B v Harrow London Borough Council
| Jurisdiction | England & Wales |
| Judge | LORD BROWNE-WILKINSON,LORD SLYNN OF HADLEY,LORD CLYDE,LORD SAVILLE OF NEWDIGATE,LORD MILLETT |
| Judgment Date | 27 January 2000 |
| Judgment citation (vLex) | [2000] UKHL J0127-2 |
| Date | 27 January 2000 |
| Court | House of Lords |
[2000] UKHL J0127-2
HOUSE OF LORDS
Lord Browne-Wilkinson
Lord Slynn of Hadley
Lord Clyde
Lord Saville of Newdigate
Lord Millett
And Others
My Lords,
I have had the advantage of reading in draft the speech to be delivered by my noble and learned friend Lord Slynn of Hadley. For the reasons he gives I would allow the appeal.
My Lords,
This appeal is concerned with a right of a local education authority not to give effect to a parent's preference for a special school for her child on the grounds that the local education authority considers that the provision of such a place would be incompatible with the efficient use of resources.
The Education Act 1996 is a consolidating Act which re-enacts the relevant provisions of the Education Act 1993.
By section 9 of the Act of 1996 (the Act) local education authorities are required to have regard to the general principle "that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure."
Part IV of the Act makes provision for children with "special educational needs" being those who have "a learning difficulty which calls for special educational provision to be made for [them]" (Section 312(1)). A child has a learning difficulty inter alia if he has a significantly greater difficulty in learning than the majority of children of 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 education authority" (Section 312(2)).
Local education authorities are empowered to make special provision for children with special educational needs and in doing so they are required to have regard for the provisions of a Code of Practice issued by the Secretary of State pursuant to section 313 of the Act.
Where a LEA considers that a child for whom they re responsible has special educational needs and that it is necessary for the authority to determine what special educational provisions should be made, they must serve on the child's parent a notice stating that they intend to make an assessment of the needs and of the procedures to be followed (Section 323). Having considered this assessment and the parent's representations about it the authority must make and maintain a "statement" of the child's special educational needs, setting out the needs and the provision to be made. In particular, the statement must specify the appropriate type of school and if they are not required under Schedule 27 to specify the name of a school, then they must specify the name of the school which they think would be appropriate. When the statement has been made (unless the parent has made suitable arrangements) the authority must "arrange that the special educational provision specified in the statement is made for the child" (Section 324).
Schedule 27 lays down rules for the making of a statement. By paragraph 3(1) a parent on whom a copy of a proposed statement has been served must be enabled to express a preference as to the maintained, grant-maintained or grant-aided special school as to which he wishes his child to be educated giving reasons for such preferences. By paragraph 3(3)
"Where a local education authority make a statement in a case where the parent of the child concerned has expressed a preference in pursuance of such arrangements as to the school at which he wishes education to be provided for his child, they shall specify the name of that school in the statement unless -
(a) …
(b) the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources."
The issue in the present case is thus whether attendance at the school named by a parent could be refused on the basis that "the attendance of the child at the school would be incompatible with … the efficient uses of resources." That in turn depends on what resources are to be considered.
The question arises in this way. The child ("F") was born on 19 February 1993 and two years later was diagnosed as having Rett Syndrome. It is clear that at all relevant times she has suffered from severe disabilities. In July 1995 she began to attend Whittlesea, a special school maintained by Harrow Education Authority in whose area her mother and she lived. The Harrow Education Authority began their statutory assessment of the child in 1995. In the early part of 1996 educational reports were made to the effect that F was happy and in June a consultant paediatrician wrote that her needs were well met at Whittlesea. A Home Visitor reported that the mother was happy with F's placement at Whittlesea. But from July 1996 the mother said that she was not happy with Whittlesea as a school for F. She was particularly dissatisfied with the physiotherapy and hydrotherapy facilities which she said could be provided much better at Grangewood, a special school maintained by Hillingdon Education Authority, a neighbouring borough authority.
On 30 August 1996 the Harrow Authority issued a final statement of education needs pursuant to Section 168 of the Education Act 1993 and the Education (Special Educational Needs) Regulations 1994 (S.I. 1994 No. 1047) to which were appended detailed medical, educational and social service reports. The statement set out the objectives to be met and the educational provision required to meet the special needs and objectives. It named Whittlesea School, "a day special school for pupils with complex/severe learning difficulties" as the appropriate school. By notice dated 31 October 1996 the mother appealed on the basis that F's needs were not being met at Whittlesea and that she wished her to be placed at Grangewood. Harrow replied that F's needs were being met, that the close relationship between health, social services and educational staff leading to a cohesive approach to meet her overall needs would not be so well managed in an out-of-borough school and that the extra cost involved in her going to Grangewood would not be justified as an effective use of resources, when there was a suitable place available with a Harrow school. The Special Educational Needs Tribunal, hearing the appeal pursuant to section 326 of the 1996 Act, in its decision dated 19 February 1997, after an oral hearing, concluded that the actual physiotherapy and proposed hydrotherapy arrangements at the school were sufficient and that Whittlesea could, on that basis, appropriately meet F's needs. They "accepted the LEA's arguments that F's attendance at Grangewood School would not be compatible with the efficient use of their resources. Even if [the mother] were to assume responsibility for transporting [F], the school place would cost the LEA in the region of £11,000 - £12,000 p.a. and we agreed that this sum was material." The Tribunal required that arrangements be made to involve her mother more in her educational programme and in meeting with therapists and school staff, but subject to that they dismissed the appeal in regard to the named school.
The mother appealed pursuant to section 11 of the Tribunal and Inquiries Act 1992. Moses J. accepted that parents had a right to express a preference for a particular school whether or not the children have special needs and that a local education authority has an overriding general obligation to comply with those wishes, so long as that is compatible with efficient education and it is not unreasonably expensive. He held, however, that in the absence of any provision equivalent to section 411(5) of the 1996 Act "paragraph 3(3)(b) is not to be construed as if the resources there referred to included the resources of another authority. It directs attention to the resources of the authority who has made the statement of special needs." He was satisfied that the Tribunal had balanced...
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