Michael Colin Sage v South Gloucestershire County Council and Others
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE HIDDEN |
| Judgment Date | 19 June 1998 |
| Judgment citation (vLex) | [1998] EWCA Civ J0619-5 |
| Court | Court of Appeal (Civil Division) |
| Docket Number | CO/1748/98 |
| Date | 19 June 1998 |
[1998] EWCA Civ J0619-5
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
The Strand
London
Mr Justice Hidden
CO/1748/98
MR NICHOLAS BOWEN (instructed by Messrs Coningsys, Croydon CR9 1XE) appeared on behalf of THE APPLICANT
MISS TANYA CALLMAN (instructed by South Gloucestershire County Council) appeared on behalf of THE RESPONDENTS
Friday 19 June 1998
The applicant seeks an extension of time pursuant to Order 3, rule 5 of the Rules of the Supreme Court to lodge an appeal on a point of law against a decision of the Special Educational Needs Tribunal made on 30 March 1998 and received by the applicant on 1 April 1998. Notice of Appeal should, under Order 55, rule 4(2), have been served within 28 days of the receipt of the Tribunal's decision and time therefore expired on 29 April. The summons to extend time was lodged on 11 May 1998.
The applicant had originally appealed to the Tribunal pursuant to s.236 of the Education Act 1996 against the content of an amended statement of special educational needs dated 22 October 1997 issued by the first respondent concerning the applicant's daughter Bethany. The bone of contention was the question of parental preference as enacted in paragraph 5 of Schedule 27 of the Education Act 1996 as to which school should be named in the statement, either Walmley Tower, as proposed by the first respondent, or Somerfield, as proposed by the applicant and his wife. The Tribunal found "that both schools are able to make provision for Bethany's special educational needs but the naming of Somerfield School in the statement would not be compatible with the efficient use of the authority's resources". That finding was, in fact, contrary to the Court of Appeal's decision in ( In re Burridge TLR 26.3.98).
The applicant's affidavit makes clear that, having received the Tribunal's decision on 1 April, he was telephoned the day after by an adviser from the charity Mencap, a Mrs Richardson (of whom more later) who said that she had been contacted by Mrs Sewell, who was, in fact, a lay member of the Tribunal who had heard the appeal. Mrs Sewell had told Mrs Richardson that the second respondent, Neil Confrey, the Chairman of the Tribunal, had suggested to her that she contact the applicant since there was a strong possibility that the Tribunal's decision was flawed as a result of the recent decision in the Court of Appeal. Mrs Richardson went on to say that Mrs Sewell, the Tribunal member, had told her that if the applicant made a request for a review of the Tribunal's decision then it was very likely that the applicant would be successful. Mrs Richardson also faxed to the applicant a copy of the synopsis of the relevant Court of Appeal decision with a draft letter which she suggested the applicant wrote to the second respondent requesting a review. Lest it be thought that the activities of Mrs Richardson, hitherto unexplained, are those the law recognises as perhaps being those of an officious bystander, that was not the case.
A letter in the bundle dated 11 May 1998 on Mencap notepaper is signed by the same Mrs Richardson. In the first paragraph she states:
"I was contacted on the evening of 1 April 1998 by Mrs Yvonne Sewell, a fellow lay member of the Special Educational Needs Tribunal."
It was clear there that the applicant was being contacted indirectly by a member of the Special Education Needs Tribunal who had heard his case through a fellow member of the Special Education Needs Tribunal who had not heard his case in order to pass on to him a message from a third member of the Tribunal, the Chairman who actually sat with Mrs Sewell on the Tribunal looking into Bethany's case. It is therefore clear that Mrs Richardson was far from being an officious bystander. In passing on the message she was seeking to be helpful, as she was in faxing a copy of the Court of Appeal decision in synopsis and a draft letter for the applicant to use. The rest of the letter of 11 May 1998 sets out entirely the history of how that telephone call came to be made. It reads:
"I was contacted on the evening of 1 April 1998 by Mrs Yvonne Sewell, a fellow lay member of the Special Educational Needs Tribunal.
This contact was at my home address out of office hours.
Mrs Sewell asked if I had seen the latest 'digest of decisions' regularly released by the Tribunal to its panel members.
I had not opened my home mail yet, so Mrs Sewell told me that it was important that I did so with particular reference to a House of Lords' decision on the use of LEA money as generally applicable from the public purse rather than to particular LEA's individually.
Mrs Sewell gave me to understand that the Chair of the panel she had recently sat on regarding 'that family you have been working with' i.e. the Sage family, had asked her to direct my attention to this particular House of Lords' decision. It was felt here was an opportunity for this family to ask for that panel's decision to be reviewed in the light of the House of Lords' decision."
I pause to point out that this was not, in fact, a House of Lords' decision, but a Court of Appeal finding. The letter finishes:
"I read this particular decision, found it was extremely relevant to Bethany Sage and contracted the Sage family next morning, 2 April, faxing the relevant information to Mrs Sage at her work location."
As a result of that telephone call on 2 April, the day after the Tribunal's decision had been received by the applicant, the applicant wrote to the Tribunal and the Tribunal acknowledged his letter on 7 April. The letter, which is signed by the Team Leader for South Gloucestershire Appeals, reads:
"Thank you for your letter of 2 April which we received on 6 April requesting a review of the Tribunal's decision on your appeal.
In accordance with the Special Educational Needs Tribunal Regulations 1995 I am forwarding your letter to the chairman who heard your appeal, Mr Confrey. He will consider your application and I will let you know the outcome as soon as possible. In the meantime if you are anticipating an appeal to the High Court I encourage you to take independent legal advice as explained in the letter covering the decision."
Though the letter encouraged the applicant to take independent legal advice, because he and his...
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