MH, R v Special Educational Needs & Disability Tribunal and Another

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLord Justice Jonathan Parker
Judgment Date23 June 2004
Neutral Citation[2004] EWCA Civ 770
Docket NumberCase No: C3 2004 0486

[2004] EWCA Civ 770

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT – Mr Justice Pitchford

Royal Courts of Justice

Strand,

London, WC2A 2LL

Before:

Lord Justice May

Lord Justice Jonathan Parker and

Lord Justice Dyson

Case No: C3 2004 0486

Between:
The Queen on The Application of Mh
Appellant
and
(1) The Special Educational Needs and Disability Tribunal
(2) The London Borough of Hounslow
Respondents

Mr David Wolfe (instructed by Messrs Alexander Harris) for the Appellant

Mr Steven Kovats (instructed by Treasury Solicitor) for the First Respondent

Mr Peter Oldham (instructed by Legal Services of London Borough of Hounslow) for the Second Respondent

Lord Justice Jonathan Parker

This is the judgment of the court.

INTRODUCTION

1

This is an appeal from a judgment of Pitchford J delivered on 20 February 2004 in which he gave general guidance as to the meaning and effect of sections 316 and 316A of the Education Act 1996 ("the 1996 Act"), which were introduced into the 1996 Act by way of amendment by the Special Educational Needs and Disability Act 2001 ("the 2001 Act") .

2

The appellant is the mother of a twelve-year old son, whom we will call "D". D has emotional and behavioural difficulties, and is the subject of a statement of special educational needs made by The London Borough of Hounslow as local educational authority ("the LEA") under section 324 of the 1996 Act.

3

Prior to making the statement, the LEA (as it was required to do by paragraph 3 of Schedule 27 to the 1996 Act) offered the appellant the opportunity to express a preference as to the maintained school at which she wished education to be provided for D. The appellant expressed a preference for the "C" school, a mainstream school within the meaning of the 1996 Act. In the event, exercising its judgment under paragraph 3(3) of Schedule 27, the LEA declined to specify the name of the "C" school in the statement of special educational needs; instead, it specified the name of the "S" school, a special school within the meaning of the 1996 Act.

4

The appellant appealed to the Special Educational Needs and Disability Tribunal ("the Tribunal"), which upheld the LEA's decision to reject the appellant's expressed preference for the "C" school. The appellant appealed to the High Court, joining the Tribunal and the LEA as respondents. She appealed on two grounds. First, she contended that in rejecting her preference for the "C" school and in naming instead a special school the LEA had failed to discharge its statutory duty under sections 316 and 316A of the 1996 Act. Secondly, she contended that the Tribunal's decision was in any event defective in law in that it had failed to give sufficient reasons.

5

Before the judge, the respondents conceded that the appeal should be allowed on the second ground (the reasons challenge), and that the matter should be remitted for rehearing by a differently constituted Tribunal. However, the appellant nevertheless invited the judge to address the first ground of appeal, and to give guidance to the Tribunal on the rehearing as to the meaning and effect of sections 316 and 316A and as to the approach which the Tribunal should adopt to the application of those sections. The Tribunal (as respondent) consented to that course, but the LEA opposed it. The judge was concerned as to whether it was appropriate for him to accede to the appellant's invitation in circumstances where the facts of the case had not as yet been properly explored. However, after hearing argument, the judge acceded to the appellant's invitation, and in his judgment he gave guidance, albeit of necessity in general terms, on the issues of law which had been raised.

6

In giving such guidance, to which we refer in detail below, the judge effectively rejected the appellant's submissions. The appellant now appeals to this court.

7

Permission for a second appeal was granted by Longmore LJ on the papers on 5 May 2004.

8

The appellant appears by Mr David Wolfe of counsel (who also appeared below) . The Tribunal appears by Mr Steven Kovats of counsel (before the judge, the Tribunal was represented by Miss Jenni Richards of counsel) . The LEA appears by Mr Peter Oldham of counsel. Mr Oldham did not attend at the hearing before the judge, but he prepared written submissions which the judge considered.

9

The judge having given general guidance on the issues of law raised before him under the first of the appellant's grounds of appeal, it must, as it seems to us, be appropriate for this court to review that guidance on appeal. Indeed, none of the parties to this appeal has suggested otherwise.

THE LEGISLATIVE FRAMEWORK

10

The relevant sections of the 1996 Act are all to be found in Part IV, which is headed ' Special Educational Needs'. Section 312(1) provides that a child has 'special educational needs' for the purposes of the 1996 Act if he has 'a learning difficulty which calls for special educational provision to be made for him'. Section 312(4) (a) defines the expression 'special educational provision' as meaning, in relation to a child who has obtained the age of two, 'educational provision which is additional to, or otherwise different from, the educational provision made generally for children of his age in schools maintained by the local authority (other than special schools) '. The expression 'special school' is defined in section 337(1) as meaning a school which is 'specially organised to make special educational provision for pupils with special educational needs'.

11

Section 321 imposes a general duty on local education authorities to exercise their powers with a view to securing that, of those children for whom they are responsible, they identify those who have special educational needs, and in respect of whom it is 'necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for'. Where a local education authority is of the opinion that a child for whom it is responsible falls or probably falls within that category, it is required by section 323 to notify the child's parent that (among other things) it is considering whether to make an assessment of the child's educational needs. If at the expiry of that notice, and after taking account of any representations made in the meantime, the local education authority remains of the same opinion, it is required to make such an assessment. Section 324(1) provides that if, in the light of such an assessment and of any representations made by the child's parent under Schedule 27 to the 1996 Act, 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 is required to make and maintain a statement of his special educational needs.

12

Section 324 goes on to provide as follows (so far as material):

"(2) The statement shall be in such form and contain such information as may be prescribed.

[(3) ]

(4) The statement shall –

(a) specify the type of school …. 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 …. which they consider would be appropriate for the child and should be specified in the statement, and

[(c) ]

[(4A) ]

(5) Where a local education authority maintain a statement under this section, then –

[(a) ]

(b) if the name of a maintained school …. is specified in the statement, the governing body of the school shall admit the child to the school.

[(5A) ]

[(6) ]

(7) Schedule 27 has effect in relation to the making and maintenance of statements under this section."

13

The Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 (S.I.3455) ("the 2001 Regulations") provide, by regulation 16, that a statement under section 324 shall be in a form 'substantially corresponding' to that set out in Schedule 2 to the Regulations. Schedule 2 to the Regulations requires that Part 4 of the statement shall specify (among other things):

"the type of school which the [local education] authority consider appropriate for the child and if the authority are required to specify the name of a school for which the parent has expressed a preference, the name of that school, or, where the authority are otherwise required to specify the name of a school …., the name of the school … which they consider would be appropriate for the child and should be specified; …."

14

We turn next to Schedule 27 to the 1996 Act, which (by virtue of section 324(7) above) has effect in relation to the making and maintenance of statements under section 324.

15

Paragraph 2 of Schedule 27 provides for service on the child's parent of a copy of the proposed statement. The proposed statement must leave Part 4 blank (see ibid. subparagraphs (2) and (4)) . Paragraph 2A provides that the procedure prescribed by the Schedule shall also apply to any proposed amendment of an existing statement. Paragraph 3 is in the following terms (so far as material):

"3(1) Every local education authority shall make arrangements for enabling a parent –

(a) on whom a copy of a proposed statement has been served under paragraph 2,

(b) on whom a copy of a proposed amended statement has been served under paragraph 2A, or

[(c) ]

to express a preference as to the maintained school at which he wishes education to be provided for his child and to give reasons for his preference.

(2) Any such preference must be expressed or made within a period of 15 days...

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8 cases
  • HS 1350 2010, Bury Metropolitan Borough Council v SU
    • United Kingdom
    • Upper Tribunal (Administrative Appeals Chamber)
    • 4 November 2010
    ...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 n......
  • JR 3126 2011, R (LR by ER) v FtT (HESC) & Hertfordshire CC
    • United Kingdom
    • Upper Tribunal (Administrative Appeals Chamber)
    • 21 June 2012
    ...Part 4. 38. I do not consider that this conclusion is affected in any way by R(H) v Special Educational Needs and Disability Tribunal [2004] EWCA Civ 770. That case in my view is concerned with the priority between the parental choice provisions of Schedule 27, paragraph 3 of the 1996 Act, ......
  • Slough Borough Council v C and Special Educational Needs and Disability Tribunal
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 22 July 2004
    ...needs in mainstream schools. In a recent judgment in MH v. (1) Special Educational Needs and Disability Tribunal and (2) LB Hounslow [2004] EWCA Civ 770 the Court of Appeal gave guidance on how section 316, read together with section 316A, interacts with the provisions of paragraph 3 of sch......
  • HS 3653 2012, Harrow Council v AM
    • United Kingdom
    • Upper Tribunal (Administrative Appeals Chamber)
    • 27 March 2013
    ...this clear (R on the application of MH v The Special Educational Needs and Disability Tribunal and the London Borough of Hounslow, [2004] EWCA Civ 770; Bury MBC v SU, [2011] ELR 14). This is so even though the parents may be acting wrongfully and in breach of their duty under section 9 of t......
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