R (N) v North Tyneside Borough Council

Lord Justice Elias:

The appellant in this case is a child, aged 11, acting by her father and litigation friend. She has special educational needs arising from Down's Syndrome and autistic spectrum disorder. She is the subject of a statement of special educational needs made under the Education Act 1996. The version in place when these proceedings were commenced was dated 2 September 2008. There is now a later version made on 26 October 2009. This statutory statement, amongst other matters, identifies her educational needs and the provision to be made with respect to those needs. Since the terms of the statement could not be agreed, they were ordered by the Special Educational Needs and Disability Tribunal, now the Health, Education and Social Care Chamber of the First-Tier Tribunal. Amongst a whole series of requirements which were identified in that statement, there are certain provisions made in respect of speech and language therapy. One of the provisions was as follows:

“Over a period of 1 month [N] will receive a minimum of 1 hour's speech and language therapy intervention. This will include some time directly working one-to-one with [N] and some in-class time to model ways of working to reinforce her communication skill… In addition [N] will continue to be included in blocks of group therapy sessions for six weeks at a time subject, as previously, to continuing review should a change in clinical need be identified this will take immediate effect.”(emphasis added).

It seems that in fact there should be a full stop after “review”.

As the provision makes clear, the obligation to provide group therapy reiterated the duty imposed by the previous statement. The appellant's father objected that the LEA had failed to comply with its obligation to provide the group therapy session. As I understand it, it is conceded that at least for some time in 2007 the applicant was not provided with group therapy sessions at all. The authority has contended that it was not obliged to provide them. The authority submitted that there were some 16 arrangements which have been made with respect to the provision of speech and language therapy, that the overall objective identified in the statement was being achieved, and that it would not be counter-productive and contrary to the interests of the child to provide group therapy. In particular, emphasis was placed on the italicised words, which it was suggested gave the LEA discretion to refuse to provide the sessions if they thought they would not be in the child's interest.

The applicant contended that this constituted a fundamental failure by the authority to comply with its statutory duty under section 324(5) of the Education Act 1996. Where there is a failure to comply with that obligation, the appropriate legal remedy is by way of judicial review. That is what the appellant has done here. She brought a claim before HHJ Mackie QC, who was sitting as a deputy High Court judge in the Administrative Court. She sought a declaration that the authority was in breach of its statutory obligations under section 324(5) and an order requiring them to make the appropriate provisions. Section 324(5) of the Education Act 1996 provides:

“(5)(a) unless the child's parent has made suitable arrangements, the authority—

(i) shall arrange that the special educational provision specified in the statement is made for the child, and

(ii) may arrange that any non-educational provision specified in the statement is made for him in such manner as they consider appropriate…”

We are concerned here with the special educational provision in (i), which is cast in mandatory rather than discretionary terms.

The LEA continued to assert before the judge that they were not obliged to provide the group sessions, having determined that it was not in the child's interests to do so.

The claimant contended that the approach adopted by the LEA was inconsistent with two well-established principles concerning the application of this subsection. The first is that the duty to arrange for the specified provision is a mandatory one. There can be no excuse if there are financial or other practical difficulties in giving effect to the terms of the statement: see the decision of Turner J in R v LB Harrow ex parte M [1997] ELR 62.

The second principle is that the statement should not identify the educational provisions in terms which confer upon the LEA the power to alter the provision unilaterally without any need formally to amend the statement, even after consultation. The statement should be cast in terms which are sufficiently specific to require the LEA to amend it if they think that the educational provision should be changed. If this were not so, the individual would be deprived of his or her right of appeal under the legislation: see the observations of Bell J in E v Rotherham Metropolitan Borough Council [2001] EWHC Admin 432 at para 34.

It was submitted that the council has in effect frustrated both principles: the first by failing to provide the sessions, for...