R (M) v Sutton London Borough Council
| Jurisdiction | England & Wales |
| Judge | Lord Justice Latham,Lord Justice Thomas,Lord Justice Moore-Bick,Lord Justice Richards,Lord Justice Pill |
| Judgment Date | 21 November 2007 |
| Neutral Citation | [2007] EWCA Civ 619,[2007] EWCA Civ 1205 |
| Docket Number | Case No: C1/2007/0564 |
| Court | Court of Appeal (Civil Division) |
| Date | 21 November 2007 |
[2007] EWCA Civ 1205
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION (ADMINISTRATIVE COURT)
Mr. Justice Goldring
CO/3/2007
Lord Justice Pill
Lord Justice Moore-Bick and
Lord Justice Richards
Case No: C1/2007/0564
Miss Galina Ward (instructed by Legal Services, Sutton Borough Council) for the appellant
Mr. Ian Wise and Mr. Azeem Suterwalla (instructed by Ormerods) for the respondent
Hearing dates: 7 th November 2007
Judgement
This is an appeal against an order of Goldring J. quashing the decision of the appellant, the Sutton London Borough Council (“the council”), not to provide transport to school for a child, D.
At the time of the decision in December 2006 D, then aged 11, was the subject of a statement of special educational needs maintained by the council as his local education authority under section 324 of the Education Act 1996 (“the Act”). The statement, which was made in the recognised standard form, had originally been made in March 1999 and had been amended three times since, most recently in April 2006. It recorded that D had been diagnosed as having Asperger's Syndrome and that as a result he had special educational needs in order to improve his communication skills, to develop his ability to make inferences in language, to develop his attention and listening skills and to nurture his social skills with other children and adults and in social situations generally.
In accordance with his parents' wishes, at the time of the most recent amendment to the statement D was attending a mainstream primary school, WPS, maintained by a neighbouring local authority. His parents were pleased with his progress and wanted him to remain there. The council thought that D's needs could be met at other mainstream schools nearer his home, but was willing to specify WPS in Part 4 of his statement on the basis that his parents would bear responsibility for his transport to and from school. It was common ground that he could not be expected to walk to and from WPS, even if accompanied by an adult. Accordingly, the council added a paragraph to Part 4 of the statement so that it read as follows:
“PART 4: PLACEMENT
[WPS] …. .a mainstream primary school in Surrey LEA.
In accordance with paragraph 8:87 of the SEN Code of Practice, Sutton LEA has named [WPS] in this statement as it is the placement preferred by D's parents. However, as this school is further away from D's home than other mainstream schools that could also meet D's needs, Sutton LEA will not accept responsibility for the costs of transporting D to and from [WPS].”
The Code of Practice there referred to was that published by the Secretary of State pursuant to section 313 of the Act to give practical guidance to local education authorities when performing their functions under sections 323 and 324 of the Act. It is not legally binding, but authorities are obliged to have regard to it. Paragraph 8:87 of the Code provides as follows:
“The parents' preferred school might be further away from the child's home than another school that can meet the child's special educational needs. In such a case, it might be open to the LEA to name the nearer school if that would be compatible with the efficient use of the LEA's resources. It would also be open to the LEA to name the school preferred by the child's parents on condition that the parents agreed to meet all or part of the transport costs.”
The dispute in this case is whether the council was under a duty to provide transport for D to and from WPS because WPS was the only school specified in Part 4 of his statement. The judge held that it was ( [2007] EWHC 267 (Admin), [2007] ELR 377), largely because he construed paragraph 8:87 of the Code as requiring the local education authority to name a nearer alternative whenever it names the school preferred by the child's parents on condition that they meet the costs of transport. It is against that decision that the council appeals.
Each local education authority has a duty under section 321 of the Act to identify those of the children for whom it is responsible who have special educational needs. If an authority has reason to think that a child may have special educational needs, it is obliged by section 323 of the Act to make an assessment of that child's educational needs. An obligation to make and maintain a statement of special educational needs arises under section 324 in relation to any child who, as a result of such an assessment, is found to have such needs.
Subsections (2) to (4) of section 324 deal with the form and content of a statement of special educational needs and are of some importance in this case. They provide as follows:
“(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 subsection (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.”
Regulation 16 and schedule 2 of the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 provide a standard form for making statements of special educational needs. The form, which is not mandatory but is widely used by local education authorities, contains six sections, each of which provides guidance about what it should contain. The only part of the form that is relevant to this appeal is Part 4 which deals with the child's placement, but the guidance provided in relation to the completion of that part adds nothing to section 324(4) and for present purposes can be ignored.
By paragraphs 3 and 8 of schedule 27 to the Act the local education authority is required to give the parents of a child with special educational needs an opportunity to express a preference as to the school at which they wish him to be educated and, if the parents do so, it must specify the name of that school in the child's statement unless it is unsuitable for him or his attendance would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources.
The debate between D's parents and the council over where he should go to school and whether he should be provided with free transport if he attended WPS began long before the statement was amended in April 2006 and continued for many months thereafter. The council had been willing to specify WPS in Part 4 of D's statement on the basis that his parents took responsibility for his transport to and from school, but for a time the council provided transport for D as a concession without accepting any obligation to do so. Eventually, however, in a letter dated 7 th December 2006 it informed his parents that it would cease to do so on the grounds that, since there were mainstream primary schools nearer his home that were able to meet his needs, it would not be a reasonable use of public funds. Transport was in fact withdrawn from January 2007 and shortly afterwards D's parents began proceedings for judicial review which came before Goldring J. in February this year.
In the court below D's parents argued that since WPS was the only school named in Part 4 of the statement the council was obliged to provide him with transport to and from school and could not rely on the general reference to other mainstream schools in the area as grounds for refusing to do so. The judge quashed the council's decision. Having considered the statutory provisions and paragraph 8:87 of the Code of Conduct, he held that the council was entitled to take into account the need for the efficient use of resources by specifying other schools in addition to WPS and was also entitled to make it clear that placement at WPS was conditional on D's parents' agreeing to meet all or part of the costs of transport to and from that school. However, he held that it was not sufficient in those circumstances merely to refer in general terms to the availability of other schools without identifying them by name. He held that in order to enable the child's parents to make an informed choice whether to take a place for the child at their preferred school and to pay for transport or to accept a place at another school they had to know what the alternatives were. He held that in the present case WPS was the only school specified by the council and that it therefore had a duty to provide the necessary transport for D. The statement to the effect that other nearer mainstream schools could also meet D's needs was in his view insufficient and could not properly form the basis for its decision not to do so.
Miss Ward's primary submission in support of the appeal was that by...
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