R (TM) v London Borough of Hounslow
| Jurisdiction | England & Wales |
| Judge | Lord Justice Aikens,Lord Justice Patten,Lord Justice Thomas |
| Judgment Date | 11 June 2009 |
| Neutral Citation | [2009] EWCA Civ 859 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 June 2009 |
| Docket Number | Case No: C1/2008/2712 |
[2009] EWCA Civ 859
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
(His Honour Judge Inglis)
Before: Lord Justice Thomas
Lord Justice Aikens
and
Lord Justice Patten
Case No: C1/2008/2712
Mr D Squire (instructed by Messrs John Ford) appeared on behalf of the Appellant.
Mr P Oldham (instructed by London Borough of Hounslow) appeared on behalf of the Respondent.
Lord Justice Aikens:
This is an appeal against the decision and order of HHJ Inglis, sitting as a judge of the High Court in the Administrative Court, which were given on 16 October 2008. HHJ Inglis dismissed an appeal by TM, who is the mother of M, who is now 8 1/2, from the decision of the Special Educational Needs and Disability Tribunal (“the tribunal”). Permission to appeal to this court was given by Sedley LJ. The respondent is the London Borough of Hounslow (“the authority”). The Tribunal did not take part in the appeal, nor had it been involved in the hearing before HHJ Inglis.
The Facts
The case concerns the educational needs of M. He has a diagnosis of Autistic Spectrum Disorder (“ASD”). He has a severe level of disability reflected in communication, social skills and behaviour. One behavioural problem is that he has a tendency to injure himself, particularly by banging his head against the wall. M has been following an Applied Behavioural Analysis (“ABA”) programme, and he has been educated at home since January 2006. The programme is intensive and is intended to prepare a child with autism for integration into a school. At first TM funded the programme. However, from May 2006 to May 2007 the local educational authority (“LEA”) funded it. Thereafter the LEA issued a Statement of Special Educational Needs, (“a statement”) pursuant to section 323 and 324 of the Education Act 1996 (“the Act”) on 13 December 2006. An amended Statement (“the section 324 statement”) was issued on 18 May 2007.
When the LEA had prepared a draft section 324 statement, it had identified Lindon Bennet School, which is special school, in part IV of that statement which deals with the question of educational placement. Part III of the statement (which deals with special educational provision) had referred to a “schools based” programme, but made no mention of the continuation of the ABA programme. TM made representation to the LEA, as was her right under paragraph 4 of Schedule 27 of the Act, because she wished M to carry on with the ABA programme at home rather than attend a school. However, in the final version of the statement made in December 2006 and in the amended version of May 2007, Parts III and IV of the statement continued to contain the provisions I have mentioned.
On 27 July 2007 TM appealed against this section 324 statement to the tribunal pursuant to section 326 of the Act. The appeal was against the educational provision in the statement that TM should be educated at the school specified, rather than continue to follow a home-based ABA programme. TM sought other amendments to the statement, which are not now relevant.
The decision of the Special Educational Needs and Disability Tribunal
The appeal was heard by the Tribunal on 7 December 2007. It handed down its decision on 31 December 2007. It accepted that there should be some amendments to the statement, but we are not concerned with those. With regard to the educational provision for the condition of autism from which M suffers, the tribunal set out its ruling at paragraph E.
This records, first, that TM wished M to continue with the home-based ABA programme, but that the LEA considered that he should now be attending school. Secondly, the paragraph set out section 319 of the Act, which I shall set out in a moment. Thirdly, the paragraph recorded the Tribunal's interpretation of section 319, which was that “it is only in circumstances where all or part of a child's special educational needs cannot be met in the school that it is appropriate for the provision to be made elsewhere than at a school.”
Fourthly, the tribunal made findings of fact about Lindon Bennet School and concluded that it had specialist provision for pupils diagnosed with ASD and that it could deal satisfactorily with M's behavioural difficulties. The Tribunal's conclusion was that M's needs could be met at the Lindon Bennet School, so that “there was no basis for him to be able to continue his ABA programme at home.”
TM appealed that decision to the Administrative Court, under section 11 of the Tribunals and Enquiries Act 1992 on a point of law, viz. the correct construction of section 319 of the Act. HHJ Inglis examined the statute and a number of cases. He concluded, at paragraph 27 of his judgment that “as a matter of the application of section 319, in my judgment the Tribunal were right to concentrate on whether the school could meet M's statement of needs and, having found that it could, treated the effect of section 319 as requiring the school to be named in Part IV.”
A second point was argued before the judge, but that is not pursued in this court so I need say no more about it.
The Statutory Provisions
The relevant provisions of the Act are the following:
“ 9. Pupils to be educated in accordance with parents' wishes
In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State, local education authorities and the funding authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.
14 Functions in respect of provision of primary and secondary schools
(1) A local education authority shall secure that sufficient schools for providing —
(a) primary education, and
(b) education that is secondary education by virtue of section 2(2)(a), are available for their area.
(2) The schools available for an area shall not be regarded as sufficient for the purposes of subsection (1) unless they are sufficient in number, character and equipment to provide for all pupils the opportunity of appropriate education.
(3) In subsection (2) “appropriate education” means education which offers such variety of instruction and training as may be desirable in view of—
(a) the pupils' different ages, abilities and aptitudes, and (b) the different periods for which they may be expected to remain at school, including practical instruction and training appropriate to their different needs.
(4) A local education authority is not by virtue of subsection (1)(a) under any duty in respect of children under compulsory school age.
(5) A local education authority may secure the provision for their area of full-time education suitable to the requirements of persons over compulsory school age who have not attained the age of 19, including provision for persons from other areas.
(6) In exercising their functions under this section, a local education authority shall in particular have regard to —
(a) the need for securing that primary and secondary education are provided in separate schools;
(b) the need for securing that special educational provision is made for pupils who have special educational needs; and
(c) the expediency of securing the provision of boarding accommodation (in boarding schools or otherwise) for pupils for whom education as boarders is considered by their parents and the authority to be desirable.
(7) The duty imposed by subsection (6)(a) does not apply in relation to middle schools or special schools.
316 Duty to educate children with special educational needs in mainstream schools
(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) a city academy.
316A Education otherwise than in mainstream schools
(1) Section 316 does not prevent a child from being educated in—
(a) an independent school which is not a mainstream school, or
(b) a school approved under section 342,
if the cost is met otherwise than by a local education authority.
(2) Section 316(2) does not require a child to be educated in a mainstream school during any period in which—
(a) he is admitted to a special school for the purposes of an assessment under section 323 of his educational needs and his admission to that school is with the agreement of—
(i) the local education authority,
(ii) the head teacher of the school or, if the school is in Wales, its governing body,
(iii) his parent, and
(iv) any person whose advice is to be sought in accordance with regulations made under paragraph 2 of Schedule 26;
(b) he remains admitted to a special school, in prescribed circumstances, following an assessment under section 323 at that school;
(c) he is admitted to a special school, following a change in his circumstances, with the agreement of—
(i) the local education authority,
...
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