Julie Carol Richardson v Solihull Metropolitan Borough Council Special Educational Needs Tribunal (Interested Party)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BELDAM,LORD JUSTICE PETER GIBSON,LORD JUSTICE SCHIEMANN |
| Judgment Date | 12 February 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0212-22 |
| Court | Court of Appeal (Civil Division) |
| Date | 12 February 1998 |
| Docket Number | QBCOF 97/1046 CMS4 QBCOF 97/1308 CMS4 |
[1998] EWCA Civ J0212-22
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
(MR JUSTICE DYSON)
Royal Courts of Justice
The Strand
London WC2
Lord Justice Beldam
Lord Justice Peter Gibson
Lord Justice Schiemann
QBCOF 97/1046 CMS4
QBCOF 97/1106 CMS4
QBCOF 97/1308 CMS4
and
and
IN THE CASE OF RICHARDSON:
MR J MOFFETT (Instructed by Messrs Rust Moss & Co., Lancashire, BB5 1LE) appeared on behalf of the Appellant
MR T KERR (Instructed by Michael Blamire-Brown, Solicitor to the Council, Council House, Solihull, B91 3QS) appeared on behalf of the Respondent
MISS N LIEVEN (Instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Interested Party
IN THE CASE OF WHITE:
MR N BOWEN (Instructed by Messrs Teacher Stern Selby, London WC1R 4JH) appeared on behalf of the Appellant
MR J FRIEL (Instructed by Ealing London Borough Corporate Resources & Legal Services, DX5106, Ealing) appeared on behalf of the First Respondent
MISS N LIEVEN (Instructed by Treasury Solicitor, London SW1H 9JS) appeared on behalf of the Second Respondent
IN THE CASE OF HEREFORD & WORCESTER:
MR A SHARLAND (Instructed by Director of Administrative & Legal Services, Hereford & Worcester County Council, DX29941, Worcester) appeared on behalf of the Appellant
MR J MOFFETT (Instructed by Messrs Rust Moss & Co., Lancashire, BB5 1LE) appeared on behalf of the Respondent
Thursday 12th February, 1998
There are three appeals before the court from decisions of the High Court on appeal from decisions given under sec. 326 of the Education Act 1996 (the 1996 Act) by the Special Educational Needs Tribunal. Mrs Richardson and Mrs White appeal from the decision of Mr Justice Dyson of 8th July 1997 dismissing their appeals from the decision of the Special Education Needs Tribunal. The Hereford and Worcester County Council appeal from the decision of Mr Justice Collins of 4th September 1997 dismissing its appeal from the Special Education Needs Tribunal. An appeal lies to the High Court from the decision of the Tribunal only on a question of law. The question common to all three appeals is whether, and in what circumstances, the Tribunal is obliged to order a local education authority to specify the name of the school as part of the special educational provision to be made for a child who has special educational needs in a statement of those needs pursuant to sec. 324(1) of the 1996 Act.
In Mrs White's appeal a further question of law arises as to how far the Tribunal, which includes two members with special educational experience and knowledge, should disclose to a party that it intends to make findings based upon that expertise.
Introduction.
Local educational authorities are enjoined by sec. 13 of the Act, so far as their powers enable them to do so, to:
"…contribute towards the spiritual, moral, mental and physical development of the community by securing that efficient primary education, secondary education and further education are available to meet the needs of the population of their area."
The Authority in exercising its powers and performing its duties under the Act is by sec. 9 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. The Education Act 1981 had implemented the main recommendation of the Warnock Committee's Report that special education should be provided for children to meet their special educational needs rather than to provide for defined categories of handicap. So the needs of the population in the area of an authority include the need for special educational provision to be made for children who have special needs. Part IV of the 1996 Act contains the obligations of an authority to provide for children with such needs. Sec. 312(1) provides:
"A child has "special education needs" for the purposes of this Act if he has a learning difficulty which calls for special educational provision to be made for him."
In general a child has special educational needs if he has a significantly greater difficulty in learning than the majority of children of his age or has a disability which prevents or will when he is of school age prevent him from making use of the ordinary educational facilities in the authority's area. Chapter I of Part IV is concerned with the identification of a child's needs and the making of special provision to meet them. As a general principle, children with special educational needs should, subject to the wishes of the parent, be educated in a school which is not a special school provided he can there receive the special educational provision he needs and his education is compatible with the needs of other children in the school and the efficient use of resources (sec. 316). Chapter II of Part IV makes provision for special schools. They are approved by the Secretary of State and are of three categories: maintained special schools, grant-maintained special schools and special schools that are neither maintained nor grant-maintained schools. Sec. 342 gives the Secretary of State power to approve any school which is specially organised to make special educational provision for pupils with special educational needs (and which is not a maintained or grant-maintained school). It is clearly recognised in Part IV that the learning difficulties of children may be so diverse that it is necessary to make provision for them otherwise than in schools (see sec. 319) and in some instances to make provision for children to receive special educational provision outside England and Wales (see sec. 320). When such provision is made, the authority may make arrangements which include contributing to or paying fees charged by an institution outside England and Wales, the expenses reasonably incurred in maintaining him while he is at the institution or travelling to and from it, and expenses incurred by any person accompanying him. The authority is obliged to identify any child in its area who has special educational needs and to determine the special educational provision which needs to be made for him (see sec. 321). Having identified a child with such needs, the authority must assess the extent of those needs having first given notice to the child's parents that it proposes to make the assessment, informing them of their right to make representations. In making its assessment the authority must take into account any representations from the parents and if, after doing so, it remains of opinion that the child does need special educational provision the authority must make an assessment of his needs. That assessment takes the form of a statement of special educational needs for which provision is made by sec. 324. This section lies at the heart of these appeals. Recognising that such statements may well give rise to differences of opinion between the parents and the authority, the Act makes provision in sec. 326 for the parent of a child for whom the authority maintains a statement under sec. 324 to appeal against the contents of the statement to the Special Education Needs Tribunal. The nature of the appeal and the powers and duties of the Tribunal are also called in question in these appeals.
The Relevant Statutory Provisions.
The Statement of Special Educational Needs.
Sec. 324 of the Act provides:
(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 educational 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 sub-section (4).
(4) The statement shall—
(a) specify the type of school or other institution which the local educational 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) Where a local education authority maintain a statement under this section then—
(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
(b) if the name of a maintained, grant-maintained or...
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