs had yet to be concluded. However, it may be the Defendant apparently took the view that the Interested Party had refused to fund a place at The Mount.
22. By the end of April 2009 at the very latest, the Defendant appeared to accept that P should be educated not at The Mount but at Holyport Manor as from September 2009. P's mother was not satisfied with this solution. She instructed solicitors. They wrote to the Defendant on 30 April 2009. Ms Gifford responded on behalf of the Defendant by letter dated 15 May 2009. The substantive paragraphs of that letter are in the following terms:-

"We are happy to continue P's statement of special education needs beyond the end of this academic year as long as P remains on the roll of the school. We continue to be of the opinion that Holyport Manor can meet P's needs for his post-16 education. However we are also approaching the 2 other nearer special schools to our area, Kennel Lane School in Bracknell and Arbour Vale School in Slough to see about whether they can meet P's needs as we are aware of P's feelings about Holyport Manor School.

None of these schools are Rudolf Steiner schools. Whilst we acknowledge that P has responded very well to the Steiner principles, we are of the view that an appropriate education can nonetheless be offered P as mentioned above. All of these schools would be a more cost effective arrangement for the local authority than P attending The Mount College and, as you will be aware, we are obliged to protect public funds."

The Claimant's solicitor's response was a very detailed pre-action protocol letter dated 4 June 2009. On18 June 2009 the Defendant provided a detailed response to the pre-action protocol letter.

23. Also in early June the Defendant sent a draft statement of educational needs to P's mother. I should say that prior to this draft the most up-to-date statement of educational needs which the Defendant had issued was 26 October 2005. In that statement Part 4 named the King's Langley School as the school at which P should be placed. No school was specified in Part 4 of the draft statement issued in June 2009. However on or about 19 June 2009 the Defendant issued a statement of educational needs in which Part 4 specified that P should attend "a school for young persons with moderate to severe learning difficulties."
24. Meanwhile P's solicitors had been in contact with the Interested Party. Apparently the solicitors wrote to the Interested Party on 30 April 2009. By letter dated 20 May 2009 the Interested Party wrote as follows:

"Thank you for your letter dated 30 April 2009. The LSC has not received an updated S.139 report and does not consider the report dated 26 February 2009 provides an adequate assessment of the learner's needs. However the position is that as P is under 19 and has a Statement of Special Education Needs and the local authority has identified a school which can meet those needs, he remains the responsibility of the local authority. Furthermore in the circumstances he would not meet the LSC"

This letter is clear in its terms. It indicates that the document entitled "Moving Forward Plan" prepared by Connexions was not an adequate assessment of P's needs. However it also indicates that the Interested Party was not prepared to fund a place at the Mount for P.

25. On 30 June 2009 the Claimant's solicitors wrote another detailed letter to the Defendant. It concluded by asking the Defendant to do two things; first to revise the assessment which had been made by Connexions in its document of 26 February 2009 so as to ensure that it properly complied with the statutory duties to which I refer below; second it asked the Defendant to consider exercising its power to award P a placement at The Mount. The Defendant replied on 6 July 2009. The relevant part of the letter reads:-

"I write to let you know that we will comply with your request subject to the following paragraph.

You mention that the Learning and Skills Council have told you that they contend that the assessment had not been properly performed. We have not been told of this. I should be grateful if you would let me know why the Learning and Skills Council hold this view. When we have heard from you we shall then be glad to revise the section S.139 assessment.

On the basis of that revised assessment we will consider afresh whether we should exercise our power to award P a placement at The Mount College. Finally we will then let you know whether we are prepared to make such an award."

26. Shortly before the Defendant's letter of 6 July 2009 P's solicitors had commissioned a report from Ms Vivienne Clifford, a chartered educational psychologist. She produced a written report dated 3 July 2009. Essentially she concluded that the best option for P's education from September 2009 was a placement at the Mount. There is no indication in the evidence before me that this report was sent to the Defendant prior to 16 July 2009.
27. On 20 July 2009 the Defendant wrote:-

"We have complied with your request made by way of your letter of 30 June both to revise the S.139 statement in relation to P and to consider exercising our power to place P at The Mount Camp Hill College.

I attach a copy of the revised S.139 statement together with a copy of the papers upon which it has been based.

We held a formal meeting on 16 July to consider the S.139 statement and our approach to its findings. I attach a note of the findings of that meeting. As you will see, we do not accept that it is necessary for a placement to be made for Ziggie at the Mount Camp Hill College and we offer a place instead at Holyport Manor School. I realise that this news will come as a disappointment to your clients. I note in passing that we have not yet been sent details as to what the Rudolph Steiner approach is and why it is essential (not merely desirable) for P. I have to say that our discussion yesterday might have been better informed had this been available.

Please take this letter as an offer of a place at Holyport Manor School. If accepted, we will insert this name into Part 4 of the new Statement without further ado. This school has on-site provision for speech and language therapy and occupational therapy, and will have no difficulty in meeting the provisions of the Statement of Special Educational Needs and the new S.139 Statement. We will offer home-to-school transport for P. As mentioned on another occasion, the school is to move to a new site in September 2010; the new site will have much improved respite facilities and it may be possible for P to avail himself of these from time to time if necessary.

Kennel Lane School in Bracknell Forest has also offered a place, and I have asked for this to be held open for the time being. P and his parents may care to visit before making a decision, though this visit may now have to be at the start of next term. I have to say that we will still need to check on the availability of therapies there (and the practicalities of arranging therapies there if necessary), but will do so if an interest is shown in Kennel Lane. In the circumstances, we will offer home-to-school transport to Kennel Lane too."

28. As is apparent from the letter of 20 July the Defendant maintains that it has carried out a lawful assessment of P pursuant to section 139A Learning and Skills Act 2000. Further and, according to the letter in a quite distinct process, the Defendant decided that it was not necessary for P to attend the Mount.

The Scope of these Proceedings

29. These proceedings were issued on 21 September 2009. In the Claim Form the Claimant specifies the decision to be judicially reviewed as the failure on the part of the Defendant to properly assess the Claimant in accordance with section 139A of the Learning and Skills Act 2000, including the placement which is suitable for the Claimant's post-16 education. The accompanying statement of grounds for judicial review specifies the remedies sought as i) a mandatory order requiring the Defendant properly to perform an assessment under section 139A of the Learning and Skills Act 2000 of the provision, including the placement, which is suitable for the Claimant's post-16 education; and ii) a declaration that the Council's decision that Holyport School would be a suitable educational placement for the Claimant's post-16 education is unlawful.
30. On 9 December 2009 Sir George Newman granted permission to the Claimant to amend the grounds for judicial review. In due course amendments were made but not to the prayer for relief. The Skeleton Argument presented on behalf of the Claimant makes clear the basis upon which the declaratory relief is sought; the Claimant alleges that the Defendant's decision that a placement at Holyport Manor School would be suitable educational provision is unreasonable in the Wednesbury sense.

Statutory Provisions

31. Section 1 of the Learning and Skills Act 2000 creates a body corporate called the Learning and Skills Council for England. Section 2(1) imposes an obligation upon the Council to secure the provision of proper facilities for –

"(a). education (other than higher education) suitable to the requirements of persons who are above compulsory school age but have not attained the age of 19,

(b) training suitable to the requirements of such persons….

Section 2(2) provides that facilities are proper if they are –

"(a) of a quantity sufficient to meet the reasonable needs of individuals, and

(b) of a quality adequate to meet those needs.

Section 2(3) directs the Council as to how it is to discharge the duty imposed upon it by section 1. It provides:-

"In performing the duty imposed on it by sub-section (1) the Council must –

(a) take account of the places where facilities are provided, the character of facilities and the way they are equipped;

(b) take account of the different abilities and aptitudes of different persons;

(c) take account of the education and training required in different sectors of employment for employees and potential employees;

(d) take account of facilities whose provision the Council thinks might reasonably be secured by other persons;

(da) act with a view to encouraging diversity in the education and training available to individuals;

(db) act with a view to increasing opportunities for individuals to exercise choice;

(e) make the best use of Council's resources and in particular avoid provision which might give rise to disproportionate expenditure."

Section 2(4) provides that provision is not to be considered as giving rise to disproportionate expenditure only because that provision is more expensive than comparable provision.

32. Section 13 of the 2000 Act is a provision aimed at persons with learning difficulties. Section 13(1) specifically provides that the Council must have regard to the needs of persons with learning difficulties in discharging its function under section 2 of the Act and, in particular, it must have regard to any report of an assessment conducted under section 139A or 140 of the 2000 Act. Section 13(2) provides:-

"(2) If the Council is satisfied that it cannot secure the provision of facilities for education or training which are sufficient in quantity and adequate in quality for a person with a learning difficulty who is over compulsory school age but who has not attained the age of 19 unless it also secures the provision of boarding accommodation for him, the Council must secure provision of boarding accommodation for him."

33. As is obvious the foregoing statutory duties are imposed upon the Interested Party.
34. Section 139A relates to assessments undertaken by local education authorities in England. Sub-section 1 provides:-

"(1) Sub-section (2) applies if a local education authority in England –

a) maintains a statement of special educational needs for a person, and

b) believes that the person who will leave school, at the end of his last year of compulsory schooling, to receive post-16 education or training or higher education."

Sub-section 2 provides that the authority must arrange for an assessment of the person to be conducted at some time during his last year of compulsory schooling.

35. Section 139B contains provisions relating to the interpretation of section 139A. By sub-section 3:-

"An assessment of a person is an assessment, resulting in a written report, of –

(a) the person's educational and training needs, and

(b) the provision required to meet them."

Sub-section 7 provides that "post-16 education or training" means post-16 education or post-16 training within the meaning of part 1 of the 2000 Act.

36. One other provision of this Act is should be mentioned. Section 139A(7) provides that in exercising its functions under that section the local education authority must have regard to any guidance issued by the Secretary of State.

The Assessment under Section 139A Undertaken by the Defendant

37. There can be no doubt that as a matter of fact the Defendant undertook an assessment which it then believed (and still believes) complied with section 139A of the 2000 Act. It then produced a written report which is to be found at page 142 of the Trial Bundle. The report is dated 16 July 2009. The document describes itself as an assessment relating to the learning difficulties of P in accordance with the Learning and Skills Act 2000 section 139. The document continues:-

"The document is intended to discharge the local authority's duty in P's case:

To make an assessment, resulting in a written report, of

a) the person's educational and training needs; and

b) the provision required to meet them.

No further detail is prescribed as to the form or content of such a written report, or whether it should contain a recommendation for a specific placement for a young person. The care needs of a young person are specifically excluded from a report."

38. The next section of the report details the documents and reports which were considered by the person or persons undertaking the assessment. The report then records, accurately, that no consultation took place with P or his family for the purpose of making the assessment save that which was undertaken for the purpose of producing earlier reports.
39. The report identifies P's educational and training needs as being a) to address his significant general learning difficulties; b) to address his speech and language difficulties; c) to address his social vulnerability; d) to address his general lack of confidence; e) to address his general delay with fine motor skills; f) to learn better to manage change. In respect of each of these needs the assessment purports to specify appropriate provision; it does so without any reference to a potential provider.
40. The report also identifies what it describes as more "general points" relating to educational provision for P. For example, the point is made that P should not be educated "in a mainstream setting" and several points are made as to the nature of the expertise required of those who would be called upon to teach and assess P.
41. The report does not recommend or specify any establishment at which P is to be educated or trained from September 2009. Further the report does not specify whether P is to be educated or trained at a school or some other educational or training establishment. While the word school is used on more than one occasion in the assessment the phrase educational setting is also used. No attempt is made to discuss the rival merits of The Mount and Holyport Manor; indeed they are not mentioned.
42. As I have said, the report refers, explicitly, to other documents upon which the assessment is based. They are the statement of special educational needs dated 19 June 2009, the minutes of the reviews of 1 July 2008 and 12 March 2009, the report compiled by the Defendant's Social Services Department of 26 November 2008, Mr Lister's report of 5 February 2009, the report prepared by The Mount of 28 January 2009 and the Connexions assessment report of 26 February 2009. It is to be observed that each of those documents, except for the statement of special educational needs, was written at a time when it was agreed by all concerned that P's educational needs were best met from September 2009 by a placement at The Mount.

The Defendant's decisions of 16 July 2009

43. Following the completion of the written report of the assessment under section 139A of the 2000 Act a meeting took place which was attended by three senior officers of the Defendant, namely the Director of Children's Services, Mr. C Turner, the Head of Children's Commissioning Ms. A Wellings and Mr. R Jones a senior employee in the Special Needs Department. They had before them the written report of the assessment and all the papers referred to in the written report. Notes of the meeting were taken. It is necessary to set out the substances of the notes in full.

"4. The meeting noted:

a) P's solicitors had asked for the S.139 report to be revised and a decision taken on whether the authority would use its discretionary power to fund a place at The Mount Hill Community College, which is a residential college of further education. This is P's preferred placement.

b) Though it is not open to the authority to name a college of further education in part 4 of a statement of special educational need, it is open to an authority to bring a statement to an end and then to exercise its discretion.

c) A statement of special educational need had been made naming no school in part 4 and the period of 2 months within which an appeal may be made to the Special Educational Needs and Disability Tribunal is now running.

d) The needs expressed in the revised S.139 statement were in accordance with the accompanying background statements, the current statement of special educational need, and the Moving On plan recently prepared by Connexions (the last two named here being present in the background papers).

e) Holyport Manor School, Kennel Lane School (maintained by Bracknell Forest Borough Council) and Arbour Vale School (maintained by Slough Borough Council) all confirmed their ability to meet P's needs as described in his statement. This is in accordance with the authority's expectation of such schools with regard to these needs.

f) Holyport Manor School and Kennel Lane Schools have offered places (Arbour Vale is full).

g) The needs call for modest amounts of therapy that can be met by the residential therapists and Holyport Manor School.

h) No residential provision is required; indeed the report by RBM's social care confirms that only minimal amounts of respite care are needed.

i) The Learning & Skills Council would normally be expected to make provision for a young person under the age of 19 only where the needs were either so great or so particular that they could not be met locally.

j) The placement some years ago at the Rudolf Steiner School in King's Langley Hertfordshire had been made on the grounds that

k) It was no more expensive than a placement would have been at Holyport Manor and

l) It had accorded with parental preference.

m) The fact that such a placement had been made did not indicate that the Steiner School was the only school that could meet the needs either then or now.

n) No information has been forthcoming as to the particular elements offered exclusively by a Steiner School and why P required these.

5. The meeting concluded that:

a) No requirement exists for Steiner education (however much this might be preferred by the young person and his family).

b) The needs can be met by any of these schools named above.

c) It was impossible to recommend the Learning & Skills Council that it should make a placement at a residential college of further education.

6. The meeting resolved that:

a) A place be offered at Holyport Manor School to P. A place should be offered as an alternative at Kennel Lane School if the authority is satisfied that the therapeutic needs can be met adequately at Kennel Lane School. If the authority can offer both schools then P and his family can decide which offer to accept. Home to school transport would be offered to either school.

b) The Learning & Skills Council be advised that it would be inappropriate for a placement to be made at a residential college of further education in the light of the ability of the authority to make further placement locally.

c) Having considered matters, the authority will not place P at a residential college of further education, whether The Mount Camp Hill Community or elsewhere.

d) The authority will defend these resolutions in any judicial review or appeal to the Special Educational Needs & Disability Tribunal."

44. As the letter of 20 July 2009 suggests the decisions taken by Mr Turner, Ms Wellings and Mr Jones were quite distinct from the assessment made under S.139A of the 2000 Act and the written report detailing that assessment. It seems clear from the notes of the meeting quoted above that the assessment was but one of the considerations taken into account in reaching the conclusions recorded in the notes.
45. At first blush it might be thought to be surprising that the Defendant's officers were addressing the issue of how the Defendant might approach any judicial review or appeal against the contents of the statement of special educational needs. On reflection, however, I see nothing surprising about the resolution to that effect. By 16 July it was clear that the Claimant's solicitors were actively contemplating issuing proceedings for judicial review and there was at least a possibility of an appeal against the statement of special educational needs.

Discussion

46. I deal first with the issue of whether the assessment undertaken by the Defendant resulting in the report of 16 July 2009 complied with S.139A of the Learning and Skills Act 2000.
47. In his oral submissions Mr Oldham QC suggested that it was permissible for me to consider both the written report and the notes of the meeting which followed the completion of the report in order to reach a conclusion about whether there had been compliance with S.139A. I do not accept that submission. It seems to me to be clear that the assessment and the report consequent upon it were quite distinct (and intended to be quite distinct) from the decisions taken by Mr Turner, Ms Wellings and Mr Jones. No other explanation of the documentation is credible, in my judgment. That being so the lawfulness of the assessment must be judged by reference to the written report which records the details of the assessment.
48. Section 139A(7) makes it mandatory for a local education authority to have regard to guidance issued by the Secretary of State when exercising its function under S.139A. Accordingly, the Defendant was obliged to have regard to any guidance issued by the Secretary of State when undertaking its assessment under S.139A and when making its written report of that assessment.
49. It is common ground that no "statutory guidance" had been issued by the Secretary of State as of July 2009. However, in April 2009 the Secretary of State issued a document, in draft and subject to consultation, entitled "Assessments Relating to Learning Difficulties: Guidance to Local Authorities". Mr George QC did not go so far as to submit that there was a mandatory duty to have regard to the draft guidance at the time when the Defendant undertook its assessment of P and produced its written report. Nonetheless he relied upon a number of passages in the draft guidance in order to seek to demonstrate that the assessment undertaken by the Defendant was flawed as was the written report which was the product of the assessment.
50. The key paragraphs relied upon by Mr George QC were these:-

"9. How do I ensure that the assessment report complies with the law?

9.1 The key to this is ensuring that the report is fit for its purpose. The assessment should enable the LSC and education, training and other support service providers to determine that the provision will meet a young person's needs.

9.2 Local authorities will have to satisfy themselves that reports of assessments are compliant with Section 139A of the 2000 Act.

9.3 A report on a young person's needs should identify the most appropriate provision not just the characteristics of the provision but the provider and the actual programme of learning required for the learner to achieve progression. It should also include support needed to access learning provision, sensory aides, aides to assist movement or manipulation, staff ratios, level of supervision needed, specific professional support, e.g. nursing or physiotherapy. This requires input from a number of agencies and professionals and should be collated, possibly using the LfLW framework, to allow appropriate provision to be identified and to inform the LSC's funding decision.

9.4 The report should be clear where and how the learner's needs can be met and identify most appropriate provision. When transition planning is carried out effectively the provision is identified at an early stage and the provider will have a good understanding of the learner's needs and can prepare to accommodate them well in advance. This is a change to the previous guidance and reflects the recent legal ruling made in the case of Alloway v The London Borough of Bromley (dated 17 September 2008).

9.5 It is important that the LSC receives this information in a timely and consistent manner to inform planning and development with providers to ensure the most effective use of funding and the availability of appropriate provision to meet the needs of young people."

51. As I have said, it is not suggested that the Defendant was under a duty to have regard to this draft guidance. As is clear from the extracts set out above, however, the draft guidance was based upon the decision in R (Alloway) v Bromley LBC [2008] EWHC 2449(Admin). It was obviously incumbent upon the Defendant to apply the principles set out in Alloway. If the scope of Alloway is accurately summarised in the draft guidance it was necessary for the Defendant to make an assessment and produce a report which was in keeping with the guidance. I turn, therefore, to consider the ambit of that decision.
52. The relevant facts in Alloway were these. The Claimant suffered from autistic spectrum disorder and epilepsy. He had a number of learning disabilities. He had attended a number of educational establishments. In September 2007 he was transferred to an establishment known as the South Downs College which was a college of further education maintained by the Interested Party. The Claimant commenced at that college without a full assessment of his needs under S.140 of the 2000 Act (which was, essentially, the predecessor section of sections139A and B). Subsequently an assessment under S.140 was undertaken and the issue in the case was whether that assessment was lawful and in compliance with the requirement of S.140.
53. Although the statutory provisions considered by the court in Alloway have different section numbers to the statutory provisions with which I am concerned there is no material distinction in their wording. Accordingly it is unnecessary for me to set out, again, all the relevant statutory provisions albeit differently numbered.
54. Mr David Elvin QC, the Deputy High Court Judge who heard Alloway, decided that the critical statutory provision for his consideration was S.140(4) which is now S.139B(3). For ease of reference I set out that provision again:-

"3. An assessment of a person is an assessment, resulting in a written report, of –

a) The person's educational and training needs, and

b) The provision required to meet them."

55. Mr Elvin QC decided that these statutory provisions should be interpreted as follows:-

"[These statutory provisions] in my judgment, require the following: (1) an assessment of (a) the subject's educational and training needs and (b) of the provision required to meet them; (2) a written report of that assessment.

In my judgment, the assessment of the provision to meet those needs should not be merely a set of recommendations as to what would in theory, or ideally, be required, but should identify what can actually (and realistically) be provided. To assess and report on merely theoretic provision would not, in my judgment, be provision which was "required to meet" the needs identified for the purposes of the section.

This approach is consistent with that adopted by Sullivan J in the context of SEN in the case S v Swansea City Council [2000] ELR 315 where, following an earlier unreported decision of Harrison J in ex parte W [1994], he underlined the fact that, where the question of "provision" was being addressed in this context, this clearly meant provision in the real world.

"Whilst the content of part 3 of the statement must not be dictated by a prior decision as to placement in part 4 (that would be to put the cart before the horse), it would be unrealistic to suggest that the tribunal was not entitled to be "influenced" in its findings as to the amendments to be made to part 3 by its decision to the P school. The prescription in part 3 of the statement has to be delivered in the real world by a particular school or schools: see the judgment of Harrison J in R v Secretary of State for Education ex parte W [1994] 27 May (unreported).

Provided it is appropriate to meet the needs specified in part 2 and the objectives specified in part 3, the prescription in the remainder of part 3 may be 'informed' by what is actually available at a particular school. It is, however, a corollary of this approach, that if a particular school is to be relied upon to meet the particular need, the tribunal must have accurately defined the need in part 2 and must have been able to satisfy itself that the school will be able to provide the special educational provision specified in the statement; see again Harrison J at pp13-14 of R v Secretary of State for Education ex parte W." (pp322G-323)

While the statutory context here is different from that considered by Sullivan J in S, in my judgment the same reasoning is compelling here. The statutory requirement is for provision to meet actual needs and this can only be met by assessing what is available in the real world. If the provision is not actually available, then it is difficult to see how it can meet the needs and assist the LSC in the discharge of its own functions subsequent to the report. It is accepted by Mr Oldham on behalf of the Council that at the very least, the Council must be reasonably satisfied that the stipulated provision can actually be met. Further, the Council must reach that judgment at the time of making its assessment and in reporting.

The requirement to report has also to be considered. ……The report is the result of the assessment, and, in my judgment, this means that the report must reasonably reflect in sufficiently clear and intelligible form the conclusions of the assessment. The report, like the giving of reasons, must be adequate and intelligible and state the principal important conclusions of the assessment so that they are tolerably clear, not only to the informed reader but in particular to the LSC which must have regard to them in discharging its own duty; see section 13 of the 2000 Act. The report must adequately cover the principal aspects of the assessment because of the LSC's duty to have regard to it, it will fail in its function as a report in the assessment process intended to inform the LSC's own duties if it does not sufficiently deal with those aspects.

That said, the content and level of detail in the report must depend on the circumstances of the individual case. Some cases will demand a greater degree of detail than others and it is primarily a matter for the Council in carrying out the assessment and writing the report as how it makes that assessment and expresses it in the report. The process is subject to the supervision of the court to ensure that it both complies with the legal requirement of [the statute] and also that it has acted reasonably in discharging its functions. As with decisions of this nature, the court will be slow to interfere on Wednesbury grounds with matters of judgment entrusted by statute to the Council. However, subject to what I have just stated, I would expect the report to cover the key matters arising with regard to the needs under [the statutory provisions] and the provision identified to meet those needs. If it fails in these respects it would not, in my judgment, amount to reasonable discharge of the duty to provide a written report of the assessment.

When approaching such a report and considering whether it meets the requirements of [the statute] it is necessary to bear in mind that it is not a commercial contract or statute which is under scrutiny. This is a common approach in public law cases covering a wide variety of areas where judgments are entrusted to expert bodies. As Sullivan J held in S page 329 by analogy with the planning cases of Sedan Properties Ltd v Secretary of State for the Environment & Macclesfield Borough Council [1978] 42 P&CR 36, the report "should be read as a whole and in a commonsense way". Clearly if that is an approach to be expected following a planning appeal, it would be unreasonable to require any higher standard of local authority producing a report under [the statutory provisions]. Nonetheless, even if that approach is taken, if it is clear that if the exercise has not been carried out lawfully or that there has been a material error in the process, then the court will intervene."

56. I agree with the interpretation of what is now Section 139B(3) set out in those extracts from the judgment of Mr Elvin QC. No useful purpose would be achieved by an attempt by me to express those principles in my own words. I should make it clear, however, that the principles elucidated by Mr Elvin QC are to be applied generally when considering whether an assessment and/or a report of an assessment complies with the statutory provisions. There is nothing in the language used in Alloway which suggests that Mr Elvin QC was confining his remarks to the particular facts of that case and I can think of no acceptable reason why they should be so confined.
57. In the written report prepared by the Defendant it records, specifically, that the statute does not prescribe the form or content of the written report or whether the report should contain a recommendation for a specific placement. That, of course, is true. Further, in the extracts from the judgment set out above there is no express reference by Mr Elvin QC to the need either to name or recommend a specific placement for the person who has been assessed. That said, I am left in no doubt that the making of a recommendation as to placement at the very least is a necessary requirement of the written report. I say that for these reasons. First, as Mr Elvin QC points out, the provision to meet needs should not be merely a set of recommendations as to what would in theory, or ideally, be required but should identify what can actually (and realistically) be provided. I do not see how that can be done without recommending the likely provider. Second, Mr Elvin QC makes it clear that the question of provision must be addressed "in the real world". How can that be done if no recommendation is made about the provider? Third, the obligation to undertake an assessment and to produce a written report arises when a local education authority maintains a statement of special educational needs for a person and believes that he/she will leave school at the end of the last year of compulsory schooling to receive post-16 education or training or higher education. The necessary belief on the part of the local authority will usually, if not invariably, be triggered by a belief that the person in question is to leave his or her school to take up a place at a specific educational establishment or, at the very least, at an educational establishment to be chosen out of a few possibilities. Fourth, the local education authority will know that the Interested Party must have regard to the report of an assessment conducted under S.139A if it is called upon to discharge any of its functions. How can it do that, if it is not told by the local education authority who is to be the likely provider of the educational needs of the person in question and whether the identified needs can be met by that provider?
58. It seems to me that the draft guidance published by the Secretary of State in April 2009 conveniently summarises the principles properly to be derived from the decision in Alloway. The Defendant was obliged to apply those principles when making an assessment and compiling a report of the assessment. I stress that this obligation arises not by virtue of the existence of the draft guidance; it arises by virtue of the decision in Alloway albeit that the draft guidance provides a convenient summary of the relevant principles.
59. In the instant case the written report does not recommend a placement at a particular provider of education or even suggest which providers could reasonably meet P's needs. In my judgment, the report espouses the theoretical approach which Mr Elvin QC regarded as unacceptable. I appreciate that the report should be read as a whole and in a commonsense way. In my judgment, however, the report fails to state the principal important conclusions of the assessment. Put shortly the reader of the report is left in the dark as to whether the assessment concludes that P's post-16 education should be undertaken in a school or college of further education and which school or college of further education can reasonably meet his special educational needs.
60. The written report is clear that the care needs of P were excluded from consideration. Was the exclusion of those needs from consideration permissible in the light of the statutory duty imposed upon the Defendant? In my judgment there is no clear cut answer to that question either in this case or generally. Section 139B(3) makes it clear that the assessment must be of "the person's educational and training needs". Clearly, on any view, it is the educational and training needs of the particular person which must be the focus of the assessment. I am not prepared to say, however, that an assessment of care needs will always be unnecessary. There may be instances in which the assessment of educational and training needs and the provision required to meet those needs can only be undertaken sensibly with some regard to the care needs of the person involved. Whether an assessment of care needs becomes a necessary part of the assessment, obviously, will depend very much upon the facts of the particular case in question.
61. In this case there is no need for me to consider definitively whether the assessment was flawed because it excluded P's care needs given my view that the assessment did not comply with "the Alloway" principles. Given the possibility that a consequence of this judgment is that there will be yet a further assessment under section 139A it is probably best to leave the assessors as much scope as is possible to carry out a substantive assessment which complies with the statutory provisions unhindered by a judicial view about whether this is a case in which assessment of care needs is a necessary part of the assessment.

The second ground of challenge

62. In a first draft of this judgment which was distributed to the lawyers for the parties this issue was considered in detail but in a specific context. I had proceeded on the basis that the resolutions made by the Defendant on 16 July 2009 (see paragraph 43 above) were made in the context that the Defendant was considering whether to exercise discretionary powers under section 15A Education Act 1996 or section 2 Local Government Act 2000. It was in this context that I reached conclusions about the lawfulness of the resolutions which were set out in my draft judgment.
63. I now understand that the Claimant withdrew the ground of claim based upon section 15A Education Act 1996 and did not pursue a claim in relation to section 2 Local Government Act 2000 notwithstanding the reference to that section in the pre-action correspondence.
64. The context in which the resolutions of 16 July 2009 was made is not clear. Further almost a year has passed since the decisions were made. Any assessment which is now undertaken in accordance with section 139A or any other statutory provisions will have to reach conclusions on the basis of the state of affairs as it exists at the time of the assessment. Accordingly, no useful purpose would now be served by my expressing a view upon the reasonableness of a decision taken in the past. A year is a significant period in the life of any young person. I am sure that the last year will have brought many changes in the life of P which will need to be assessed if a further assessment of his post-16 educational needs is undertaken.
65. The Statement of Facts and Grounds raise human rights issues, in particular Article 6. The Skeleton Argument presented on behalf of P relies upon Article 6 and Article 2 of the First Protocol of the Convention. In his oral submissions Mr George QC did not abandon the grounds based upon human rights but he acknowledged that the human rights grounds, of themselves, would not entitle him to succeed in the event that he was unsuccessful upon the grounds which I have discussed above. In these circumstances nothing is to be gained by a detailed discussion of human rights issues and I propose to resist the temptation to offer detailed and decided views on a topic when that is unnecessary.

Relief

66. In the light of this judgment I cannot grant the declaratory relief sought by P. However, I have found that the assessment resulting in the written report of 16 July 2009 did not comply with Section 139B(3) of the 2000 Act. It would certainly be open to me to direct the Defendant to perform an assessment and produce a report which was compliant with that statutory provision. If those acting for P intend to pursue an application for funding of a place at the Mount or any other college of further education in reliance upon the statutory provisions now in force there may be a purpose in having such an assessment and written report. I am prepared to deal with this aspect of the claim for relief at the handing down of the judgment.