IN THE UPPER TRIBUNAL Case No HS/2991/2009

ADMINISTRATIVE APPEALS CHAMBER

 

Before UPPER TRIBUNAL JUDGE WARD

 

Attendances:

 

For the Appellant: Ms Shu Shin Luh, instructed by Fisher Meredith LLP

 

For the Respondent: Ms Nicola Hall, instructed by Divisional Director of Legal and Democratic Services, LB Newham

 

Decision: The appeal is allowed. The decision of the First-tier Tribunal at the telephone case management conference of 22 September 2009 in case reference 09-01095 involved the making of an error of law and is set aside. In the exercise of the power under section 12(2)(b) of the Tribunals Courts and Enforcement Act 2007 I re-make the decision in terms that the appeal is not struck out under rule 8(3)(a) or 8(4)(c) of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 and should proceed to a hearing on the merits.

 

I direct that, as a matter of urgency, the file is to be placed before a salaried judge of the First-tier Tribunal for directions to be given with a view to securing that the hearing on the merits is appropriately expedited.

 

REASONS FOR DECISION

 

Introduction

 

1. This is an appeal, made with permission of the First-tier Tribunal judge and lodged on 23 November 2009, against an order striking out under rule 8(3)(a) of the Tribunal Procedure (First-tier Tribunal) Health, Education and Social Care Chamber) Rules 2008 (“the HESC Rules”) an appeal against Parts 2, 3 and 4 of a Statement of Special Educational Needs (“Statement”) issued by the respondent local authority on 2 March 2009.

 

Jurisdiction of Upper Tribunal

 

2. In giving initial directions in this case, I observed:

 

“Unless anyone argues to the contrary I will proceed on the assumption that all parties accept that (as appears to me to be the case) under the Tribunals, Courts and Enforcement Act 2007 the Upper Tribunal has jurisdiction to entertain an appeal against a decision to strike out under rule 8(3)(a) of the Tribunal Procedure (FtT) (HESC) Rules 2008…”

 

No party has sought to argue to the contrary and I proceed accordingly. I note that a similar conclusion was reached by Judge Jacobs in the recent decision in HS/3094/2009 AW v Essex CC.

 

The facts

 

3. The appellant, Ms C, is the primary carer and person with parental responsibility for O, a 16 year old boy who is severely dyslexic, dyscalculic and who in July 2009 was said to be unable to read or write.

 

4. The local authority had maintained a Statement since 2005, in which the K Community School was named. In 2008 an application for O to be re-assessed was rejected by the authority. An order for re-assessment was made by SENDIST, predecessor to the First-tier Tribunal, following an appeal heard on 11 August 2008. Evidence had been given by an independent educational psychologist, Dr Lindsay Peer CBE, that O required a specialist dyslexia school. The local authority’s educational psychologist accepted this and that the K Community School could not meet O’s needs.

 

5. On 2 March 2009, the authority issued an amended Statement, which continued to name the K Community School. O was at this point in Year 11. The K Community School does not have pupils above Year 11 in any event.

6. On 21 April 2009 the appellant, who “also struggles with literacy” but who then, as in 2008 and now, had the assistance of her solicitors, lodged an appeal. The appeal form indicated that her appeal was against parts 2, 3 and 4 of the Statement. Under the “name and address of the school you would prefer to be named” she indicated the Dyslexia Teaching Centre and gave its address. (I interpolate here that it is now common ground that the Dyslexia Teaching Centre is actually not a school, nor indeed a further education college.)

 

7. The appellant’s position was amplified in her notice of appeal as follows:

 

“My solicitor has investigated all the specialist dyslexia schools in the London area that O could attend, however all the schools advise that they either have no places, or that O is now too old to join their specialist school as he would be substantially behind other pupils. ..

 

…Sending him to college would further delay O getting the support he needs, and time is critical as O has only a few years left of school education.

 

I am therefore of the view that O should now receive intensive support from the Dyslexia Teaching Centre (DTC), based in Kensington. This centre is a registered charity and tuition centre for adults and children with dyslexia…My proposal would be either that O attend the DTC full time, or that the local authority place O in a local sixth form school for half of the school day, with appropriate support to be determined by an educational psychologist, and that in the afternoon O attend the DTC. My solicitor has spoken to the DTC and they are of the view that they would be able to provide a package of support for O and perhaps even teach him sufficient curriculum for him to be able to take some GCSE exams.”

 

8. The local authority’s response was dated 19 June 2009. It stated, among other matters, that:

 

“The Local Authority is proposing to continue to maintain O’s statement and is offering specialist dyslexia tuition for O whilst he attends a local FE College. This is a child-centred package of support that is currently up and running and proving to be successful in meeting O’s needs.

 

This package arose following informal mediation involving O, [the Appellant], the Local Authority and the Principal Educational Psychologist. Neither the Local Authority nor [the Appellant] are able to identify a suitable school for O.

 

[The Appellant] is requesting that he attends a dyslexia teaching centre in West London. This is not a registered school and the Local Authority has no knowledge of this placement and does not feel it is suitable to be named in a Statement. The centre has not responded to the local authority’s requests for information and we have seen no written offer of a place for O. Furthermore, this placement would be considerably more expensive than the package proposed by the LA and will not prepare O for any further education placements.”

 

It appears that what was “up and running” (in the words of the first quoted paragraph above) at this point was the specialist dyslexia tuition, rather than attendance at a local FE College. At this stage, the end of the Summer Term had not been reached.

 

9. The response exhibited a “Moving-on Plan” which had been drawn up, apparently in March 2009, and which had been signed by the appellant in May 2009. This was a document prepared under section 139A of the Learning and Skills Act 2000, which confers a power, and in the case of certain Year 11 pupils with Statements, a duty to carry to an assessment. This was carried out by the local Connexions Service. The options apparently put to O were that “he could go to college or find a job or go on to training.” The assessment explained that O’s statement would stop if O were to attend a College of Further Education or a College 6^th form and that it would only continue if he attended a school 6^th form. It recorded that an application had been made to Newham College of Further Education for a course entitled “Entry Level 1 in Multiskills (Engineering and Construction).”

 

10. Following the local authority’s response, a meeting was held on 1 July between the authority and the appellant’s solicitors. Thereafter the solicitors wrote in early July to the tribunal to explain that they were addressing the authority’s objections to the DTC, in particular (a) as regards the apparent lack of information and (b) that O had not visited it (and in this regard the solicitors indicated that arrangements had been made for him to do so on 10 July). They also indicated that they wished to obtain the views of Dr Peer on the provision which the local authority was proposing, which because of her commitments might not be obtainable before September.

 

11. On 7 July O attended an interview at Newham College for the course in basic building and construction and accepted the place that was offered.

 

12. Case management directions were issued by a tribunal judge on 16 July 2009. These:

 

a. referred to the definitions of “child” in sections 312(5) and 579(1) of the Education Act 1996 (“the 1996 Act”) (as to which see below), and pointing out that the Tribunal’s jurisdiction does not cover anyone over the age of 16 being educated at a college of further education unless at the same time they are still on the roll of a school;

 

b. pointed out that O would be 16 on 27 August 2009 and that “there is no indication in the papers that he will continue to be a registered pupil at K Community School and it is therefore likely that he will be outside the Tribunal’s jurisdiction as his statement will have automatically ceased”;

 

c. asserted that “If the tribunal still has jurisdiction after O’s sixteenth birthday because he is still a registered pupil at a school, another problem arises.” This was that the DTC could only be ordered under s319, which “is a difficult test to satisfy”;

d. indicated that the tribunal was therefore considering whether the proceedings should be struck out under either rule 8(3)(a) of the HESC Rules for lack of jurisdiction or under rule 8(4)(c) (no reasonable prospect of success) and invited representations accordingly; and

 

e. ordered that the hearing date of 20 October 2009 be vacated and a new date be set if the appeal was allowed to proceed. The date was vacated in recognition that the material the appellant needed in connection with her case would not be ready sufficiently in advance of that date.

 

13. On 29 July 2009 the local authority wrote in response to the case management directions, setting out details of O’s recent college application, recording that it, like the Appellant, had been unable to find a school for O, and referring to the private dyslexia tuition. In this regard it indicated that:

 

“At the request of the parent, the LA put this private tuition into the form of a statement, as the parent wanted a legally binding document. We did raise the issue of the legal complexities of putting this into a statement with the parent’s legal representative at a meeting on 1st July, where we sought to resolve differences. However, the LA is fully prepared to put this tuition agreement into a different form of document, as we accept that the situation does not meet the statutory requirements for a statement as O will be on the roll of a college.”

 

It continued with a paragraph which it is not necessary to set out, but which was an objection on the merits to the suitability of the DTC, before concluding that “In light of the above, the LA requests that the appeal is struck out as falls outside the jurisdiction of the tribunal.”

 

14. The appellant’s solicitors wrote to the tribunal on 31 July setting out the reasons why they considered the case management directions of 16 July 2009 to be legally flawed, in particular by reference to the decisions in Wolverhampton City Council v Special Educational Needs and Disability Tribunal [2007] EWHC 1117 (Admin) and R (on the application of Hill (by his father and litigation friend Hill) v Bedfordshire County Council [2008] EWCA Civ 661. They had also by then succeeded in obtaining the views of Dr Peer, which were set out in a “To whom it may concern” letter dated 30 July 2009. After setting out the relevant history (including referring to her familiarity with O’s needs having previously assessed him and having provided a previous report for tribunal proceedings) and the local authority’s proposal, Dr Peer continued:

 

“I am firmly of the opinion that such a placement at a Further Education College could not possibly meet O’s needs. O cannot read or write and requires a specialist placement that would meet his needs. The package that I would advise at this time is as follows: An intensive one year programme in a dyslexia centre as follows (sic):

 

·       Daily one hour sessions in literacy – using structured, sequential, multisensory methodologies. These should be delivered by a teacher who is dyslexia trained (holding a Certificate or Diploma recognised by the British Dyslexia Association) and experienced in this approach.

 

·       Daily sessions of at least 45 minutes in numeracy delivered by teachers who are dyslexia/dyscalculia trained and experienced

 

·       Speed of processing and phonological skills training using tasks such as sound categorisation and phoneme deletion and taught by the dyslexia trained teacher for 5 minutes of each literacy lesson

 

·       Memory skills training – delivered by specialist dyslexia trained teacher. This should be at least twice a week for 15 minutes

 

·       A study skills programme for 30 minutes per week twice a week

 

·       He should be taught how to touch type in order to help him gain control over the writing process. A useful program is Typing Instructor Deluxe from the Helen Arkell Dyslexia Centre as it will also reinforce the structured spelling programme he will be undertaking. This should be taught by a tutor trained and experienced in working with young people who are severely dyslexic in order to help him internalise the structured spelling programme it follows and use every opportunity to develop his learning skills.

 

There is no way that a College could provide this level of specialist support, and all specialist schools have said that it is now too late for them to be able to meet O’s needs. I am familiar with the Dyslexia Teaching Centre and I am strongly of the view that this would be the best possible option in order to meet O’s needs at this time.”

 

15. The appellant’s solicitors also provided information from the DTC and confirmation of the DTC’s agreement with Dr Peer’s recommendations and of its ability to meet those via a programme spread over 3 or 4 days per week.

 

16. The matter came before the tribunal judge on 22 September 2009. He struck out the appeal under rule 8(3)(a). His reasoning was briefly expressed, as follows:

 

“6. Taking into account the circumstances, noting that O is now enrolled at a college and not a school, I am not persuaded that the Authority’s (sic) cited on behalf of [the Appellant] are of assistance.

 

7. I find that O no longer has a statement, is not a child within the relevant parts of the Act and the Tribunal does not have jurisdiction to hear [the appellant’s] appeal.

 

8. [The appellant’s solicitor] suggested it appropriate that Newham formally ceases to maintain O’s statement giving a right of appeal. Whether or not it could be argued that the statement cannot lapse without formal cessation I do not consider this could affect the position as O has now chosen and embarked upon his post sixteen provision outside the school’s (sic) sector and similar reasoning would apply to his current status.”

 

The law

 

17. Section 323 of the 1996 Act creates a duty to assess certain persons in relation to their special educational needs. A prerequisite to falling within the scope of the section is that a person is a “child” for whom the relevant local educational authority is “responsible.” For these definitions, see below.

 

18. Section 324 deals with the duty to make the statement in the following terms:

 

“(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.

 

(2) The statement shall be in such form and contain such information as may be prescribed.

 

(3) In particular, the statement shall—

 

(a) give details of the authority's assessment of the child's special educational needs, and

(b) specify the special educational provision to be made for the purpose of meeting those needs, including the particulars required by subsection (4).

 

(4) The statement shall—

 

(a) specify the type of school or other institution which the local education authority consider would be appropriate for the child,

(b) if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement, and

(c) specify any provision for the child for which they make arrangements under section 319 and which they consider should be specified in the statement.

 

It has been held that it is not a precondition to the duty to make a statement arising that the local authority is “responsible” for the child concerned: see Wolverhampton at [22]. Section 319 is set out below. What is an “institution” for the purposes of section 324 is not defined.

 

19. Section 326 deals with appeals against the content of a statement to the First-tier Tribunal. An appeal may by sub-section (1A) be against matters including:

 

“… (b) the special educational provision specified in the statement (including the name of a school so specified)…”

20. Schedule 27 contains further provision in relation to statements. We need be concerned only with paragraphs 9 and 11:

 

“9(1) A local education authority may not cease to maintain, a statement except in accordance with paragraph 11.

 

(2) Sub-paragraph (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).

 

11(1) A local education authority may cease to maintain a statement only if it is no longer necessary to maintain it.

 

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

 

(a) they shall give notice in writing of that fact to the parent of the child, and

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

 

(2A) A notice under sub-paragraph (2)(a) must inform the parent of the right of appeal under sub-paragraph (2)(b) and contain such other information as may be prescribed.

(3) On an appeal under this paragraph the Tribunal may—

 

(a) dismiss the appeal, or

(b) order the local education authority to continue to maintain the statement in its existing form or with such amendments of—

(i) the description in the statement of the authority's assessment of the child's special educational needs, or

(ii) the special educational provision specified in the statement,

and such other consequential amendments, as the Tribunal may determine.

 

(4) Except where the parent of the child appeals to the Tribunal under this paragraph, a local education authority may only cease to maintain a statement under this paragraph within the prescribed period beginning with the service of the notice under sub-paragraph (2)

(5) A local education authority may not, under this paragraph, cease to maintain a statement if–

 

(a) the parent of the child has appealed under this paragraph against the authority's determination to cease to maintain the statement, and

(b) the appeal has not been determined by the Tribunal or withdrawn.”

 

 

21. Among the provision which may be made by a statement under section 324 is provision by virtue of arrangements under section 319, which states as follows:

 

“ (1) Where a local education authority are satisfied that it would be inappropriate for—

 

(a) the special educational provision which a learning difficulty of a child in their area calls for, or

(b) any part of any such provision,

to be made in a school, they may arrange for the provision (or, as the case may be, for that part of it) to be made otherwise than in a school.

 

(2) Before making an arrangement under this section, a local education authority shall consult the child's parent.

 

22. It is necessary to consider some key definitions:

 

By section 579, unless the context otherwise requires, ““child” means a person who is not over compulsory school age.”

 

There is a further definition of “child” in section 312(5) for the purposes of the part of the 1996 Act concerned with special educational needs: ““child” includes any person who has not attained the age of 19 and is a registered pupil at a school.”

 

Sub-section (4) of section 312 provides that:

“In this Act “special educational provision” means —

(a) in relation to a child who has attained the age of two, educational provision which is additional to, or otherwise different from, the educational provision made generally for children of his age in schools maintained by the local education authority (other than special schools) and

(b) [not material].”

 

Finally, when a local authority is “responsible” is addressed by section 321(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… ,

(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.”

 

The issues

 

23. Ms Luh, for the appellant, argues in short that the First-tier Tribunal judge failed to apply the decisions in Wolverhampton and Hill correctly, or possibly at all, and failed to make the necessary enquiry into the factual matrix; but that even if he had not so failed, either this would not have sufficed to take away an existing right of appeal which had been exercised or, if the local authority could lawfully have ceased to maintain O’s statement, it could only have done so under paragraph 11 of schedule 27, conferring a fresh right of appeal.

 

24. Ms Hall, for the local authority, nailed her colours firmly to the paragraph 9(2) mast. While it is common ground that at the time of the decision, the authority was not “responsible” for O within any of the provisions of section 321, she does not rely on this. Nor does she seek to argue that O was not a “child” in view of Wolverhampton and Hill. Rather, she says, this was a case where the judge was entitled to conclude that the matter fell within paragraph 9(2), properly understood, and this had the effect that O’s statement ceased and with it, his right of appeal.

 

Conclusions

 

25. The decision of the Court of Appeal in Hill is of course binding on the Upper Tribunal and requires to be examined in some detail. In that case, a boy, Martin, had been being educated in Scotland pursuant to a Statement until shortly before his 18^th birthday, when the company running the school went into liquidation. His parents wished him to continue his education at another institution in Scotland (“Elmwood”). His parents initially considered -on advice- that Elmwood might fall to be viewed as a school. The parties’ respective positions are summarised by Lawrence Collins LJ (as he then was):

 

“74 …The Authority's position was that it was no longer responsible for Martin once he reached his 18th birthday and was no longer registered at Cademuir (or at any rate once he attended Elmwood). Where a child ceased to be a child for whom the Authority was responsible, the Authority could cease to maintain a statement without giving notice and there was no right of appeal.

 

75 Mr Hill's position was that Elmwood was a school, and that the Authority had to give formal notice of intention to cease the statement and of his right to appeal to SENDIST. Consequently, the Authority, if it did not agree that Elmwood should be included on the statement, had to name another school and he could appeal the decision.”

 

26. Although Hill was on a somewhat different issue from the principal point at issue in the present appeal, its present relevance arises primarily in that the Court of Appeal had to decide the scope of paragraph 9(2) in order to rule on whether a statement had fallen within that provision or whether the more general provisions – conferring a right of appeal – in paragraph 11 applied.

 

27. As Lawrence Collins LJ put it:

 

“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 (i.e. “is not a registered pupil at a school” and “over compulsory school age”: section 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 schedule 27 of the 1996 Act, and depends on the relationship between paragraphs 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 paragraph 9(1) a local education authority may not “cease to maintain” a statement except in accordance with paragraph 11.

 

92 By paragraph 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 local education authority 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: paras 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 local education authority 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 paragraph 9(2) provides that the obligation not to cease to maintain a statement otherwise than in accordance with paragraph 11 does not apply where the local education authority ceases to maintain a statement for a child for whom it has ceased to be responsible.

 

95 But on a literal reading of section 321(3) the local education authority 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.”

 

28. Thus either the phrase “ceased to be responsible” within paragraph 9(2) does not involve applying the s321(3) test [95] or one has to apply it in the context of whether the outcome of proceedings might be such as to make the local authority once again “responsible”. In this regard, there was on the facts no specific prospect of an alternative school being named and it appears to have sufficed that, per the Court of Appeal at [113]:

 

“It is not now possible to say what would have happened had the Authority given notice then or when these proceedings were commenced, and in particular whether in the course of the appeal another school might have been named in the statement on the proposal of Martin's parents or the Authority.”

 

29. Turning to the definition of “child”, Lawrence Collins LJ indicated at [107] that:

 

“I agree with Irwin J in Wolverhampton that the definition of “child” in section 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.”

 

30. The principal question for me is not whether I would follow Wolverhampton (which of itself is not binding upon the Upper Tribunal- see Supplementary Benefit Officer v Leary [1985] 1 WLR 84), but, given that the Court of Appeal in Hill cited Wolverhampton with approval, to seek to determine the scope of the ratio of Hill.

31. The Court of Appeal was only concerned in the case before it with the meaning of “child” in the context of paragraphs 9 and 11 of schedule 27. It respectfully seems to me that there may be difficulties in giving the word “child” an extended meaning for other purposes of Part IV of the 1996 Act, as was recognised by Collins J in Wakefield MDC v E [2002] ELR203 at [28], a case which was not cited before me and which is not referred to in the judgments in either Wolverhampton or Hill.

 

32. However, this does not detract from the fact that it is part of the ratio of Hill that for the purposes of paragraphs 9 and 11 of schedule 27, an extended meaning of “child” applies and that it is not decisive that the local authority is not, at the material time, ”responsible” for the child within section 321.

 

33. I read the heart of the judgment in Hill as being at [108] and [109] (my italics added):

 

“108 In my judgment paragraph 9(2) of schedule 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 local education authority 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 local education authority 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 local education authority 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 paragraph 9(2) such a literal interpretation that paragraph 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 local education authority 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.

 

34. In my judgment, paragraph [108] of Hill is authority, binding on the Upper Tribunal and the First-tier Tribunal, that where live issues between the parties remained and it was possible that if an appeal went ahead, the tribunal might have made an order that special educational provision be provided by the local authority, that is sufficient to take the matter outside the scope of paragraph 9(2).

 

35. For ease of reference, I set out again the tribunal judge’s reasoning:

 

“6. Taking into account the circumstances, noting that O is now enrolled at a college and not a school, I am not persuaded that the Authority’s cited on behalf of [the appellant] are of assistance.

 

7. I find that O no longer has a statement, is not a child within the relevant parts of the Act and the Tribunal does not have jurisdiction to hear [the appellant’s] appeal.

 

8. [The appellant’s solicitor] suggested it appropriate that Newham formally ceases to maintain O’s statement giving a right of appeal. Whether or not it could be argued that the statement cannot lapse without formal cessation I do not consider this could affect the position as O has now chosen and embarked upon his post sixteen provision outside the school’s sector and similar reasoning would apply to his current status.”

 

36. The reasoning is rather compact and it is not entirely clear whether the judge was applying the proposition for which I regard Hill as authority. It appears –not least from the difficulty of seeing how the evidence in this case could enable the correct test to be met -entirely possible that he was not, but was rather relying on the mere fact of attendance at college as determining the issue. If indeed he was not so applying Hill, that was in my view an error of law. If he was so applying Hill, the question becomes whether he was entitled to conclude that this was a situation falling within paragraph 9(2) as so understood.

 

37. I consider that he was not so entitled. The notice of appeal had set out that what the appellant wanted was for the local authority to enable him to attend the DTC and that college would not be an adequate alternative: see [7] above. While the Moving-on Plan perhaps contained a leaning towards a college-based option, it was not conclusive in that regard: see [9]. In any event, it was clear from the July correspondence from the solicitors that both options remained on the table so far as their client was concerned, in that they were (a) trying to counter the local authority’s objections to the DTC while also (b) giving proper consideration to the authority’s proposals by seeking the view of the independent expert upon them: [10]. Having obtained these, their letter of 31 July and its enclosures, seeking to meet the objections to the DTC and to provide an expert view why college-based provision was inappropriate could only be viewed, in my opinion, as indicating that there was an ongoing live issue, with the appellant continuing to seek provision at the DTC for O.

 

38. What of the fact that O had enrolled on a one year college course on 7 July? He did so against the background of ongoing work by the appellant’s (and thus, indirectly, his) solicitors to build the case for attending the DTC. He did so, not having yet attended the DTC and thus unable to know for certain whether, once they had met him, the DTC would be able to help him. At the time he enrolled, it was also doubtful whether an independent view could be obtained as to whether the local authority’s proposal was likely to help him (and if so, when) and the consequence of this was that the tribunal which had been to decide on the appropriate provision for him was likely to have to be (and in the event was) postponed from its scheduled October hearing date. Nor could he know what the outcome of any tribunal in due course would be. It was argued that enrolling at college was a sensible step so that O would be doing something useful with his time whatever the outcome of these various uncertainties and that a tribunal should be very reluctant to infer that he was thereby acceding to the local authority’s proposals, thus entitling the local authority, albeit belatedly and without a visible formal determination, to determine not to maintain the statement. I agree. I am driven to the conclusion on reviewing the evidence that if the judge was concluding that there was no longer a live issue between the parties (and he may not have been), that was a conclusion that it was not open to him to reach. If I am wrong in that, he in any event (on the same premise) failed to give sufficient reasons as to how he reached that conclusion on the evidence, in particular as to what he made of the letter of 31 July 2009 and its enclosures.

 

39. Was the dispute as to something which the tribunal would have had power to order? It makes sense to consider first the main point at issue, namely whether attendance at the DTC could be ordered under section 319. Any tribunal in this field will be looking at matters at the date of hearing, thus it matters not that the original issue was between naming the K Community School and the DTC. It was common ground before me that a tribunal would have power to order such provision under section 319 if the terms of that section are made out. It appears that the tribunal judge who issued the first case management direction took a similar view. The local authority has never sought to suggest otherwise and indeed has maintained its objections to the DTC on the merits. In these circumstances, I do not consider that I need to explore further the precise scope of section 319 and its interaction with any extended definition of “child”, if applicable. Such matters will have to await a case in which they are the subject of dispute.

 

40. Having so decided, I do not need to consider other possibilities, such as that on O's appeal a tribunal might name as name a type of school, the possibility that a place might become available for O at a school which had previously indicated that it had no places (it is unclear on the evidence whether such schools referred to in the evidence would in any event have been suitable), nor the position in relation to the individual dyslexia tuition.

 

41. Having thus concluded that the judge erred in law in his approach to whether there remained a live issue between the parties and having accepted that the provision sought was something which a tribunal would have power to order a local authority to provide, I make findings of fact that there was such a live issue, as to provision of such a kind and substitute a decision that the appeal is not struck out under rule 8(3)(a).

 

42. Ms Hall referred in her oral submission to a meeting apparently held in February 2010 at which O is said to have expressed a wish to study drama at a further education college. For O, it is said that that is, like the previous course, merely a stop-gap. In any event, I have seen no evidence as to these matters and do not consider them further.

 

43. The original direction in the First-tier Tribunal considered the possibility of an alternative basis of strike out under rule 8(4). I have not been asked to exercise it in the alternative and do not consider that it would be appropriate to do so.

 

44. The case must now proceed to a hearing on the merits before the First-tier Tribunal and as soon as possible. The original directions in the appeal to the Upper Tribunal abridged time for submissions and it is a matter of regret that it did not prove possible for an earlier hearing date to be agreed with the parties. The outcome of the merits hearing is entirely a matter for the First-tier Tribunal which will hear the case and no inference should be drawn as to it from the fact that this appeal has succeeded on a point of law.

 

45. The conclusion which I have reached in relation to the approach to paragraph 9(2) makes it unnecessary for me to decide whether, if the case had fallen within paragraph 9(2), that would have been sufficient to defeat a right of appeal which had already been exercised. That was not the situation in either Hill or Wolverhampton, nor indeed in the other case to which I was referred, S v Essex CC and SENT (unreported) 19 April 2000.

 

 

 

CG Ward

Judge of the Upper Tribunal

31 March 2010