Special Education in UK Law

Special educational provision is, in principle, whatever is called for by a child's learning difficulty. It seems to me that to adopt the first approach would be to read into the legislation a sharp dichotomy for which Parliament could easily have made express provision had it wished to do so, but which finds no expression or reflection where one would expect to find it, namely in section 312.

I do not consider that section 9 of the Act means that parental preference is to prevail unless it involves unreasonable public expenditure. 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 is clear from a number of references in cases and in the Code of Practice, which Mr Oldham cited to me, that the local education authority is responsible for ensuring that efficient use is made of its own resources without reference to those of other local authority agencies.

What is I think clear is that measures taken by a local education authority which are subject to appeal before the SENT under s.326 must be directly related to the child's learning difficulties. Problems of this kind, in my judgment, will generally fall to be dealt with not under the Act of 1996, but (so far as they may be met by public provision) under social welfare measures made in other statutes and delegated legislation.

In my judgement, it is not equitable to extend the limitation period in this case. The question whether A2P1 confers a right to an education in accordance with the relevant SSEN, and if so, the appropriateness of an award of damages and the impact on the alleged shortcomings of judicial review in special educational needs cases, can be as easily (and more appropriately) determined in an upcoming application for judicial review made by another party as in these very late proceedings.

There were two issues it had to decide: first whether Karis needed a twenty-four hour curriculum and secondly whether the school named by the authority was appropriate. Both the Tribunal and Mr Justice Collins appear to have overlooked the requirement that the authority is bound to make efficient use of its resources and to avoid unnecessary expenditure in the performance of its duties under the Act.

Here the ordinary meaning of “child” would not extend to someone who is 23 or 30 years old. Miss Butler-Cole invokes section 2(5) of the 1996 Act in support her favoured construction. Whatever meaning is given to the notion of “continues to attend that course” in that section, I cannot see how it can lead to a construction under which a person aged 23 or 30, or indeed of no upper age limit, would be regarded as a “child”.