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Cite as: [2000] WLR 223, [2000] 1 WLR 223, [2000] UKHL 2, [2000] 1 All ER 876

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Burridge v. London Borough of Harrow and Others [2000] UKHL 2; [2000] 1 All ER 876; [2000] 1 WLR 223 (27th January, 2000)

HOUSE OF LORDS

Lord Browne-Wilkinson Lord Slynn of Hadley Lord Clyde Lord Saville of Newdigate Lord Millett

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

BURRIDGE (A.P.)

(RESPONDENT)

v.

LONDON BOROUGH OF HARROW AND OTHERS

(APPELLANTS)

ON 27 JANUARY 2000

LORD BROWNE-WILKINSON

My Lords,

I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Slynn of Hadley. For the reasons he gives I would allow the appeal.

LORD SLYNN OF HADLEY

My Lords,

This appeal is concerned with a right of a local education authority not to give effect to a parent's preference for a special school for her child on the grounds that the local education authority considers that the provision of such a place would be incompatible with the efficient use of resources.

The Education Act 1996 is a consolidating Act which re-enacts the relevant provisions of the Education Act 1993.

By section 9 of the Act of 1996 (the Act) local education authorities are required to have regard to the general principle "that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure."

Part IV of the Act makes provision for children with "special educational needs" being those who have "a learning difficulty which calls for special educational provision to be made for [them]" (Section 312(1)). A child has a learning difficulty inter alia if he has a significantly greater difficulty in learning than the majority of children of his age or "he has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area of the local education authority" (Section 312(2)).

Local education authorities are empowered to make special provision for children with special educational needs and in doing so they are required to have regard for the provisions of a Code of Practice issued by the Secretary of State pursuant to section 313 of the Act.

Where a LEA considers that a child for whom they re responsible has special educational needs and that it is necessary for the authority to determine what special educational provisions should be made, they must serve on the child's parent a notice stating that they intend to make an assessment of the needs and of the procedures to be followed (Section 323). Having considered this assessment and the parent's representations about it the authority must make and maintain a "statement" of the child's special educational needs, setting out the needs and the provision to be made. In particular, the statement must specify the appropriate type of school and if they are not required under Schedule 27 to specify the name of the school, then they must specify the name of the school which they think would be appropriate. When the statement has been made (unless the parent has made suitable arrangements) the authority must "arrange that the special educational provision specified in the statement is made for the child" (Section 324).

Schedule 27 lays down rules for the making of a statement. By paragraph 3(1) a parent on whom a copy of a proposed statement has been served must be enabled to express a preference as to the maintained, grant-maintained or grant-aided special school as to which he wishes his child to be educated giving reasons for such preferences. By paragraph 3(3)

The issue in the present case is thus whether attendance at the school named by a parent could be refused on the basis that "the attendance of the child at the school would be incompatible with . . . the efficient uses of resources." That in turn depends on what resources are to be considered.

The question arises in this way. The child ("F") was born on 19 February 1993 and two years later was diagnosed as having Rett Syndrome. It is clear that at all relevant times she has suffered from severe disabilities. In July 1995 she began to attend Whittlesea, a special school maintained by Harrow Education Authority in whose area her mother and she lived. The Harrow Education Authority began their statutory assessment of the child in 1995. In the early part of 1996 educational reports were made to the effect that F was happy and in June a consultant paediatrician wrote that her needs were well met at Whittlesea. A Home Visitor reported that the mother was happy with F's placement at Whittlesea. But from July 1996 the mother said that she was not happy with Whittlesea as a school for F. She was particularly dissatisfied with the physiotherapy and hydrotherapy facilities which she said could be provided much better at Grangewood, a special school maintained by Hillingdon Education Authority, a neighbouring borough authority.

On 30 August 1996 the Harrow Authority issued a final statement of education needs pursuant to Section 168 of the Education Act 1993 and the Education (Special Educational Needs) Regulations 1994 (S.I. 1994 No. 1047) to which were appended detailed medical, educational and social service reports. The statement set out the objectives to be met and the educational provision required to meet the special needs and objectives. It named Whittlesea School, "a day special school for pupils with complex/severe learning difficulties" as the appropriate school. By notice dated 31 October 1996 the mother appealed on the basis that F's needs were not being met at Whittlesea and that she wished her to be placed at Grangewood. Harrow replied that F's needs were being met, that the close relationship between health, social services and educational staff leading to a cohesive approach to meet her overall needs would not be so well managed in an out-of-borough school and that the extra cost involved in her going to Grangewood would not be justified as an effective use of resources, when there was a suitable place available with a Harrow school. The Special Educational Needs Tribunal, hearing the appeal pursuant to section 326 of the 1996 Act, in its decision dated 19 February 1997, after an oral hearing, concluded that the actual physiotherapy and proposed hydrotherapy arrangements at the school were sufficient and that Whittlesea could, on that basis, appropriately meet F's needs. They "accepted the LEA's arguments that F's attendance at Grangewood School would not be compatible with the efficient use of their resources. Even if [the mother] were to assume responsibility for transporting [F], the school place would cost the LEA in the region of £11,000 - £12,000 p.a. and we agreed that this sum was material." The Tribunal required that arrangements be made to involve her mother more in her educational programme and in meeting with therapists and school staff, but subject to that they dismissed the appeal in regard to the named school.

The mother appealed pursuant to section 11 of the Tribunal and Inquiries Act 1992. Moses J. accepted that parents had a right to express a preference for a particular school whether or not the children have special needs and that a local education authority has an overriding general obligation to comply with those wishes, so long as that is compatible with efficient education and it is not unreasonably expensive. He held, however, that in the absence of any provision equivalent to section 411(5) of the 1996 Act "paragraph 3(3)(b) is not to be construed as if the resources there referred to included the resources of another authority. It directs attention to the resources of the authority who has made the statement of special needs." He was satisfied that the Tribunal had balanced the efficient use of resources against the particular preference of the mother even if they had not expressly said so. He accordingly dismissed the appeal.

The Court of Appeal allowed the mother's appeal, set aside the decision of the Tribunal and remitted the matter for further hearing. They concluded that the Tribunal should not have limited their consideration of resources to those of Harrow, as they appeared to have done, but should have considered the use of resources by Harrow and Hillingdon (per Otton L.J. and semble per Sir Christopher Staughton) or generally (per Simon Brown L.J.). Not to look at other resources would result in a child in respect of whom a statement had been made being treated adversely compared with children who had no special educational needs or children with such needs but in respect of whom a statement had not been made.

Although leave was given by your Lordships' House to appeal, since no stay was ordered the matter came before the Tribunal again, following the order of the Court of Appeal, on 14 January 1999. By its decision the Tribunal ordered amendments to the statement of 30 August 1996 in so far as aspects of the programme for F were concerned, but otherwise they dismissed the appeal. The Tribunal accepted that Whittlesea was the appropriate school. The Tribunal rejected the argument that Grangewood was not a suitable school. However, they accepted Harrow's argument that F's attendance there would be incompatible with the efficient use of resources, but in doing so they had regard to the use of resources of both Harrow and Hillingdon. They found that the extra cost of F's attendance at Grangewood (including transport) would be approximately £7,000 a year and that, even if transport were not included and the cost of occupational therapy at Whittlesea were deducted from the extra cost at Grangewood, their decision would have been no different. Latham J. dismissed an appeal against this decision on 5 August 1999.

Despite this result it is accepted that the point of law arising out of the earlier proceedings ought to be decided by your Lordships' House.

It is to be noted first that the sections of the Act and paragraph 3 of Schedule 27, to which I have referred do not make any specific reference to the right of a parent to have a place in a special school outside the area of the local authority in which the child lives. This is to be contrasted with the statutory provisions relating to the admission to schools generally which, by virtue of section 424(3) of the Act, do not apply to children for whom a statement of special educational needs has been maintained under section 324.

Thus by section 411(1) a local education authority is to make arrangements for enabling the parent of a child in the area of the authority to express a preference as to the school at which he wishes education to be provided for his child in the exercise of the local authority's functions. By sub-section (2) authority is to comply with any preference expressed except, inter alia, by virtue of sub-section (3)(a) "if compliance with the preference would prejudice the provision of efficient education or the efficient use of resources." By sub-section (5)

In such a case it would seem that, when considering whether the parent's choice of a school outside the area would prejudice the efficient use of resources, the resources of the receiving authority and perhaps of both authorities would fall to be considered. It is said that the same must apply to the provision of a place in a special school for children with special educational needs despite the absence of any provisions similar to those in section 411(5) of the Act. It is said, if that is not done, there will be a discrimination which Parliament cannot have intended.

It seems to me, however, that the starting point is that Parliament has clearly established separate schemes, one for special schools and one (ignoring other exceptions) for other schools.

In that regard, it is to be noted that the general provision in section 411 was originally in section 6 of the Education Act 1980 whereas the provisions in regard to children with special educational needs were not enacted until the Education Act 1993 included them in Schedule 10 paragraph 3. There is nothing to suggest that the omission of the terms of section 6(5), now 411(5), or any equivalent provision from the special needs provisions was inadvertent. On the contrary, the proper inference was that it was deliberate. The provision for special needs seems, as I understand Harrow to submit, likely to be more costly out of the local authority's area than in the area, and proportionately more costly than the provision of out-of-borough education for children not requiring special educational need provision.

Moreover, it seems to me clear that if Parliament had intended a rule similar to that in section 411(5) to apply to special schools it would not have repeated in section 424(3) of the Act the provisions originally in section 9(2) of the Education Act 1980, which excluded special schools from the duty imposed by section 6(5) (now 411(5)) on local authorities in respect of admission to a school maintained by one authority of a child who is not in the area of that authority.

The fact that there is a right to express a preference under Schedule 27 (Schedule 10 to the 1993 Act) in respect of special schools does not mean that the duty of the authority is necessarily the same as that provided for in placements in other schools, where a parent also has a right to express a preference. It is intelligible that the duty in regard to out-of-area placements of different kinds of schools might be differently framed. As I see it, Parliament has drawn a distinction between special schools and other schools. Accordingly, it does not follow that if the resources other than those of the authority in whose area the child lives fall to be taken into account in regard to a non-special school that they must also be taken into account in regard to a special school.

In my opinion, further, Moses J. was right to have regard to the differences between the funding arrangements made for special schools on the one hand and other schools on the other. In the latter case, funding is in part geared to the number of pupils actually attending the school, in the former it is in part geared to the number of pupils for whom it is anticipated the school will need to provide places. This means that places may be provided for which if eg. a child leaves to go out of the borough, will not be utilised but the cost will be incurred. (see the explanation of this difference in DFE circular 2/94 at paragraphs 102 to 114).

It seems to me also relevant in considering the question as to whose resources are referred to in paragraph 3(3) of Schedule 27 to bear in mind that the scheme for special educational needs provision is for children for whom the local education authority is "responsible." Those are children, inter alia, who are "in their area" (section 321(3)). It is on the parents of such children that the notice of intended assessment and the statement of special educational needs is to be served and for such children that special provision is to be made. This points in my view to the resources concerned being those of the responsible local education authority. Such a result is reflected in the Code of Practice issued by the Secretary of State under section 313 of the Act, to which both the local education authority and the tribunal on an appeal must "have regard". That code in paragraph 4.41 states three considerations governing the naming of a school in a statement, one of which is that the placement is compatible with "the efficient use of the LEA's resources" (emphasis added). "The LEA" is the authority making the statement. The reference to "the LEA" is repeated in paragraphs 4.44 and 4.56 of the code. This is in no way inconsistent with the provision in paragraph 3 (4) of Schedule 27 that if an LEA proposes to name a school maintained by another local education authority, that authority, as well as the school's governing body, must be consulted. What it means is that the resources concerned are those of the authority whose resources will be used ie. the authority which pays.

I do not regard this result as undermined or excluded by reference to section 322(3)(a) of the Act which provides that a Health Authority if consulted may refuse to help a local education authority if the authority considers that "having regard to the resources available to them [the health authority]" may refuse help. Parliament made it clear there, as the Secretary of State did for the LEA in the code. It does not follow that references in paragraph 3(3) of Schedule 27 cannot, or do not mean "their resources." In my view that is what the words do mean.

I do not, in any event, consider that it can possibly be intended that the resources other than the two authorities directly concerned should be considered. That would place a very difficult task on the local education authority. If such an exercise had been intended, it is more likely that it would have been imposed on the Secretary of State.

Harrow relies on the argument that there is no specific provision for disputes between local education authorities to be resolved before the Tribunal. This is true though the Tribunal would seem to have power to obtain and receive the necessary information. That would be possible in a dispute between two authorities and, indeed, the question was so investigated on the second appeal in the present case. For the Tribunal to have to look more generally would seem to me to open up great difficulties. Although Harrow may be justified in saying that to look at even another authority's resources opens up difficult questions, I do not attach much weight to this argument about the lack of an appeal procedure.

There has been much discussion as to the effect of the Court of Appeal's judgment in Reg. v. Shadow Education Committee of Greenwich London Borough Council, Ex parte The Governors of John Ball Primary School (1989) L.G.R. 589. That was a case in which the Court of Appeal held that, for the purposes of section 6 of the Education Act 1980, local authorities could not adopt a policy giving priority to children within their own borough over children from outside their borough. That case, however, was concerned with provision in section 6 of the 1980 Act and not with the provision subsequently introduced into the legislation by the 1993 Act for special schools. Any reference to relevant resources in the judgment may be relevant to a section 411 case as I have in effect assumed but it does not affect the meaning of resources in paragraph 3(3) of Schedule 27.

I do not consider that section 9 of the Act means that parental preference is to prevail unless it involves unreasonable public expenditure. In dealing with special schools, the authority must also observe the specific provisions of paragraph 3(3) of Schedule 27. This does not mean that the parent loses the right to express a preference. A preference may be expressed but it is subject to the qualifications set out in paragraph 3(3), one of which is the efficient use of resources - in my opinion, the responsible local education authority's resources. It may be as a result that a child seeking to go to a special school out of his own local education authority's area may have more difficulty in doing so than a child seeking to go to another school. But that is what, in my view, Parliament has clearly provided.

I would, therefore, allow the appeal. The first Tribunal and Moses J. were right to have regard to the responsible authority's (ie. Harrow's) resources.

LORD CLYDE

My Lords,

I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Slynn of Hadley. For the reasons he gives I would allow the appeal.

LORD SAVILLE OF NEWDIGATE

My Lords,

I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Slynn of Hadley. For the reasons which he has given I too would allow the appeal.

LORD MILLETT

My Lords,

I have had the advantage of reading in draft the speech of my noble and learned friend, Lord Slynn of Hadley. I agree with it, and for the reasons he gives I too would allow the appeal.