London Borough of Bromley v Special Educational Needs Tribunal & Others
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SEDLEY,LORD JUSTICE MUMMERY,LORD JUSTICE EVANS |
| Judgment Date | 26 May 1999 |
| Judgment citation (vLex) | [1999] EWCA Civ J0526-7 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | LTA 1999/5119/4 |
| Date | 26 May 1999 |
[1999] EWCA Civ J0526-7
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(MR JUSTICE OWEN)
Royal Courts of Justice
Strand
London WC2
Lord Justice Evans
Lord Justice Mummery
Lord Justice Sedley
LTA 1999/5119/4
MR T STRAKER QC and MR D WOLFE (Instructed by The Borough Secretary & Solicitor of LB Bromley, Bromley, BR1 3UH) appeared on behalf of the Appellant.
MR R GORDON QC and MISS K MARCUS (Instructed by Leigh & Day & Co, London, WC1X 8PP) appeared on behalf of the Second and Third Respondents.
Wednesday 26 May 1999
This is an appeal by a local education authority (LEA) against the decision of Owen J., given on the 14 th January 1999. Owen J. dismissed the LEA's appeal against the decision of a Special Educational Needs Tribunal (SENT), the first Respondent, given on 24 th August 1998. The Tribunal had allowed the appeal of the second and third Respondents against the Appellants' formulation of the special educational needs of their son, S. An order under section 39 of the Children and Young Persons Act 1933 has been in force throughout these proceedings to protect the identity of the child from disclosure.
Owen J. refused leave to appeal. Because of the complexity of the issues the renewed application for leave to appeal has been listed before us with the appeal to follow if leave is granted. It is apparent that this is a proper case for leave, and I would accordingly grant it. What follows relates, therefore, to the substantive appeal. Before us, as before Owen J., the Tribunal has taken no part in the proceedings.
S is now 12 years old. At his birth on 4 th July 1986 he suffered severe trauma which has resulted in life-long mental and physical incapacitation. S's disability, and the central question of law arising from it, are set out in the following passage of Owen J's judgment:
"To understand the problems which S presented and presents to his parents and to the L.E.A. it is necessary to have some realisation of S's disability. S, who is now 12 years of age, has spastic, quadriplegic cerebral palsy, epilepsy and impaired vision. He cannot walk, sit up or stand and is totally reliant on adults for all his mobility needs with the exception of head movements. He is totally reliant on adults for dressing, washing, toileting and feeding: he cannot feed himself. At most he understands some words and phrases but only in contexts which are very familiar to him. Diane Coggings says that S has no speech. Others say that he communicates "through simple vocalising, facial expressions and some body movement". He is considerably developmentally delayed and most of his functioning is said to be below the 12 month level (emphasis added).
However education is defined, S's capacity for education is severely limited. Accepting the O.E.D. definition of "systematic instruction, schooling or training given to the young 1/4 in preparation for life" and bearing in mind that much of S's functioning is below the 12 month level Mr. Reid's evidence to the Tribunal "that the purpose of education for S is to maximise his control over his own environment and that education for S involves a series of over-learning the basic functions of his day, eating, drinking, toileting, dressing etc. and co-operating with them" is, in my judgment, readily and reasonably acceptable. Mr. Reid concluded that S's needs were exceptional, which clearly is so, and that there was a real cognitive need for their provision. I see no reason why the Tribunal should not have accepted this evidence from Mr. Reid and certainly I cannot say that they behaved in a Wednesbury unreasonable way or erred in law in so doing. Once the Tribunal accepted that the purpose of education for S was to maximise his control over his own environment and that education for him involved a series of over-learning the very limited functions of his day it was easy and, inevitable, for the Tribunal to accept the statement of Diane Coggings considered by the Tribunal that he should be exposed to physical activities which will help to develop his physical potential. I see no reason why such development and such exposure should not be regarded as educational."
(Diane Coggings is a paediatric phsyiotherapist consulted by the parents; Albert Reid is a chartered educational psychologist who likewise has advised the parents. The citation from the Oxford English Dictionary is the third and narrowest of the dictionary definitions of education.)
Before us, and no doubt before Owen J., the case has been excellently argued on both sides.
The central issue is the meaning and ambit of "special educational provision" in Part IV of the Education Act 1996. It arises out of the Tribunal's conclusion that S's acknowledged need for physiotherapy, occupational therapy and speech and language therapy formed part of his special educational needs, with the consequence that the provision of these therapies was part of the special educational provision which the LEA must make for him. This, as will be seen, had major consequences for S's placement and, in turn, for the cost to the LEA of providing for his special educational needs.
Within Part IV of the Education Act 1996 (which is principally though not solely a consolidating statute) section 323 requires a local education authority to assess the educational needs of a child with special educational needs. If the assessment so requires, the LEA must then make and maintain a statement of the child's special educational needs, the form and content of which are prescribed in and under section 324:
" 324. Statement of special educational needs (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 sub-section (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) 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 a manner as they consider appropriate, and
(b)if the name of a maintained, grant-maintained or grant maintained special school is specified in the statement, the governing body of the school shall admit the child to the school.
A new subsection (5)(A), not material to this case, has been added by the School Standards and Framework Act 1998.]
(6)Subsection (5)(b) does not affect any power to exclude from a school a pupil who is already a registered pupil there.
(7) Schedule 27 has effect in relation to the making and maintenance of statements under this section."
Schedule 27 contains substantive as well as procedural provisions, but none upon which any issue in the present case turns. The form of a section 324 statement is prescribed under statutory powers by the Education (Special Educational Needs) Regulations 1994. It includes the bracketed rubric to each part of the statement which can be seen in S's statement set out below. It is supplemented by guidance contained in a Code of Practice issued by the Secretary of State under section 313, which also makes it the duty of local education authorities and, on appeal, SENTs, to have regard to the Code's provisions.
S's statement, following the formal introductory material in Part 1 (which included a list of 12 specialist reports on S's needs) took the form set out in Appendix A to this judgment. The parts prescribed by the Regulations are shown there in bold type and in their full prescribed form; S's statement, for intelligible reasons, condenses or omits some of them. The reason why nothing turns upon the LEA's condensation of some of the prescribed rubrics in the case of S's statement is that, by Regulation 13, a form "substantially corresponding" to that which is prescribed is sufficient; and it is plain that the references to the National Curriculum, for example, have no real relevance to a child as disabled as S. It follows from the content of S's statement that, despite his disabilities, he is educable.
The concrete challenge offered by S's parents to the statement was to the proposal to keep him at Rectory Paddock School. Their reason, however —and this is what raises...
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