Dudley Metropolitan Borough Council v Shurvinton and Others
| Jurisdiction | England & Wales |
| Judge | Lord Justice Davis:,Lord Justice Richards:,Lord Neuberger Mr: |
| Judgment Date | 21 March 2012 |
| Neutral Citation | [2012] EWCA Civ 346 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | Case No: C3/2011/1216 |
| Date | 21 March 2012 |
[2012] EWCA Civ 346
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
(Administrative Appeals Chamber)
Royal Courts of Justice
Strand, London, WC2A 2LL
[2011] UKUT 67 (AAC)
The Master of the Rolls
Lord Justice Richards
and
Lord Justice Davis
Case No: C3/2011/1216
Mr Richard McManus QC and Mr Jonathan Auburn (instructed by Dudley Metropolitan Borough Council Legal Services) for the Appellant
Mr Russell Holland (directly instructed Pro Bono) for the Respondent
Hearing date: 27 February 2012
Introduction
This is a second stage appeal, brought by leave granted by Pitchford LJ, from a decision of the Upper Tribunal (Administrative Appeals Chamber) dated 11 th February 2011. It involves a consideration of the relationship, in the context of special educational needs, between the provisions contained in Part IV of the Education Act 1996 as amended ("the 1996 Act") and the provisions contained in Part IX of the 1996 Act relating to school transport.
It is said that the points arising are of general public importance. As may appear from what I say below I am not quite so sure that they are.
The background facts
The background facts can be shortly stated and are these.
The respondents' son, J, was born on 10 July 2005. He has a diagnosis of autism. Formal testing had not been possible but it was considered that J had moderate learning difficulties. He also had a degree of speech and language impairment. At pre-school he found it difficult to follow an adult led agenda and was described as living in his own world. He was described as happy and affectionate at home, although his behaviour was sometimes difficult. He had, at the relevant time, very little spoken language.
J had at the age of 4 begun a very gradual integration into reception class at a school called The Brier School, a special school for pupils with moderate learning difficulties and other more complex difficulties. He seemed happy there and his parents wished him to attend there. That was their preference, and they said so.
It seems that the appellant local authority has a policy on the provision of free transport from home to school to the effect that, for children with special educational needs, free transport is generally provided only to the nearest suitable school.
There is another local school called Halesbury School, also equipped to cater for those with special educational needs, which is some 1.1 miles closer than The Brier School to the home of J's family. It was estimated that the extra costs of transport for J to The Brier School as compared to Halesbury School would be between £195 (shared transport) and £312 (individual transport) per year. It was not maintained that J could be expected to walk to either school.
The appellant provided a Statement of Special Educational Needs ("SSEN") in respect of J dated the 7 th April 2009. In Part 4 of the SSEN (relating to Placement) the following was stated:
The Local Authority would consider that [J's] needs could be met in his nearest special school for pupils with moderate learning difficulties, namely Halesbury School…[The parents] have expressed a preference for The Brier School…which has been agreed. However in accordance with the Local Authority's home to school transport policy [the parents] will be responsible for all travelling expenses and arrangements".
The parents appealed to the First Tier Tribunal ("FTT") under s.326 of the 1996 Act against that decision. They sought a decision that Part 4 should specify The Brier School and no other school. One consequence of that, if upheld, would have been that the appellant would have been obliged to pay the costs of transporting J to The Brier School. The parents' appeal also, it may be noted, related to other aspects of the SSEN: but those are not relevant for present purposes.
The appeal duly came before the FTT. The FTT upheld the parents' appeal. It ordered, as to Part 4 of the SSEN, that the local authority should specify The Brier School (alone).
As part of their appeal, it is to be observed, the parents had argued that Halesbury School could not meet J's needs. Having assessed the evidence, the FTT rejected that and expressly concluded that J's needs could be met at Halesbury School and that it was an appropriate placement for him. The FTT then went on to record the local authority's acceptance that The Brier School could also meet J's needs; indeed he had a place there. It was recorded that "the barrier to acceding to parental preference was the costs of transport which, the LA says, would be an inefficient use of resources." The FTT considered that it was reasonable for it to take account of other circumstances impinging on the issues of parental preference and efficient use of resources. The FTT balanced the difference in transport costs with all of the circumstances of J's school attendance. It was found that J's mother was unable to drive for medical reasons (his father apparently was at work at the relevant times of day). An "established communication peer group" at The Brier School was also assessed as being potentially a "very significant advantage" to J. The FTT concluded in this way:
"These factors must be weighed in the balance with the relative costs. Given the very small difference in this case between the cost of transporting [J] (in shared or individual transport) to Halesbury or The Brier we concluded that a decision to name The Brier would not constitute an inefficient use of recourses. We concluded therefore that The Brier should be named at Part 4 of [J's SSEN]."
An appeal was made by the appellant to the Upper Tribunal ("UT"). The grounds were much to the like effect as advanced in this court. A strongly constituted UT – comprising Judge Pearl, Judge Mesher and Judge Lane – dismissed the appeal by a detailed and thorough reserved decision dated 11 th February 2011.
It will be necessary in due course to refer to aspects of that decision. But to give it context it is convenient first to set out the relevant statutory provisions at this stage.
The Statutory Provisions
Section 9 of the 1996 Act is in these terms:
"Pupils to be educated in accordance with parents' wishes
9. In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State and local education authorities shall 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."
It may be noted that although the section is headed "Pupils to be educated in accordance with parents' wishes" what the section actually provides, of course, is that the Secretary of State and local authorities are to "have regard to" the general principle there set out, so far as compatible with the matters there set out.
Part IV of the 1996 Act relates to children with special educational needs: defined in s.312. Section 313 provides for the issuance of a code of practice. Section 324 relates to the making and maintaining of a SSEN. In the relevant respects it provides as follows:
"324(1) If, in the light of an assessment under section 323 of any child's educational needs and of any representations made by the child's parent in pursuance of Schedule 27, it is necessary for the local education authority to determine the special educational provision which any learning difficulty he may have calls for, the authority shall make and maintain a statement of his special educational needs.
(2) The statement shall be in such form and contain such information as may be prescribed.
(3) In particular, the statement shall –
(a) give details of the authority's assessment of the child's special educational needs, and
(b) specify the special educational provision to be made for the purpose of meeting those needs, including the particulars required by subsection (4).
(4) The statement shall –
(a) specify the type of school or other institution which the local education authority consider would be appropriate for the child,
(b) if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement, and,
(c) specify any provision for the child for which they make arrangements under section 319 and which they consider should be specified in the statement.
….
(5)(a) unless the child's parent has made suitable arrangements, the authority –
(i) shall arrange that the special educational provision specified in the statement is made for the child, and
(ii) may arrange that any non-educational provision specified in the statement is made for him in such manner as they consider appropriate, and
…."
Section 326 provides for appeals against the contents of a SSEN. In particular:
"326 (1) The parents of a child for whom a local education authority maintain a statement under section 324 may appeal to the Tribunal—
(a) when the statement is first made,
(b) if an amendment is made to the statement, or
(c) if, after conducting an assessment under section 323, the local education authority determine not to amend the statement.
( IA) An appeal under this section may be against any of the following –
(a) the description in the statement of the local education authority's assessment of the child's special educational needs,
(b) the special educational provision specified in the statement (including the name of a school so specified),
(c) if no school is specified in...
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