Special Education in UK Law

Special educational provision is, in principle, whatever is called for by a child's learning difficulty. A learning difficulty is anything inherent in the child which makes learning significantly harder for him than for most others or which hinders him from making use of ordinary school facilities.

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)).

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.

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.

In my judgement, it is not equitable to extend the limitation period in this case. CLC, who are very familiar with the law relating to education, were instructed on 14 th April 2002 but no application for judicial review was made until 30 th May 2003, an application that foundered on the LSC's refusal to grant funding because a school place was going to be made available from the end of July 2003.

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. Having decided that Karis did not need the twenty-four curriculum but that the special educational needs were not met by specifying Chadsgrove School, the Tribunal in my view misdirected itself in holding that it should order the authority to name a school which provided a twenty-four hour curriculum.

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”.