R (S (Caroline Emily) (A Child)) v Oxfordshire County Council; R (Southern, a Minor) v Oxfordshire County Council
| Jurisdiction | England & Wales |
| Judge | DEPUTY JUDGE |
| Judgment Date | 23 January 2004 |
| Neutral Citation | [2004] EWHC 133 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/3187/2003 |
| Date | 23 January 2004 |
[2004] EWHC 133 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand,
London, WC2A 2LL
Andrew Nicol QC sitting as a Deputy Judge of the High Court
Case No: CO/3187/2003
Nicholas Bowen (instructed by Teacher Stern and Selby) for the Claimant
Jonathan Swift (instructed by Nicholas Graham, Legal Services, Oxford County Council) for the Defendant
This application for judicial review is brought on behalf of Caroline Southern who is now aged 14. She has an exceptional intellect. Her father believes that she would best be educated at Peterborough High School which is a private school and which is the school she now attends. The family's local education authority ('LEA') is Oxfordshire County Council, the Defendant in these proceedings. Caroline's father asked the Defendant to undertake an assessment to determine whether she has special educational needs. The Defendant refused. Caroline's father appealed against that refusal to the Special Educational Needs and Disability Tribunal ('the Tribunal') under s.329 of Education Act 1996. On 14 th October 2003, the Tribunal dismissed the appeal. It held that Caroline did have some emotional and social difficulties, poor organisation and time management which were special educational needs. However, the Tribunal considered that these needs had already been identified and a statutory assessment was unnecessary. The Tribunals and Inquiries Act 1992 s.11 confers a right of appeal against the Tribunal's decision on a point of law and I have been told that Caroline's father intends to apply for permission to bring such an appeal out of time. That was not the matter before me.
At about the same time as Caroline's representatives asked the Defendant to conduct a statutory assessment of her needs, they also asked the Defendant to make a grant towards the costs of her fees and expenses at Peterborough High School. On 3 rd June 2003, the Defendant refused. Caroline seeks to judicially review that decision.
Her claim raises the following issues:
a. Did the Defendant have any power to make a grant?
b. Assuming the Defendant did have such a power, did it operate a policy that grants would not be given unless there was a formal assessment of the child concerned and a statutory statement of her special educational needs, and, if so, did the Defendant act unlawfully by adhering rigidly to this policy and so improperly fetter its discretion?
c. Can the Defendant's decision be impugned on the grounds that it has misinterpreted the meaning of 'learning difficulty' in the statutory definition of special educational needs? This involves two sub-questions:
i. Is it open to Caroline to litigate this question in the present proceedings?
ii. If it is, does the meaning of 'learning difficulty' embrace exceptional intellectual ability as a matter of ordinary construction. Alternatively, would the contrary construction violate Caroline's rights under the European Convention on Human Rights Protocol 1 Article 2 either alone or in conjunction with Article 14 and, in the words of s.3 of Human Rights Act 1998, is it 'possible' to construe the statutory 'learning difficulty' as including a person with exceptional intellectual ability?
The facts
Caroline was born in 1989. As I have said, she is highly intelligent. While she was still at primary school and with a chronological age of 10 years 7 months, Liora Myers, an Educational Psychologist with the Defendant's educational services, assessed her as having a reading age of 17 years. Her verbal IQ was rated as 147, her performance IQ was 123 giving a full scale IQ of 138 which is in the exceptionally high range of ability.
Caroline's parents parted when she was only 5 years old. She has since been brought up by her father. She experienced behavioural and emotional difficulties which led to her being the subject of a Statement of Special Educational Needs in September 199This continued until September 1998, by which time the Defendant considered that a Statement was no longer necessary.
Caroline spent most of her primary school years at Sonning Common, a school in the public sector that was maintained by the Defendant. Ms Myers' report was prepared in Caroline's last year. As well as recording her exceptionally high intellectual ability, Ms Myers noted that Caroline was unhappy at school:
'She does need to be stretched academically. However, her needs are not just intellectual and academic, they are also social and emotional.'
Caroline's father moved her to another maintained school for her last two terms of primary school. In September 1999 she began her secondary schooling at a maintained Berkshire school, Reading Girls' School, where she was placed in the grammar school stream. In March 2002, the head teacher recommended that Caroline be given a boarding school place 'as this would provide the necessary structure and support that she needs to develop and mature both emotionally and academically.' For some years Caroline had been seeing Dr. Mark Allsopp, a consultant child and adolescent psychiatrist who confirmed her extremely high intellectual ability and who also thought that she was underachieving and that she would benefit from small group teaching at a private school. On 25 th June 2002 Martin Pounce, Schools Officer with the Defendant, wrote to Dr. Southern and discussed the possible options open to Caroline. These included moving her to an Oxfordshire secondary school. He said:
'All our schools are fully comprehensive and I would therefore expect them all to be able to organise their curriculum to meet the needs of a pupil with Caroline's abilities and difficulties. We have advisers who are able to support schools when they have pupils of very high ability and our schools are expected to use all the advice and strategies at their disposal to differentiate and challenge those pupils.'
Mr. Pounce also said:
'I understand that you are considering the option of a private school. You understand, I am sure, that the LEA is unable to provide any funding for private education in Caroline's circumstances.'
Dr Southern had enlisted the support of his local Member of Parliament and on 26 th June, Roy Smith, the Acting Chief Education Officer of the Defendant, wrote to him expressing the Defendant's confidence that its comprehensive schools were capable of meeting the needs of pupils of all abilities. He said:
'For the same reason the LEA is unable to offer any assistance towards the payment of private school fees should Dr. Southern decide to move his daughter from Reading Girls' School.'
Mr Smith wrote to the MP again on 24 th July 2002 and said:
'Notwithstanding the assertion made in both letters that Caroline would benefit from a boarding place, it is unlikely that Caroline meets the criteria for receiving a statement of special educational needs. In this case the LEA will be in a position to do no other than to offer Dr Southern a place for Caroline at her catchment area school, Chiltern Edge.'
In August 2002 Caroline was offered a place at Peterborough High School, a private, fee-paying school. Dr. Allsopp wrote again to Mr Smith urging that the Defendant assist in identifying and accessing an appropriate educational placement for Caroline. He said that if the only means to achieve this was through the initiation of a multi-professional assessment of Special Educational Needs then it would seem important that this should be done as speedily as possible. In October 2002 the Acting Head Teacher of Reading Girls' School also told the Defendant that she thought Caroline's best interests would be served by a boarding place at an academically challenging school.
Caroline started Peterborough High School as a weekly boarder in September 2002. She was accelerated to Year 10 and seemed to progress well after initial difficulties, though some problems remained. On 5 th March 2003 Dr. Allsopp said that he thought that her superior intellectual ability would in itself give rise to special educational needs, but that this was complicated by problems relating to her social and emotional development that originated in Caroline's complex parenting relationships. He thought that a mainstream school whether a comprehensive or grammar school would find difficulty in meeting her needs as her experience at Reading Girls' School had tended to confirm.
Solicitors on behalf of Caroline and her father wrote to the Defendant on 17 th March 2003. They enclosed a number of reports including ones from Dr Allsopp, Reading Girls' School and Peterborough High School. The solicitors' letter claimed that the Defendant had either refused or failed to take a decision as to whether to assess Caroline's Special Educational Needs. They said that Caroline needed to be placed in a highly specialist environment and funding of the Peterborough High School fees:
'is proving very difficult for the family as Dr Southern is on extremely limited means and does not have the funds to meet even his small proportion of the total school fees.'
The letter noted that the family had asked for assistance towards the part of the fees currently paid by Dr Southern or the whole of the fees and asked the Defendant to agree to fund Caroline's continuing placement at Peterborough High School.
On 1 st April 2003, John Mitchell, Education Officer and Assistant to the Director of Learning and Culture replied. He said:
'This Local Education Authority is not in a position...
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