R Mh v The Special Educational Needs and Disability Tribunal and Another

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
Judgment Date20 February 2004
Neutral Citation[2004] EWHC 462 (Admin)
Docket NumberCO/6786/2003
Date20 February 2004

[2004] EWHC 462 (Admin)




Royal Courts of Justice


London WC2


Mr Justice Pitchford


The Queen On The Application Of Mh
(1) The Special Educational Needs And Disability Tribunal
(2) The London Borough Of Hounslow

MR D WOLFE (instructed by ALEXANDER HARRIS) appeared on behalf of the APPELLANT

MISS J RICHARDS (instructed by THE TREASURY SOLICITOR) appeared on behalf of the FIRST RESPONDENT


Friday, 20th February 2004


This is a statutory appeal from a decision of the Special Educational Needs and Disability Tribunal of 20th November 2003. I shall call the claimant's son D, having made an order under section 39 of the Children and Young Persons Act 1933 protecting his identity. D is aged 12. He has emotional and behavioural difficulties and is the subject of a statement of special educational needs. D's mother expressed a preference under schedule 27, paragraph 3, Education Act 1996, that he be educated at the 'C' community school, a mainstream school within the meaning of the Act. Exercising its judgment under schedule 27, paragraph 3, sub-paragraph 3, the LEA specified not the parents preferred choice of school, but the 'S' special school.


The claimant appealed to the Special Educational Needs and Disability Tribunal. The Tribunal upheld the LEA's decision to name S special school. It appears to have done so, because it regarded D's placement at the C school as incompatible with the efficient education of other pupils there. There is, however, some doubt as to the Tribunal's reasoning and its approach to its conclusion, hence the two grounds for this appeal which I extract from the appellant's grounds of appeal and skeleton argument: (1) The Tribunal failed to give effect to the (qualified) duty to name a mainstream school arising from section 316 of the Education Act 1996; and (2) The Tribunal failed to give lawfully sufficient reasons for its decision.


The respondents concede that the appeal must be allowed, the decision quashed and the matter remitted to a differently constituted tribunal for rehearing on ground 2. What is in doubt, however, is what should be the approach of the Tribunal at the rehearing. This involves a consideration of ground 1. That approach must, it is agreed, be dictated by an accurate interpretation of schedule 27, paragraph 3, sub-paragraph 3, and sections 316 and 316A of the 1996 Act as they interact together. Sections 316 and 316A were inserted by the Special Educational Needs and Disability Act 2001, by which the former section 316 was repealed. I am told that there has, until now, been no judicial interpretation of the interaction of the new provisions.


The dispute encompasses a narrow but practically important aspect of appeals to the Tribunal under section 326. The issues for the Tribunal on the rehearing in short will be whether, (1), D should be educated at a special or mainstream school, and (2), in either event whether the named or some other school should be specified in the statement pursuant to section 324(4)(b).


Although the principal ground of appeal has been conceded, I have agreed, after hearing argument, to give a judgment upon the Tribunal's approach to section 316 of the Act. That course was resisted by the second respondent, the LEA, but accepted by the first respondent, SENDIST. I am satisfied that there are proper grounds for proceeding as I have been invited by the appellant and the first respondent.


It is necessary, first, to examine the statutory provisions and the guidance to them published under section 316A, subsections 8 and 9 of the Act, as amended. Schedule 27, paragraph 3(1) in its material parts reads as follows:

"Every local education authority shall make arrangements for enabling a parent… 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."


Sub-paragraph 3 reads:

"Where a local education authority make a statement in a case where the parent of the child concerned has expressed a preference in pursuance of such arrangements as to the school at which he wishes education to be provided for his child, they shall specify the name of that school in the statement unless -

(a) the school is unsuitable to the child's age, ability or aptitude or to his special educational needs, or

(b) the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources."


Section 316 provides:

"(1) This section applies to a child with special educational needs who should be educated in a school.

(2) If no statement is maintained under section 324 for the child, he must be educated in a mainstream school.

(3) If a statement is maintained under section 324 for the child, he must be educated in a mainstream school unless that is incompatible with -

(a) the wishes of his parent, or

(b) the provision of efficient education for other children.

(4) In this section and section 316A 'mainstream school' means any school other than -

(a) a special school, or

(b) an independent school which is not -

(i) a city technology college,

(ii) a city college for the technology of the arts, or

(iii)[an Academy].


There follows, in section 316A, two apparently confusing if not conflicting subsections. Subsection (3) provides:

"Section 316 does not affect the operation of -

(a) section 348, or

(b) paragraph 3 of Schedule 27."


Subsection (4) provides:

"If a local education authority decide -

(a) to make a statement for a child under section 324, but

(b) not to name in the statement the school for which a parent has expressed a preference under paragraph 3 of Schedule 27,

they shall, in making the statement, comply with section 316(3).


On the one hand subsection (3) appears to exclude section 316 from the operation of paragraph 3, schedule 27. On the other, subsection 4 appears to require the LEA to comply with section 316(3) when making its statement; accordingly, when deciding to describe the type of school or the naming of the school in the statement.


In applying section 316(3) an LEA may, pursuant to section 316A(5), in relation to their mainstream schools taken as a whole, rely on the exception in section 316(3)(b), "only if it shows that there are no reasonable steps that it or another authority in relation to the school could take to prevent the incompatibility", between the attendance of the child and the provision of efficient education for other children.


Section 316A(6) applies the same criterion to a judgment in respect of an individual school. Several parts of the statutory guidance are relevant to a consideration of the government's policy objectives. In its introduction the guidance informs as follows:

"Introduction and Context

"1. In 1993 the general principle that children with special educational needs should —where this is what parents wanted —normally be educated at mainstream schools was enshrined into law [The Education Act 1993, s 160 which was subsequently consolidated into the Education Act 1996, s 316]. However, pupils and their families had to satisfy a series of conditions —the mainstream's ability to ensure the child received the educational provision his or her learning difficulty called for while also ensuring the efficient education of others with whom she or he would be educated and the efficient use of resources —before they secured access to mainstream education. These conditions were open to abuse and children who would have benefited from inclusion were denied access to mainstream education.

2. Like most countries in the world the United Kingdom supports the Salamanca Statement. The statement drawn up by a UNESCO [United Nations Education, Scientific and Cultural Organisation] world conference, held in Salamanca (Spain in 1994) called upon all governments to 'adopt as a matter of law or policy the principle of inclusive education, enrolling all children in regular schools, unless there are compelling reasons for doing otherwise'.

3. In 1997 the new government published 'Excellence For All Children —Meeting Special Educational Needs'. This set out a strategy to improve standards for pupils with special educational needs. A clear commitment to promoting greater inclusion was signalled, as was the need to develop the role of special schools. In doing this the significant educational, social and moral benefits of inclusion were highlighted. Following substantial consultation 'Meeting Special Educational Needs —A Programme of Action' was published in 1998. This undertook to review the statutory framework for inclusion in conjunction with the Disability Rights Task Force. The Task Force's report 'From Exclusion to Inclusion' —published in 1999 —recommended 'a strengthened right for parents of children with statements of special educational needs [As provided for by the Education Act 1996, s 324. The SEN Code of Practice provides detailed information and advice on statements of special educational need] to a place at a mainstream school'.

4. The Special Educational Needs and Disability Act 2001 delivers a strengthened right to a mainstream education for children with special educational needs. The Act has amended the Education Act 1996 and transformed the statutory framework for inclusion into a positive endorsement of inclusion. The Act seeks to enable more pupils who have special educational needs to be included...

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1 cases
  • GK v Essex County Council (SEN)
    • United Kingdom
    • Upper Tribunal (Administrative Appeals Chamber)
    • 29 August 2017
    ...with s.316(3)(b) in relation to school U, it failed to do so in relation to its schools generally, as s.316A(5) and R(MH) v SENDIST [2004] EWHC 462 (Admin) require. FtT found that the appellant maintained a preference for mainstream education. Mr M’s remarks had not withdrawn that preferenc......

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