Oxfordshire County Council v GB and Others
| Jurisdiction | England & Wales |
| Judgment Date | 22 August 2001 |
| Neutral Citation | [2001] EWCA Civ 1358 |
| Docket Number | Case No: C/2001/1142 |
| Court | Court of Appeal (Civil Division) |
| Date | 22 August 2001 |
[2001] EWCA Civ 1358
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
ADMINISTRATIVE COURT (Sir Olivcr Popplewell)
Royal Courts of Justice
Strand, London, WC2A 2LL
Lord Justice Aldous
Lord Justice Robert Walker and
Lord Justice Sedley
Case No: C/2001/1142
Ms Karen Steyn (instructed by Oxfordshire County Council Legal Services for the Appellant)
Mr. John Friel (instructed by A.E. Smith and Son for the Respondents)
THIS IS THE JUDGMENT OF THE COURT PREPARED BY SEDLEY LJ.
The problem
When a child of school age has special educational needs, the local education authority (LEA) is required under Part IV of the Education Act 1996 to make and maintain a statement of those needs. By s. 324(5) the LEA is then required to arrange for the making of the educational provision which has been specified as appropriate for the child, unless the parents have already done so. Any dispute between the parents and the LEA is to be resolved by a Special Educational Needs Tribunal (SENT) constituted under the same Part.
In discharging its functions the LEA – and therefore the SENT in its turn – is required by s.9 of the Act 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."
Perhaps predictably, the exception – the limitation of expenditure has come to dominate the rule of parental choice.
The problem posed by this appeal, for which permission was given by Sir Oliver Popplewell, sitting as a deputy judge of the Administrative Court at the conclusion of his judgment in favour of the parents and the SENT on 9 May 2001, can be stated in a narrow and a broad form. Put narrowly, it is whether in making a comparison between two appropriate schools, one an independent specialist school, the other a mainstream LEA school with a specialist unit, the cost of the latter is to be taken as the global cost of LEA provision (either in total or for the school in question) divided by the relevant number of pupils, or simply the additional budgetary cost of placing the child there. In its broader form, it is whether the cost of placing a child in the state sector should be taken to be an individual fraction of the global cost of local state provision, or whether that provision is to be regarded as given and the relevant expenditure quantified as the additional amount which the placement will cost the LEA.
History
The events giving rise to the present case can be stated in short form. M, now in his mid-teens, has a serious hearing loss requiring specialist learning support. He was placed in School L, a mainstream LEA comprehensive school with a specialist hearing-impaired unit. He and his parents were unhappy with it, and he was moved by them to an independent special school, MH. The LEA, however, had specified School L in the statutory statement and would not change it. So the parents appealed to the SENT.
The SENT's decision, in essence, was that both schools were appropriate to M's needs, provided that School L was given a fair chance to integrate M; that School MH, however, offered the special benefit of a deaf peer-group; and that the annual cost differential of £2651 was outweighed by this benefit, corresponding as it did to the parents' preference. If, however, the parents were to require the LEA to provide transport, the extra cost would represent excessive public expenditure and would render School L the appropriate one.
The arithmetic by which this differential was arrived at was the following. The fees for a day placement at School MH were £16,800 a year. This therefore was what it would cost the LEA to place M there. The annual cost of placing M at School L would in the SENT's view be:
| a. Learning support assistant (10 hours) | 2,473 |
| b. Age weighted pupil unit (AWPU) cost | 2,076 |
| c. Teacher for the deaf (5 hours) | 5,500 |
| d. Transport | 4,000 |
| £ 14,049 |
Unfortunately the SENT's written decision gives no reasons for its calculation. The elements have been reconstituted for us by counsel on the basis of the figures tendered in evidence by the LEA. Although the SENT, as is normal, took no part in the proceedings below, a statement of truth was put in by Ms Elizabeth May, who chaired it and who is a solicitor (the other two members will have been lay members). It purports to amplify the written reasons though, as it happens, it does not do so materially for present purposes.
We would add, however, that we do not consider it generally appropriate that a statutory tribunal which is required to give reasoned decisions should respond to an appeal by purporting to amplify its reasons. As Steyn LJ pointed out in R v Croydon LBC, ex parte Graham (1993) 26 HLR 286, 292, the very existence of material gaps in the reasons accompanying the decision may have rendered it unlawful. The decision of this court in Flannery v Halifax Estate Agencies Ltd [2000] 1 All ER 373 (see in particular 379 g-h) concerns applications made when seeking permission to appeal following delivery of judgment for amplification of the judge's grounds for preferring one side's testimony to the other's, and is not in point here. If reference needs to be made to the evidence for the purposes of a statutory appeal, the ordinary resort is to as much of the documentation and notes of evidence as will help to determine what material basis there was for the impugned part of the decision: see Webb v Anglian Water Authority [1981] ICR 811, South Glamorgan CC v L and M [1996] ELR 400; McManus, Education and the Courts, paragraphs 3–40 to 3–44. Fresh evidence, even on judicial review, has a restricted ambit (see R v Secretary of State for the Environment, ex parte Powis [1981] 1 WLR 584;R v Westminster City Council, ex parte Ermakov [1996] 2 All ER 302) which can be no larger on a statutory appeal. Decisions such as that of Latham J in S v SENT [1995] 1 WLR 1627, 1635, admitting evidence on the question whether there had been any admissible basis for the SENT's decision, may fall within this restricted field, especially since SENT reasons are permitted by the SENT Regulations 1994, reg. 30(2) to be in summary form; but the practice described (without doubt accurately) in McManus, op.cit., paragraph 3–45 of parties submitting evidence at will to the court hearing an appeal against a SENT decision is in our present view...
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