Bury Metropolitan Borough Council HS 1350 2010
| Jurisdiction | UK Non-devolved |
| Judge | Judge C G Ward |
| Judgment Date | 04 November 2010 |
| Neutral Citation | 2010 UKUT 406 AAC |
| Subject Matter | Special educational needs |
| Respondent | SU |
| Court | Upper Tribunal (Administrative Appeals Chamber) |
| Docket Number | HS 1350 2010 |
| Appellant | Bury Metropolitan Borough Council |
Attendances:
For the Appellant: Ms Holly Stout, Counsel, instructed by Ms J Hammond, Director of Legal and Democratic Services
For the Respondent: Mr Tom Cross, Counsel (acting in a voluntary capacity on behalf of the Independent Panel for Special Education Advice (“IPSEA”))
Decision: The appeal is dismissed. The decision of the First-tier Tribunal in case 09-02084 issued on 23 March 2010 is upheld.
REASONS FOR DECISION
1. Though there are other grounds of appeal as well, this appeal poses particularly acutely questions of the true scope of sections 316 and 316A of the Education Act 1996 (“the 1996 Act”), which regulate whether a child with special educational needs should be educated within mainstream provision or in a special school or elsewhere. Permission to appeal was given by Upper Tribunal Judge Levenson on 17 June 2010. I held an oral hearing in Manchester on 22 September.
2. The case concerns a boy born in July 2002 and so now aged 8. In this anonymised decision, I shall refer to him as A. He has a diagnosis of agenesis of corpus callosum and severe developmental delay. His Full Scale IQ (given subject to certain caveats) is 45. Less than 1 in 1,000 children have an IQ at such a low level. His comprehension of spoken language is at the two word level. He functions at a pre-school level, P5-P6, and follows the Foundation Curriculum normally followed by children aged 3-5. His age would put him in Year 4, but he is currently attached to a Year 3 class.
3. It is not necessary to set out here the history of the litigation. The position adopted by Mrs U, A’s mother, understandably evolved during the proceedings. By the time the matter reached the First-tier Tribunal, there were differences over a small number of matters of detail in part 3 of U’s statement of special educational needs (“statement”), but the main issue was over what should be included in part 4, where Mrs U wanted a type of education - mainstream education – to be named. This was opposed by the local authority, who wanted a particular special school to be named.
4. While there was a very substantial body of professional opinion that said that A’s educational interests would be better served if he were to attend the special school, that was not his mother’s wish. The view which the tribunal took of sections 316 and 316A was that they were prevented from considering whether mainstream education was unsuitable for A. I need to consider whether that view was correct.
5. Those sections provided at the material time (so far as relevant):
“316. (1) This section applies to a child with special educational needs who should be educated in a school.
(2) If no statement is maintained under section 324 for the child, he must be educated in a mainstream school.
(3) If a statement is maintained under section 324 for the child, he must be educated in a mainstream school unless that is incompatible with–
(a) the wishes of his parent, or
(b) the provision of efficient education for other children.
(4) In this section and section 316A “mainstream school” means any school other than–
(a) a special school, or
(b) an independent school which is not–
(i) a city technology college,
(ii) a city college for the technology of the arts, or
(iii) an Academy.
316A. (1) Section 316 does not prevent a child from being educated in–
(a) an independent school which is not a mainstream school, or
(b) a school approved under section 342,
if the cost is met otherwise than by a local education authority.
(2) [not material]
(3) Section 316 does not affect the operation of–
(a) section 348, or
(b) paragraph 3 of Schedule 27.
(4) If a local education authority decide–
(a) to make a statement for a child under section 324, but
(b) not to name in the statement the school for which a parent has expressed a preference under paragraph 3 of Schedule 27,
they shall, in making the statement, comply with section 316(3).
(5) A local education authority may, in relation to their mainstream schools taken as a whole, rely on the exception in section 316(3)(b) only if they show that there are no reasonable steps that they could take to prevent the incompatibility.
(6) An authority in relation to a particular mainstream school may rely on the exception in section 316(3)(b) only if it shows that there are no reasonable steps that it or another authority in relation to the school could take to prevent the incompatibility.
(7) [not material]
(8) An authority must have regard to guidance about section 316 and this section issued–
(a) for England, by the Secretary of State,
(b) for Wales, by the National Assembly for Wales.
(9) That guidance shall, in particular, relate to steps which may, or may not, be regarded as reasonable for the purposes of subsections (5) and (6).
(10) [not material]
(11) “Authority”–
(a) in relation to a maintained school or maintained nursery school , means each of the following–
(i) the local education authority,
(ii) the school's governing body, and
(b) [not material].”
6. However, these two sections were substituted for the previous form of section 316 by the Special Educational Needs and Disability Act 2001 (“the 2001 Act”). The previous form was in the following terms:
“316. (1) Any person exercising any functions under this Part in respect of a child with special educational needs who should be educated in a school shall secure that, if the conditions mentioned in subsection (2) are satisfied, the child is educated in a school which is not a special school unless that is incompatible with the wishes of his parent.
(2) The conditions are that educating the child in a school which is not a special school is compatible with—
(a) his receiving the special educational provision which his learning difficulty calls for,
(b) the provision of efficient education for the children with whom he will be educated, and
(c) the efficient use of resources.”
7. Comparison of the two versions of section 316 reveals that, among other changes, the express requirement of compatibility with the special educational provision called for by the pupil’s learning needs, contained in section 316(2)(a), was specifically removed. This was a premise of the Court of Appeal’s judgment in R(H) v SENDT and LB Hounslow [2004] EWCA Civ 770; [2004] ELR 424. However, Ms Stout suggests, it does not follow from that removal that all questions of compatibility with the provision needed by the pupil have ceased to be relevant. She bases her argument on a number of other provisions, to which reference must be made. (It was accepted by Mr Cross that, though the argument was not put - at any rate in these terms - by the local authority at the First-tier Tribunal hearing, where it was not legally represented, it was nonetheless right that the Upper Tribunal should decide on the point.)
8. By section 7 of the 1996 Act:
“The parent of every child of compulsory school age shall cause him to receive efficient full-time education suitable—
(a) to his age, ability and aptitude, and
(b) to any special educational needs he may have,
either by regular attendance at school or otherwise.”
9. The provisions of section 437 and following are concerned with enforcing this duty, though nowhere is it said that they are the only means of doing so. Section 437 sets out a process which may lead to a school attendance order being made, under which a parent has to cause the pupil to become a registered pupil at a school named in the order. The process is triggered if it appears to the local authority that a child is not receiving “suitable education”, defined in part (by section 436A(3)) in terms of suitability to any special educational needs the child may have. Failure to comply with a school attendance order is an offence under section 443, while section 444 creates further offences where, with or without the knowledge of the parent, a child fails to attend regularly at a school at which he is registered. There is also a regime of penalty notices, created by section 444A, as an alternative to prosecution.
10. Reference should also be made to the power of a court under section 36(1) of the Children Act 1989, on application by a local authority, to make an education supervision order. The test for...
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