AJSB v Essex County Council Worcestershire County Council Herfordshire County Council Suffolk County Council

JurisdictionEngland & Wales
CourtQueen's Bench Division
JudgeMR JUSTICE FIELD,Mr Justice Field
Judgment Date13 July 2007
Neutral Citation[2007] EWHC 1652 (QB)
Date13 July 2007
Docket NumberClaim Nos HQ 05X01273; HQ 05X01275;

[2007] EWHC 1652 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Before

Mr Justice Field

Claim Nos HQ 05X01273; HQ 05X01275;

HQ 05X01282; HQ 05X01272

Between
A
J
S
B
Claimants
and
Essex County Council
Worcestershire County Council
Herfordshire County Council
Suffolk County Council
Defendants

Nicholas Bowen (instructed by Children's Legal Centre) for the Claimants

Andrew Warnock (instructed by Weightmans) for the Defendants

Hearing dates: 13 th, 14 th and 15 th June 2007

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

MR JUSTICE FIELD Mr Justice Field

Introduction

1

The four defendants in these actions apply for judgement under CPR 24, whilst the claimants seek a determination that it is equitable under section 7(5)(b) of the Human Rights Act 1998 (“ HRA”) to extend the one year limitation period in respect of such of their claims as were not brought within that period.

2

Each claimant is the subject of a Special Educational Needs Statement (“SSEN”) and seeks a declaration and damages under section 7(1)(a) HRA on the ground that the local authority responsible for the provision of education in his or her area has acted incompatibly with his or her rights under Article 2, Protocol 1 to ECHR (“A2P1”) and Articles 8 and 14 ECHR by wrongfully excluding him or her and/ or by not providing a “meaningful” and “effective” education for varying periods of time. In Claim No. HQ05X1273, the claimant, A, also alleges that the defendant acted incompatibly with his rights under Article 3 ECHR.

A summary of the domestic special educational needs legislation

(All references are to the Education Act 1996 unless otherwise stated)

3

By section 312 a child has “special educational needs” if he “has a learning difficulty which calls for special educational provision to be made for him”. A child has a “learning difficulty” if, amongst other things, he “has a significantly greater difficulty in learning than the majority of children his age” or “he has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area of the local authority”.

4

By section 321 of the Act a local authority is to exercise its powers with a view to securing that of children for whom they are responsible, they identify those who have special educational needs and for whom it is necessary for the authority to determine special educational provision. The local authority is “responsible” for, amongst others, children within the authority's area who either attend a school maintained by the authority and children who attend an independent school with fees paid for by the authority.

5

Pursuant to section 323, where the Local Education Authority (“LEA”) considers a child may fall within section 321, they are required to make an assessment of his needs, after having taken into account any parental representations. Under section 329, a parent may also initiate the process, by requesting an assessment under section 323. If such a request is made, the authority must comply with it if no such assessment has been made within the previous six months and it is necessary for the authority to make an assessment under section 323. Under section 329A, the head teacher of a school may also request an assessment.

6

If as a result of an assessment under section 323 the local authority decides it is necessary for the local authority to make special educational provision for the child, then by section 324 the authority must make and maintain an SSEN. Section 324 provides for the contents of such a statement. In particular, it must: give details of the educational needs and the provision required to meet them; specify the type of school or institution which the authority considers appropriate to meet those needs; and name any school or institution which is considered to be appropriate. The Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 (the Regulations) prescribe in more detail the form and content of the statement.

7

The Regulations also make detailed provision for the assessment process. They specify (at regulations 7 to 11) that the authority must seek: (a) advice from the child's parent; (b) educational advice (usually from the head teacher of the child's school); (c) medical advice from the health authority; (d) advice from an educational psychologist employed by the authority; (e) advice from social services; and (f) any other advice which the authority considers appropriate for the purposes of arriving at a satisfactory assessment. The authority must also take into account any evidence submitted by or at the request of the child's parent. Once the assessment is complete, the authority must either provide the parents with a copy of a proposed statement of special educational needs (or amended statement if the child already has one) within 2 weeks, or inform them that they have decided not to make a statement or amend an existing statement within the same time period and inform the parents of their right to appeal (regulation 17).

8

If a proposed statement has been issued, there then follows an 8 week period during which the parent has the right to make representations as to the content of the Statement (Schedule 27). At the end of the 8 week period, the authority must issue a complete statement unless certain defined exceptions apply.

9

Once a statement is made, the local authority has a statutory obligation to arrange that the special educational provision specified is made for the child – section 324(5). The Statement must also be reviewed annually (regulation 18 of the Regulations).

10

Parents are given rights of appeal to the Special Educational Needs and Disability Tribunal (“SENDIST”) against decisions made by the authority see eg sections 329(2), 325(3) and 326.

11

Appeals from the SENDIST lie to the High Court on a point of law (Tribunals and Enquiries Act 1992 section 11).

12

By section 19, a local authority is under a duty to make arrangements for the provision of suitable education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them. This duty arises only where it is not reasonably possible for a child to take advantage of any existing suitable schooling (R(G) v Westminster City Council [2004] EWCA Civ 45).

The factual backgrounds of the four claims

A v Essex County Council

13

A is severely autistic, suffers from epilepsy, has severe learning difficulties and is doubly incontinent. At all material times his behaviour was extremely challenging. He self-harmed and wore arm splints and a helmet during the day to protect his arms and skull. Despite medication he had 10–15 short epileptic fits a day.

14

He attended L S School, a Community Special Day School for children with severe learning difficulties, from the beginning of his statutory schooling in 1995 until 17 th January 2002. In May 2001 teachers at the school recorded their concerns about his behaviour and the school's ability to deal with him.

15

A's amended SSEN of 6 th November 2001 named L S School as an appropriate placement.

16

On 18 th January 2002 A stopped attending the LS School following notification to his parents that he should be removed from the school. Thereafter he was kept at home pending a medical assessment because his propensity for violence constituted a danger to other pupils and staff. The school sent work to A's home for him to do in the form of two boxes of educational activities – touch books and bubbles. Speech and language therapy was provided to him on Wednesday and Thursday mornings from March 2002 and an occupational therapy assessment of A's home was arranged and carried out. In May and June 2002 A attended activity sessions at L S School whilst his parents attended Makaton classes and from about the end of June 2002 until 24 th July 2002 he attended the L S School for individual teaching sessions lasting 45 minutes each.

17

Following a review of A's SSEN the defendant informed A's parents and his solicitors on 31 st July 2002 that it did not propose to make any amendments to the statement.

18

A was medically assessed between the 9 th and 13 th September 2002 at the St Piers National Centre for Young People with Epilepsy. This was the earliest that the assessment could take place. A was diagnosed “generalised seizure disorder; severe learning disability; and challenging behaviour (aggressive and self injurious behaviour)”. The report recommended a residential programme offering the benefit of a 24 hour curriculum with consistent behavioural strategies at a specialist school. He needed 1:1 (at times 2:1) supervision and support at all times. As a result of having been at home unsupported since February 2002, he was under-stimulated and his behaviour and self harming had intensified.

19

The defendant was informed orally of the outcome of the assessment on 13 th September and by 16 th October 2002 had put funding in place for a residential placement.

20

Between 16 th October 2002 and 17 th December 2002 the defendant wrote to 26 schools seeking a placement for A. In mid-December arrangements were made for him to attend sessions at the Sensory Room on Tuesday and Thursday mornings and he continued to receive two 45 minute sessions at the L S School. In late January 2003 he began attending L House for respite care 3 days a week, 2 hours a day.

21

On 9 th February 2003 K School offered a place for A at a cost to the defendant...

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