Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal (held on 8 September 2009 under reference 09-01279) involved the making of an error in point of law, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to a differently constituted First-tier Tribunal (Social Entitlement Chamber).

DIRECTIONS:

A.          The tribunal must undertake a complete reconsideration of the issues that are raised by the appeal.

B.          In particular, the tribunal must investigate and decide whether it was any longer necessary to maintain Maria’s statement under paragraph 11(1) of Schedule 27 to the Education Act 1996.

C.          A Tribunal Judge of the First-tier Tribunal will give appropriate case management directions for the rehearing.

 

Reasons for Decision

1.           This case concerns the education of Maria. Her father is the appellant and Essex County Council is the respondent. The issues that arise concern: (i) the jurisdiction of both the First-tier Tribunal and the Upper Tribunal; and (ii) whether a statement of special educational needs may be maintained past a person’s 19^th birthday.

2.           I held an oral hearing of the appeal on 5 March 2010. Mr David Wolfe of counsel, instructed by Levenes Solicitors, represented Maria’s father. The local education authority was represented by its principal solicitor, Mr Derek Jones. I am grateful to both representatives for their written and oral arguments.

A.          History and background

3.           Maria was born on 26 August 1989 and became 19 in 2008. With that birthday, she was always one of the youngest pupils in her year group. She has Down’s Syndrome and has had a statement of her special educational needs since 1992. It was last amended in March 2006.

4.           She attended a school called C College and her parents preferred her to remain there rather than move on to further education. The local education authority took a different view. On 13 March 2009, they wrote to Maria’s parents saying that they would cease to maintain her statement on 31 August 2009. They explained that her needs could be met at a further education college without the need for local education authority oversight.

5.           On appeal to the First-tier Tribunal, the local authority applied for the appeal to be struck out. It argued that the tribunal had no jurisdiction to deal with the appeal, as Maria was no longer a child. The tribunal struck out the appeal:

‘Our conclusions are:

A. We recognise the general principle that pupils with Statements of Special Educational needs are able to remain in school until the end of the academic year in which their 19^th birthday is reached. We also recognise, as did Mr Jones, that there are certain circumstances in which discretion can be used to permit a pupil to remain at a school beyond the pupil’s 19^th birthday. We acknowledge that this discretion was used last year but the LEA is unwilling for Maria to remain in school for a further year i.e. until shortly before her 21^st birthday.’

B. Whilst Maria’s parents would like her to remain at C College, this required the LEA to maintain her statement. S.24 [sic] Education Act 1996 says that a local education authority may make and maintain statements of special educational needs for “children”. However, Maria is no longer a “child”, as defined by s312(5) Education Act 1996. Thus, this is not a case in which this Tribunal has jurisdiction. The appeal should be struck out.’

6.           The presiding judge gave permission to appeal, saying she had done so: ‘For clarification of the interpretation of “particular course” in the context of section 312(5) Education Act 1995 [sic].’ She explained:

‘The course that Maria attended at C College is partially modular in its nature. Commonsense and the usual interpretation of the law indicates that a girl of 20 years of age is no longer a child. However, s312(5) of the Education Act 1996 is arguably a “particular course”, as Maria was attending school, at the date of the Strike Out hearing.’

B.          The Upper Tribunal has jurisdiction to hear this appeal

7.           An appeal lies to the Upper Tribunal under section 11 of the Tribunals, Courts and Enforcement Act 2007 ‘on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision.’ The First-tier Tribunal struck out the appeal. The striking out of an appeal is not an excluded decision under section 11. But is it a ‘decision’?

8.           The meaning of ‘decision’ in section 11 has arisen in a number of cases before the Administrative Appeals Chamber. It has not been argued through in any case. It has been the subject of a number of concessions. Some judges have also argued that there should be an appeal as, if there were not, the Upper Tribunal would anyway have judicial review powers over the decision. If that is a valid consideration, it would mean that there are some decisions that are appealable in England and Wales, but not in Scotland or Northern Ireland. That cannot be right; the section must have the same meaning throughout the United Kingdom. Despite these reservations, the clear trend of the authorities in this Chamber is this: at least those decisions that bring proceedings to an end are appealable under section 11. The closest decision to this case is Synergy Child Services Ltd v Ofsted [2009] UKUT 125 (AAC) at [5], which concerned an appeal against a decision refusing to reinstate a case that had been struck out.

9.           This issue has not been analysed in the other Chambers of the Upper Tribunal. The Tax and Chancery Chamber has dealt with at least one appeal without considering the issue of jurisdiction. The case concerned an appeal against a decision to direct the hearing of a preliminary issue: Goldman Sachs v Commissioners for Her Majesty's Revenue and Customs [2009] UKUT 290 (TCC). It is too soon for the issue to have arisen before the Immigration and Asylum Chamber. The Lands Chamber does not have jurisdiction under section 11.

10.        On the authorities as they stand at the moment, I consider that the Upper Tribunal’s jurisdiction includes an appeal against decision to strike out a case, at least one that is not capable of being reinstated. The tribunal struck out the case for lack of jurisdiction. There is no provision for reinstatement of a case in those circumstances. The only remedy is review under an application for permission to appeal. (The Tribunal Procedure Committee appears to have proceeded on the assumption that the decision would be appealable.)

11.        I explained this position in outline at the start of the hearing. Neither representative argued that the Upper Tribunal did not have jurisdiction.

C.          The First-tier Tribunal’s power to strike out a case

The duty to strike out for lack of jurisdiction

12.        The First-tier Tribunal struck out the appeal under rule 8(3) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI No 2699):

‘(3) The Tribunal must strike out the whole or a part of the proceedings if the Tribunal—

(a) does not have jurisdiction in relation to the proceedings or that part of them; and

(b) does not exercise its power under rule 5(3)(k)(i) (transfer to another court or tribunal) in relation to the proceedings or that part of them.

There is no power in the rules to reinstate an appeal that has been struck out under this duty.

The power to strike out for lack of prospects of success

13.        Rule 8(4) provides:

‘(4) The Tribunal may strike out the whole or a part of the proceedings if—

…

(c) the Tribunal considers there is no reasonable prospect of the applicant’s case, or part of it, succeeding.’

The ‘applicant’ there refers to the appellant (see rule 1(3)), not the person who applied for the proceedings to be struck out. There is power to reinstate proceedings that have been struck out on this ground: rule 8(6)-(7).

Which provision was appropriate in this case?

14.        The duty under rule 8(3) only arises if a tribunal has no jurisdiction in relation to the proceedings. Diplock LJ defined jurisdiction in Garthwaite v Garthwaite [1964] P 356 at 387:

‘In its narrow and strict sense, the “jurisdiction” of a validly constituted court connotes the limits which are imposed on its power to hear and determine issues between persons seeking to avail themselves of its process by reference (i) to subject-matter of the issue, or (ii) to the persons between whom the issue is joined, or (iii) to the kind of relief sought, or any combination of these factors.’

15.        There is a distinction between: (i) a tribunal having no jurisdiction; and (ii) a case having no reasonable prospect of success. Rule 8(3) makes provision for (i); rule 8(4)(c) makes provision for (ii). In the case of (i), the test is whether the tribunal had authority to decide an issue. In the case of (ii), the test is what decision the tribunal is entitled to give on an issue. It may be that a tribunal has jurisdiction over an issue, but can only properly give one decision on the evidence. That case is covered by (ii), not (i).

16.        In my opinion, the basis on which the tribunal struck out the proceedings was more appropriate to rule 8(4)(c) than rule 8(3). The issue was whether it was necessary for the local authority to maintain the statement. That was within the tribunal’s jurisdiction. There is an express provision for an appeal on that issue in paragraph 11(2)(b) of Schedule 27 to the Education Act 1996. However, my opinion does not affect anything that I have to decide. The issue for me is whether the tribunal was wrong in law to strike out the proceedings. If it was, a rehearing is appropriate. If it was not, a rehearing is not appropriate regardless of whether the case is one of lack of jurisdiction or lack of prospects of success.

D.          The legislation governing statements

17.        Statements are authorised by the Education Act 1996, in particular Part IV and Schedule 27. There is also a Code of Practice on Special Educational Needs, issued by the Secretary of State under section 313. The First-tier Tribunal has to have regard to the guidance in the Code: section 313(3) and (5)(a).

Children for whom a local education authority are responsible

18.        Section 321(1) imposes duties on a local education authority to identify those ‘children for whom they are responsible’ who have special educational needs. Section 321(3) provides:

‘(3) For the purposes of this Part a local education authority are responsible for a child if he is in their area and-

(a) he is a registered pupil at a maintained school or maintained nursery school,

(b) education is provided for him at a school which is not a maintained school or maintained nursery school but is so provided at the expense of the authority,

(c) he does not come within paragraph (a) or (b) above but is a registered pupil at a school and has been brought to the authority's attention as having (or probably having) special educational needs, or

(d) he is not a registered pupil at a school but is not under the age of two or over compulsory school age and has been brought to their attention as having (or probably having) special educational needs.’

19.        Section 579 contains a general definition of ‘child:

‘(1) In this Act, unless the context otherwise requires-

…

“child” means a person who is not over compulsory school age; …’

20.        Section 312(5) contains a definition of ‘child’ for the purposes of Part IV of the Act, which deals with statements of special educational needs:

‘(1) In this Part-

“child” includes any person who has not attained the age of 19 and is a registered pupil at a school; …’

Assessing special educational needs

21.        The process of deciding whether a child needs a statement of special educational needs begins with an assessment: section 323. Depending on the assessment, the local education authority may be under a duty to make and maintain a statement.

Making and maintaining a statement

22.        Section 324 provides for a statement to be made and maintained:

‘(1) If, in the light of an assessment under section 323 of any child’s educational needs and of any representations made by the child’s parent in pursuance of Schedule 27, it is necessary for the local education authority to determine the special educational provision which any learning difficulty he may have calls for, the authority shall make and maintain a statement of his special educational needs.’

23.        The statement must contain the child’s ‘special educational needs’ and the ‘special educational provision’ to meet those needs. Both those expressions are defined by section 312.

Reviewing and amending

24.        In order to ensure that a statement is accurate and up-to-date, two processes are involved. There is a review (section 328), which is a reassessment that may show that it is necessary to amend the statement. Amendments are governed by Schedule 27.

Ceasing to maintain a statement

25.        The termination of a statement is governed by paragraphs 9 and 11 of Schedule 27. Paragraph 9 provides:

‘(1) A local education authority may not … cease to maintain, a statement except in accordance with paragraph … 11.

(2) Subparagraph (1) does not apply where the local education authority-

(a) cease to maintain a statement for a child who has ceased to be a child for whom they are responsible, or

…

(c) are ordered to cease to maintain a statement under section 326(3)(c), …’

Section 326(3)(c) applies if a tribunal orders a local education authority to cease to maintain a statement.

26.        Paragraph 11 provides:

‘(1) A local education authority may cease to maintain a statement only if it is no longer necessary to maintain it.’

The paragraph then provides for notice of decision and a right of appeal. The latter is conferred by paragraph 11(2)(b):

‘(2) Where the local education authority determine to cease to maintain a statement-

…

(b) the parent of the child may appeal to the Tribunal against the determination.’

E.          The caselaw

27.        The courts have had to interpret the provisions that govern when a local education authority may cease to maintain a statement. In particular, they have been concerned that the right of appeal under paragraph 11(2)(b) of Schedule 27 is effective. Mr Wolfe referred me to three authorities.

28.        S v Essex County Council and the Special Educational Needs Tribunal [2000] ELR 718 concerned this issue: does someone remain a child when the local education authority ceases to maintain a statement? JWS passed compulsory school age in June and stopped attending school. In July, the local education authority decided that they would no longer maintain her statement. Her mother sought to appeal, but the tribunal struck out the proceedings. It reasoned that JWS was no longer a child under the definition in section 312(5), as she was no longer a registered pupil at a school. Turner J held that the tribunal had misdirected itself on the interpretation of the legislation. He reasoned:

‘41. The effect of the local education authority’s position in the present case is thus: if the definition of “child” in s 312(5) is conclusive the applicant never acquired an enforceable right of appeal to the Tribunal. The question thus is: whether, in the context in which the applicant found herself, the LEA's notice of intention to cease to maintain the statement given, as it was after JWS had ceased to be a pupil at the Kingswode Hoe school, effectively deprived her of her statutory right of appeal to the Tribunal? That does not provide the full answer to the question since s 579 may yet come into play.

42. In the circumstances I have described, the question is: whether or not the context, as I have described it to be, requires that the word “child” be given some other meaning than the narrow definition in s 312(5) or that contained in section 579 itself? Noting, as I have, that the definition in s 312(5) is inclusive rather than exclusive, I am driven to conclude that the context of the present case required some other definition to be given to the word “child” than that contained either in s 312 or s 579. Any other result would have to be rejected as being so unreasonable that Parliament and the relevant Secretary of State cannot have intended the result for which the LEA contended and the Tribunal decided.

43. “Child”, in the circumstances of the present case, must mean a child who was the subject of a statement of the special educational needs at the time when the Local Education Authority decided to give notice to determine to cease maintaining that statement. My judgment is accordingly.’

29.        Wolverhampton City Council v Special Educational Needs Tribunal and Smith [2007] ELR 418 concerned two issues. Is there a right of appeal if the local education authority has maintained a statement when they are not responsible for a child? If so, what powers does the tribunal have on an appeal? Andrew had been withdrawn from school in May 2004 and became 16 in November 2004. Arrangements were made for his continuing education and it was decided that he would attend a further education college from September 2005. However, Andrew decided against going to this college in June 2005. In 2006, his mother wanted him to attend F College and asked the local education authority to fund this. The authority refused. It argued that Andrew’s statement had lapsed once he was over compulsory school age and not a registered pupil at a school. The tribunal rejected that argument and Irwin J dismissed the local education authority’s appeal. With respect, I have not found it easy to follow Irwin J’s reasoning. If I understood it correctly, it is this.

·       The local education authority was not responsible for Andrew from 2005 (at [30]).

·       Accordingly, the duty under paragraph 9(1) of Schedule 27 ‘fell away’ (at [31]).

·       Nonetheless, they had power to maintain, and had maintained, his statement until June 2006 (at [30]).

·       They then decided to cease to maintain it (at [30]).

·       Paragraph 9(1) only disapplied paragraph 11(1). It did not limit the scope of the right of appeal under paragraph 11(2)(b) to cases in which the local education authority remained responsible for the child (at [32]).

·       Accordingly, the local education authority’s decision was appealable (at [32]-[33]).

·       On that appeal, the tribunal could order that the statement be reinstated (at [38]).

30.        R (Hill) v Bedfordshire County Council [2008] ELR 660 concerned this issue: must a local education authority cease to maintain a statement if they are no longer responsible for a child, but there is a dispute whether they should be? Martin was placed in a school named in his statement. When he was just short of 18, the school went into liquidation. His parents wanted him to attend a further education college until he was 19. The local education authority decided that the statement would lapse if Martin went to that college and that they did not have to decide to cease maintaining the statement. Martin sought a judicial review of the local authority’s decision, which was granted. The Court of Appeal confirmed the local authority’s duty to give a decision to cease to maintain the statement, which would carry the right of appeal. The Court’s reasoning was given by Lawrence Collins LJ:

‘88. I do not find this an easy question. The legislation has failed to deal explicitly with one unusual situation, namely the case where a person who is over the compulsory school leaving age has left school (ie “is not a registered pupil at a school” and “over compulsory school age”: s 321(3)(d)), but where a question arises as to whether he or she should have the benefit of special educational provision.

89. On this aspect of the appeal the question is a narrow one.

90. The answer in the present case is to be found in Sch 27 of the 1996 Act, and depends on the relationship between paras 9 and 11. For convenience I set out again the relevant parts in an order which seems to me the key to their intention.

91. By para 9(1) an LEA may not “cease to maintain” a statement except in accordance with paragraph 11.

92. By para 11 there are mandatory requirements. First “a local education authority may cease to maintain a statement only if it is no longer necessary to maintain it.” But, second, where the LEA determines to cease to maintain a statement it has to give notice in writing of that fact to the parent of the child, and give notice of the parent's right of appeal: para 11(1), (2), (2A).

93. If the matter stood there then even where a child reached 16, 18 or 19 and was no longer at school the LEA would have to determine whether to cease to maintain the statement and give notice of its determination.

94. That would not normally make sense, and consequently para 9(2) provides that the obligation not to cease to maintain a statement otherwise than in accordance with para 11 does not apply where the LEA ceases to maintain a statement for a child for whom it has ceased to be responsible.

95. But on a literal reading of s 321(3) the LEA is not “responsible for a child” where the child is not a registered pupil at a school and is over compulsory school age. The literal meaning would lead to anomalous results in a case such as the present, where a child has ceased to be registered at a school through no fault of the parents, and wishes to continue secondary education.

96. But the Authority has never suggested that it would not have been responsible for Martin had his parents wished him to be placed in a “school” after Cademuir had closed, even though Martin was over compulsory school age, and as soon as Cademuir closed, he was not “a registered pupil at a school.”’

His lordship then discussed R v Oxfordshire County Council, ex parte B [1997] ELR 90 and the Wolverhampton case before continuing:

‘107. I agree with Irwin J in Wolverhampton that the definition of “child” in s 312(5) is not exhaustive. Consequently it is not necessary for a person to be “a registered pupil at a school” to be a “child” for the purposes of Part IV of the 1996 Act.

108. In my judgment para 9(2) of Sch 27 is intended to apply to the normal case where the statement ceases to have any point, because the child has left school and there is no possibility of the local authority providing for special educational needs up to the age of 18 or 19. Although the Secretary of State's code of practice cannot affect the interpretation of the legislation, that common sense interpretation is confirmed by paragraph 8:121 of the code of practice, which makes it clear that a statement will lapse automatically when a young person moves into further or higher education. Consequently, the code says that where the young person, the parents, the LEA and the further education institution are all in agreement about the young person's transfer, there is no need to formally cease the statement since the young person will cease to be a pupil for whom the LEA is responsible after leaving school, and so the statement will lapse.

109. Paragraphs 9 and 11 do not use the language of “lapse”. They assume that in all cases the LEA will determine whether or not “to cease to maintain a statement.” In certain cases it is not bound to give notice of its determination. There is no need to give para 9(2) such a literal interpretation that para 11 cannot apply to a case where a child of 16 has ceased to be registered at a school but there is every reason for a continuing belief that the child may need, and be given, special educational provision later. In those circumstances the decision of the LEA may indeed be a decision to cease to maintain the statement. That is what happened in the Wolverhampton case. Did it also happen in this case? In my judgment it did, because it is contrary to the reality of the situation to say that the statement “lapsed” in the circumstances of this case, or that the Authority did not make a decision to cease to maintain it.’

F.           My analysis

31.        A literal reading of the legislation might suggest that someone aged 19 was no longer entitled to a statement. That was my initial reaction on studying the papers for this appeal. The duties in respect of a statement are in respect of a child for whom a local education authority is responsible. The definition of ‘child’ in section 312(5) is inclusive, not exhaustive. That means that ‘child’ bears the meaning that it would otherwise bear plus the extended meaning given in the definition. In the Education Act, that means that ‘child’ has the meaning in section 579 extended by section 312(5). Putting them together produces this result: a child is someone ‘who is not over compulsory school age’ or ‘who has not attained the age of 19 and is a registered pupil at a school’. A person who is aged 19 or more does not satisfy either element of that definition. Accordingly, the local education authority was no longer under a duty to maintain the statement. Paragraph 9(2) of Schedule 27 applied with the result that paragraph 9(1) relieved the local education authority of the duties under paragraph 11. Having reached the age of 19, Maria’s statement lapsed.

32.        Having studied the authorities and considered the arguments at the oral hearing, the essential steps in that reasoning are wrong. It is worth setting it out, as it was effectively the written argument that Mr Jones put to, and was accepted by, the First-tier Tribunal. He qualified that argument in his submissions to the First-tier Tribunal, as he did before me.

33.        None of the cases that I have cited deals precisely with the issue before me. They were principally concerned with ensuring that the right of appeal under paragraph 11(2)(b) was effective. But the courts’ reasoning affects the proper analysis of this case. They have departed from the apparent literal meaning of the legislation. I am not bound by the decisions in Essex and Wolverhampton, as they were given in a co-ordinate jurisdiction: Chief Supplementary Benefit Officer v Leary [1985] 1 WLR 84. However, they are consistent with the approach of the Court of Appeal in Bedfordshire, by which I am bound, and the Court cited Wolverhampton with approval.

34.        The duty to assess under section 321 arises only in respect of a child. However, that is not the case for the duties to make and maintain a statement. As Irwin J pointed out in Wolverhampton at [22]: ‘that obligation – the creation and maintenance of a statement – is not tied to a requirement at the time when the obligation arises, that the child should be [one] for whom the LEA is “responsible”.’ The result is that those duties are not tied to the person remaining a child for which the local education authority is responsible. That allows for the possibility that it may be necessary to maintain a statement beyond the age of 18.

35.        Paragraph 9(2) of Schedule 27 is limited to cases in which it is obvious that there is no further purpose for a statement. That is the effect of Bedfordshire at [108]. In this case, there is scope for argument about whether Maria remained a child when she attained 19. The case is not sufficiently clear cut to be one of those straightforward ones that come within paragraph 9(2).

36.        Accordingly, the local education authority could only terminate Maria’s statement under paragraph 11(1) of Schedule 27. The issue that arises is: was it no longer necessary to maintain her statement? I accept Mr Wolfe’s argument that it is too simple to give the answer: no, because she has now attained 19. The issue is whether the statement is still necessary despite her age. Her age is relevant, but not decisive. The reason is that transfers between stages of education are not fixed by rigid cut off dates. Children do not have to move from primary to secondary education as soon as, and only when, they attain a particular age. Secondary education is defined by section 2(2)(a)(ii) to include education suitable for children ‘who have attained the age of 10 years and six months and whom it is expedient to educate together with senior pupils’. Nor does secondary education necessarily end at a particular age. Mr Wolfe also referred me to section 2(5):

‘(5) For the purposes of this Act education provided for persons who have attained the age of 19 is further education not secondary education; but where a person-

(a) has begun a particular course of secondary education before attaining the age of 18, and

(b) continues to attend that course,

the education does not cease to be secondary education by reason of his having attained the age of 19.’

I assume this is what the Tribunal Judge had in mind in her comments on giving permission to appeal.

37.        At the hearing before me, Mr Jones no longer argued for a rigid cut off age. He accepted that there had to be some flexibility. When I asked what the limit was to that flexibility, he said that it depended on what was reasonable. I do not accept that argument. There is no statutory authority for a test of reasonableness. On my analysis, the issue was defined by paragraph 11(1): was it no longer necessary to maintain Maria’s statement? That was how the local education authority dealt with the case when it notified Maria’s parents of their decision to cease to maintain the statement.

38.        It is not necessary for me to define the meaning of ‘course’ in section 2(5). The precise terms of section 2(5) do not determine whether or not it is necessary to cease to maintain Maria’s statement. Any factor relevant to that issue has to be considered. Maria’s age is one factor. It will be relevant to the benefit she can get from secondary rather than further education. It may, for example, be more appropriate for her to mix with people of her own age. On the other hand, the fact that she was always among the youngest children in her age group may justify her remaining in secondary education for longer. The nature and stage of her education will also be relevant. The range of different structures that education courses now have renders it impossible to be precise about the point at which it would or would not be necessary to maintain a statement. The tribunal must obtain sufficient information about Maria’s education to allow that factor to be taken into account in the context of the relevant factors as a whole. The nature of the issue does not permit a more precise answer.

G.         Disposal

39.        On my analysis, the tribunal made an error of law in deciding to strike out the proceedings. It was not under a duty to strike out, as it had jurisdiction over the decision to cease to maintain a statement. It had no power to strike out, as there was a reasonable prospect of the Maria’s case succeeding and none of the other conditions was satisfied. It should have heard the case and decided on the merits whether it was any longer necessary to maintain Maria’s statement. I have set its decision aside so that it may do that. It must make its decision on the circumstances obtaining at the time of the hearing on the basis of the evidence then available.

 

Signed on original on 8 March 2010

Edward Jacobs Upper Tribunal Judge