Education Law in UK Law

Unless, therefore, it can be shown that the statutory framework or the lesal context in which the words are used requires a different meaning, I unhesitatingly subscribe to the view that "ordinarily resident" refers to a man's abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or long duration.

This is not to say that the "propositus" intends to stay where he is indefinitely; indeed his purpose, while settled, may be for a limited period. Education, business or profession, employment, health, family, or merely love of the place spring to mind as common reasons for a choice of regular abode. All that is necessary is that the purpose of living where one does has a sufficient degree of continuity to be properly described as settled.

It is sometimes said that there has to be an assumption of responsibility by the person concerned. That phrase can be misleading in that it can suggest that the professional person must knowingly and deliberately accept responsibility. The phrase means simply that the law recognises that there is a duty of care. It is not so much that responsibility is assumed as that it is recognised or imposed by the law.

This seems to me to be, on its face, an example par excellence of a situation where the law will regard the professional as owing a duty of care to a third party as well as his own employer. The duty to the pupil would march hand in hand with the professional's responsibilities to his own employer. He should exercise reasonable skill and care when assessing the child and then advising the education authority.

For these reasons I reach the conclusion that an education authority owes no common law duty of care in the exercise of the powers and discretions relating to children with special educational needs specifically conferred on them by the Act of 1981.

If, at the other extreme, all the factors of relevance to the best interests of the child consideration (save for the child's and/or parent(s) own claim that they want to remain) point overwhelmingly to the child's interests being best served by him returning with his parent(s) to his country of origin (or to one of his parents being expelled leaving him to remain living here), then very little by way of countervailing considerations to do with immigration control etc. may be necessary in order for the conclusion to be drawn that the decision appealed against was and is proportionate.

If we were to do that here, I feel I would apply the test submitted by Mr. Lester. The words "ordinarily resident" mean that the person must be habitually and normally resident here, apart from temporary or occasional absences of long or short duration. On that test all those students would qualify for a mandatory award.