Essex County Council v Antony John Williams

JurisdictionEngland & Wales
JudgeMrs Justice Baron DBE,Lord Justice Moses,Lord Justice Maurice Kay
Judgment Date15 November 2011
Neutral Citation[2011] EWCA Civ 1315
Docket NumberCase No: C3/2011/1083
Date15 November 2011
CourtCourt of Appeal (Civil Division)

[2011] EWCA Civ 1315

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER (Judge Jacobs)

Royal Courts of Justice

Strand, London, WC2A 2LL

Before:

Lord Justice Maurice Kay, Vice President of the Court of Appeal, Civil Division

Lord Justice Moses

and

Mrs Justice Baron

Case No: C3/2011/1083

Ref No: S30942009

Between:
Essex County Council
Appellant
and
Mr Antony John Williams
Respondent

Ms Fiona Scolding (instructed by Essex County Council) for the Appellant

Mr David Wolfe (instructed by Levenes) for the Respondent

Hearing date : 19 October 2011

Mrs Justice Baron DBE
1

The issue in this appeal concerns the age at which a Local Authority's (LA) responsibilities in respect of maintaining a child's Statement of Special Educational Needs ("SEN") come to an end. It is an issue of general importance because there are in excess of 230,000 children in England and Wales with Statements of SEN.

The Factual Matrix

2

MW was born on the 26 th August 1989 (22 years old). She has Down's Syndrome with the result that her functional age is about 10 years or less. She has severe learning difficulties and special vulnerabilities which affect her ability to be independent and self protective. Her physical health, as a result of complications related to her Down's Syndrome, is not as robust as it should be. Despite all these difficulties, she enjoys her life and brings great joy to her parents who love her and who have shown enormous devotion over the years. Their care commands the Court's admiration.

3

MW has had a Statement of SEN maintained by Essex County Council ("the Local Authority") since about 1992 (when she was 3 years old). She started school at 5 years and attended mainstream education until she was 16 years. In September 2006 she transferred to C College, a school which specialises in pupils with severe and complex learning difficulties from the age of 2 years up to 19 years. It would seem that MW flourished within that environment, particularly enjoying drama lessons.

4

In February 2008 the Local Authority wrote to MW's parents specifying that they would cease to maintain her Statement of SEN from July 2008 (a short time before her 19 th birthday). Her parents did not accept this decision. Consequently, her father, Mr W, engaged the statutory appeals procedure and was successful in the First Tier Tribunal. The favourable decision was on the basis that MW's schooling had been interrupted by ill health and so she should be provided with an additional year's education. The statutory basis for that decision is not clear given that MW was already 19 years when it was handed down. However, it must be accepted that the outcome was in line with the relevant Code of Practice, issued pursuant to Section 313 of Education Act 1996 (the Act). At paragraph 9.61 it provides that

"….Some pupils with statements of special educational needs will need to remain in school after the age of 16. LEA's remain responsible for such pupils until they are 19. There will be occasions where the natural completion of an academic year or completion of a particular course would take pupils with a statement beyond their 19 th birthday. The Learning and Skills Council, when it becomes responsible for funding sixth form provision, will, as a condition of funding, require LEA's in those situations to maintain statements until the end of the academic year in which their 19 th birthday falls" [emphasis added].

5

Some months later, on 13 th March 2009, the Local Authority wrote to MW's parents once again indicating that they would cease to maintain her Statement. This was on the basis that (a) there was a possibility that the school would not admit M for a further year as she was above their age limit; (b) MW's special educational needs could be met by attendance at a College of Further Education in the locality (which had indicated that it could meet her needs); (c) MW could and should begin to interact socially with young people of her own age group rather than remain at school where all other pupils were at least two years younger.

The Tribunal proceedings

6

MW's parents did not accept this decision and her father appealed against it on the 14 th May 2009. In particular, he did not agree that a College of Further Education (FE) could meet MW's needs. Both her parents wanted MW to have a further transitional year at C College whilst assessments were made for appropriate future provision. They argued, inter alia, that as MW functioned at a level far below her chronological age, she should continue in her placement at secondary school and that establishment should continue to provide her with support and education for such period as she required.

7

The Local Authority opposed the appeal on the basis that MW was no longer a "child" as defined under Part IV of the Education Act 1996 and that education was available for her at a College of Further Education. They made an application pursuant to Rule 8 (3) of the First Tier Tribunal Rules 2008 to strike out the appeal on the basis that the Tribunal did not have jurisdiction in relation to the proceedings.

8

On 8 th September 2009 a hearing was held before the First Tier Tribunal to determine that issue. The First Tier Tribunal struck out the claim and determined that, whilst there may be a discretion to permit a pupil to remain in school beyond their 19 th birthday:

"MW is no longer a child, as defined by s312(5) of the Education Act 1996. Thus this is not a case in which this Tribunal has jurisdiction. The Appeal should be struck out".

9

The First Tier Tribunal granted MW's father permission to the Upper Tribunal on the basis that MW may still qualify for a Statement if she was following a particular course of education pursuant to section 2 (5) of the Act.

10

The appeal was heard by Judge Jacobs at the Upper Tribunal on 5 th March 20He determined that the First Tier Tribunal had had jurisdiction to hear the appeal under Paragraph 11(2)(b) of Schedule 27 of the Act. Moreover, he specifically found that MW fell within the definition of a "child" under Part IV of the Education Act 1996. In particular he stated:

"31. A literal reading of the legislation might suggest that someone aged 19 was no longer entitled to a Statement. That was my initial reaction on studying the papers for this appeal. The duties in respect of a statement are in respect of a child for whom the local education authority is responsible. The definition of child under s312(5) is inclusive, not exhaustive. That means that "child" bears the meaning that it would otherwise bear plus the extended meaning under the definition [emphasis added]. In the Education Act, that means that "child" has the meaning in section 579 extended by section 312(5). Putting them together produces this result: a child is someone "who is not over compulsory school age" or "who has not attained the age of 19 and is a registered pupil at a school." A person who is aged 19 or more does not satisfy either element of that definition. Accordingly, the local education authority was no longer under a duty to maintain that statement. Paragraph 9(2) of Schedule 27 applied with the result that paragraph 9(1) relieved the local education authority of the duties under paragraph 11. Having reached the age of 19, Maria's Statement lapsed.

32. Having studied the authorities and considered the arguments at the oral hearing, the essential steps in that reasoning are wrong".

11

Judge Jacobs concluded it was too rudimentary to use age as the definition simpliciter. He accepted the argument put forward on behalf of the parents that MW remained within the definition of "child" because, although she was over the age of 19 years, she was a registered pupil at a secondary school and pursuant of Section 2 (5) of the Act as read in conjunction with section 5, she was entitled to remain in her school until she had completed her course which, I note, in MW's case lead to no particular qualification and had no specific end date. He stated:

"36. ……. The issue that arises is: was it no longer necessary to maintain her statement? I accept Mr Wolfe's (for the Parents) submissions that it is too simple to give the answer no because she has now attained 19. The issue is whether the statement is still necessary despite her age. Her age is relevant but not decisive. The reason is that stages of education are not fixed by rigid cut off dates. Children do not have to move from primary to secondary education as soon as, and only when, they attain a particular age. Secondary education is defined by section 2(2)(a) (ii) to include education suitable for children "who have attained the age of 10 years and six month and whom it is expedient to educate together with senior pupils". Nor does secondary education necessarily end at a particular age. Mr Wolfe also referred me to Section 2(5):

"(5) For the purposes of this Act education provided for persons who have attained the age of 19 is further education but not secondary education: but where a person—

(a) has begun a particular course of secondary education before attaining the age of 18, and

(b) continues to attend that course,

The education does not cease to be secondary education by reason of his having attained the age of 19"

12

The Judge reasoned from this that, because every pupil is entitled to remain in secondary school until they have finished the particular course on which they were embarked prior to reaching 19 years, it followed that MW (as she on a course) was entitled to complete it even though she was 19 years. Therefore, he concluded she remained (and needed to remain)...

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