R (B) v Islington London Borough Council

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeMR JUSTICE CRANSTON
Judgment Date20 August 2010
Neutral Citation[2010] EWHC 2539 (Admin)
Date20 August 2010
Docket NumberCO/6232/2010

[2010] EWHC 2539 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Before: Mr Justice Cranston

CO/6232/2010

Between
The Queen on the Application of B
Claimant
and
The London Borough of Islington
Defendant

MS V BUTLER-COLE (instructed by LEIGH DAY) appeared on behalf of the Claimant

MS L SEYMOUR (instructed by LONDON BOROUGH OF ISLINGTON) appeared on behalf of the Defendant

(As Approved)

MR JUSTICE CRANSTON

Introduction

1

The claimant in this application for judicial review challenges the decision of the London Borough of Islington (“the council”) that it will not maintain a statement of special educational needs beyond the end of the school year in which a young person turns 19, and that therefore this claimant's statement lapsed in July 2010. His case is supported by a decision of the Upper Tribunal, AW v Essex County Council [2010] UKUT 74, and it is on that basis that Wyn Williams J granted permission. The council submits that there is no obligation to continue to provide a statement for the claimant since he is 19 years old. Moreover, where a claimant such as this has reached that age there is no obligation that it should make a determination that the statement should cease, because it does so as a matter of course.

Background

2

The claimant turned 19 years old on 4 January 2010. He has so far spent 3 years undertaking various different courses at the La Swap Sixth Form located at the Acland Burghley School, a comprehensive school in North London. He wishes to stay on at Acland Burghley School to undertake some new A level courses. He is a dystonic quadraplegic with cerebral palsy. That effects his physical and communication skills. Despite those impairments, he has achieved above age-expected levels in some national curriculum subjects. Independent psychological assessments describe him as being a boy who absorbs knowledge rapidly and can make imaginative leaps. His intellectual ability falls well within the above average range. His complex educational needs arise from the contrast between his above average intellectual ability and his marked physical difficulties. He uses a range of communication methods, including definite yes and no head movements, verbalising, independent hand and eye pointing, “switch use”, typing with facilitated communication training and a range of technological aids.

3

The special educational needs statement, amended on 20 July 2004, set out as one of the main objectives that he should follow a carefully planned educational programme, including the national curriculum. The statement detailed the need for him to have the provision of 55 hours worth of learning support assistance per week on an individual basis provided by two learning support assistants. It also set out that the learning support assistants should attend training sessions given by a physiotherapist/occupational therapist. Under that statement he was to be provided with 14 hours per week specialist teacher support from a teacher trained in facilitated communication training and the use of augmentative and alternative training aids and techniques.

4

In a letter from his mother dated 1 March 2010 it is explained that the claimant's health has not been good since January 2009 when he began to suffer from bouts of extreme stress and anxiety. The claimant's mother also describes how the provision of the “eye gaze” system was not made until the end of November 2009, so it was not available for proper use until early this year. The claimant's mother further explains that it had been agreed that the claimant should continue his studies at La Swap, because it would be impractical to meet his educational needs elsewhere. The basis for that reasoning is that that school has developed considerable expertise in meeting his needs, both educational and care, and that has led to good examination results. It is at that school that the specialist teaching is available, as well as the necessary physical alterations and the availability of a quiet study room.

5

A note of a meeting of experts, along with the claimant's mother, dated 22 April 2010 registers the claimant's view that he would like to stay on at Acland Burghley School. The note also records that it was not unusual, in the view of one of the experts, for a student with special needs to take up to 4 years to complete their A levels. There is reference in this note to the claimant moving on to adult services.

6

A “moving on assessment”, dated 8 July 2010, clarifies the position that the claimant might take up to two more years to complete A levels. It records that there is no other suitable provision identified locally and that it is not practicable for the claimant to switch placements in the middle of his studies, both because of the logistics of managing a new timetable and because it is essential that the staff have appropriate training, essential to his needs.

Statutory framework

7

The relevant statutory provisions relating to statements of special educational needs are contained largely in part IV and schedule 27 of the Education Act 1996 (“the 1996 Act”). Three aspects of that Act, other than those in that part and schedule, featured in the present judicial review. Two of these are contained in the introductory part of the Act. Section 2(5) provides that for the purposes of the Act education provided for persons who have attained the age of 19 is further education, not secondary education, but where a person has begun a particular course of secondary education before attaining the age of 18, and “continues to attend that course”, the education does not cease to be secondary education by reason of that person having attained the age of 19. Section 14 of the Act is entitled “Functions in respect of provision of primary and secondary schools” and obliges a local authority, in sub-section 1, to secure that sufficient schools for providing primary and secondary education are available for their area. The third provision is in part X of the Act, “ Miscellaneous and general”. That, defines a child in section 579 as follows:

“579 General interpretation.

(1) In this Act, unless the context otherwise requires—

…“child” means a person who is not over compulsory school age…”

Part IV of the 1996 Act is entitled “Special educational needs” and begins with a definition section, section 312. That section contains the definition of special educational needs: a child has special educational needs for the purposes of the Act if he has a learning difficulty which calls for special educational provision to be made for him. There are also definitions of “learning difficulty” and “special educational provision”. Section 312(5) then contains the definition of child:

“(5) In this Part-

“child” includes any person who has not attained the age of 19 and is a registered pupil at a school.”

8

The marginal note to section 313 is “Code of practice”. It requires the Secretary of State to issue and revise a code of practice “giving practical guidance” in respect of the discharge by local authorities of their functions under part IV of the Act. Sub-section 2 obliges local authorities to have regard to the provisions of the code. Paragraph 9.61 of the code has a bearing on this judicial review and reads as follows:

“The school remains responsible for convening annual review meetings until such time as the pupil leaves school. Some pupils with statements of special educational needs will remain in school after the age of 16. LEAs remain responsible for such pupils until they are 19. There will be occasions where the natural completion of an academic year or completion of a particular course will take a pupil with a statement beyond their 19th birthday. The Learning Skills Council, when it becomes responsible for the funding of sixth form provision, will, as a condition of funding, require LEAs in those situations to maintain statements until the end of the academic year in which their 19th birthday falls.”

9

Section 321 of the 1996 Act imposes a general duty on local education authorities towards children for whom they are “responsible”. Under sub-section 1 a local education authority must exercise their powers with a view to identifying those to whom sub-section 2 applies. Sub-section 2 applies to a “child” if he has special educational needs and it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for. Sub-section 3 then sets out for the purposes of Part IV the children for whom a local education authority are regarded as being “responsible”:

“(3) For the purposes of this Part a local education authority are responsible for a child if he is in their area and—

(a) he is a registered pupil at a maintained school or maintained nursery school;

(b) education is provided for him at a school which is not a maintained school or maintained nursery school but is so provided at the expense of the authority or the funding authority.

(c) he does not come within paragraph (a) or (b) above but is a registered pupil at a school and has been brought to the authority's attention as having (or probably having) special educational needs, or.

(d) he is not a registered pupil at a school but is not under the age of two or over compulsory school age and has been brought to their attention as having (or probably having) special educational needs.”

The procedure for the assessment of educational needs of a child is set out in Section 323 of the 1996 Act. That leads to the duty under section 324(1), to make and maintain statements if there...

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