R v East Sussex County Council, ex parte Tandy

JurisdictionEngland & Wales
CourtCourt of Appeal (Civil Division)
JudgeLORD JUSTICE STAUGHTON,LORD JUSTICE WARD,LORD JUSTICE MUMMERY
Judgment Date31 July 1997
Judgment citation (vLex)[1997] EWCA Civ J0731-26
Date31 July 1997
Docket NumberQBCOF 97/0714/D

[1997] EWCA Civ J0731-26

IN THE SUPREME COURT OF JUDICATURE

IN THE COURT OF APPEAL (CIVIL DIVISION)

APPLICATION FOR JUDICIAL REVIEW

Royal Courts of Justice

Strand

London WC2

Before:

Lord Justice Staughton

Lord Justice Ward

Lord Justice Mummery

QBCOF 97/0714/D

Regina
and
East Sussex County Council
Respondent
Ex Parte Beth Tandy
Appellant

MR R SINGH (Instructed by Sharpe Pritchard, London WC1V 6HG) appeared on behalf of the Appellant

MR T KERR (Instructed by Bates Wells & Braithwaite, London EC1M 6HA) appeared on behalf of the Respondent

1

Thursday 31st July, 1997

LORD JUSTICE STAUGHTON
2

Beth Tandy was born on 8th February 1982. So she is 15, and was 14 and a half when the decisions now questioned were taken. From 1989, when she was seven, she has suffered from myalgic encephalomyelitis, generally abbreviated as M.E.; as it happens she is also mildly dyslexic, but that is not a critical factor. For much of her childhood she has had difficulty in attending school, or in deriving any benefit if she does attend. The complaint that she makes relates to two decisions of the East Sussex County Council, on 10th September and 28th November 1996. The first decision was that she should receive only three hours a week of home tuition, instead of five hours a week as in the past; the second was the Council's refusal to reconsider or change the first decision. In effect it is the first decision which is criticized.

3

Before I embark on the facts and the evidence, which necessarily have to be considered at some length, it may be helpful to identify the issues. The first is whether, in considering what education is suitable for a child, the Education Authority are entitled to take into account their resources, or lack of them. As I read the judgment of Keene J., who granted Beth's application for judicial review, his answer was that cost might be taken into account, but that decisions as to what is suitable should not be governed by the amount of money which the Education Authority has in its budget. Mr Kerr, who appeared before us to support the judgment of Keene J, in effect followed that line of argument. Mr Pleming, for the Council, maintained that they were entitled to have regard to the resources available in setting a policy, but must also consider the circumstances of the individual child and what is suitable for her education. I have to acknowledge that I may not have stated the submissions of counsel with either completeness or accuracy; the argument was lively, and as might be expected the attack shifted on occasion to a different sector of the front. Judges, unfortunately, or at any rate appellate judges, are not allowed that luxury.

4

That issue is a question of law. There are also two questions of fact. The first is whether the Council's decision was based wholly, or almost wholly, on resource considerations; or whether they did in fact consider that three hours of home tuition a week was suitable education for Beth. The judge's conclusion was:

In so far as the Respondent decided that that amounted to "suitable education" under s. 298, that decision not only took into account the reduction in the Respondent's home tuition budget but was powerfully influenced by it….

5

Mr Pleming disputes that conclusion; Mr Kerr seeks to uphold it. Thirdly, Mr Kerr submits and the judge accepted that the Council's decision was irrational. That again is challenged by Mr Pleming.

6

One topic which was disputed before the judge is no longer in issue in this court. That is whether the decision as to what is suitable education is, ultimately, for the court, or whether it is for the Education Authority subject always to the remedies of judicial review. The judge held that the decision was for the education authority, and that is not now disputed.

7

(1) Taking account of resources

8

Section 298(1) of the Education Act 1993 , which is now replaced by section 19 of the Education Act 1996, provides:

(1) Each local education authority shall make arrangements for the provision of suitable full time or part time education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them.

9

Subsection (7) is also important:

(7) In this section "suitable education", in relation to a child or young person, means efficient education suitable to his age, ability and aptitude and to any special educational needs he may have.

10

The 1993 Act was the first occasion when a duty of that nature was laid upon education authorities; previously there had only been a power to make provision of the kind referred to in the section.

11

At first sight the answer appears to be simple enough: the Education Authority are obliged to make arrangements for the provision of suitable education, and what is suitable must be determined in the light of the factors listed in subsection (7). Resources, or the lack of them, would appear to be irrelevant.

12

A lawyer would find that impression reinforced on discovering that, elsewhere in the Act, there is specific mention of resources. Thus section 160 requires that educating a child with special educational needs in a school which is not a special school must be compatible with —

the efficient use of resources.

13

Section 160(4) contains similar provision for the efficient use of resources. And so does paragraph 3 of Schedule 10 (choice of school). Even in those cases it is not said that absence of resources can be taken into account, merely that efficient use of them is relevant.

14

I must now turn to a recent and important decision of the House of Lords, in R. v. Gloucester County Council, ex parte Barry (1997) 2 WLR 459. That case was concerned with subsection 2(1) of the Chronically Sick and Disabled Persons Act 1970, as amended. I do not set out the whole of the subsection, which is of inordinate length. It operates when a local authority are satisfied

that it is necessary in order to meet the needs of [a] person for that authority to make arrangements for all or any of the following matters….

15

There is then a list which includes provision of practical assistance in the home, wireless, television, library, lectures, games, outings, travelling, works adapting the home, provision of additional facilities, holidays, meals and a telephone. If that condition is satisfied

it shall be the duty of that authority to make those arrangements….

16

There is nothing in the subsection about resources. But the House of Lords held, by a majority, that resources could be taken into account.

17

Mr Kerr sought to distinguish that decision. His first and most obvious point is that it was concerned with a different section of a different Act. That may mean that it is not binding upon us; but we certainly ought to follow it if the reasoning applies equally to the Education Act. I do not think that the reasoning is equally applicable. Lord Clyde, who delivered the main speech of the majority, said (at p.475):

the range of the facilities which are listed as being the subject of possible arrangements, "the service list", is so extensive as to make it unlikely that Parliament intended that they might all be provided regardless of the cost involved. It is not necessary to hold that cost and resources are always an element in determining the necessity. It is enough for the purposes of the present case to recognize that they may be a proper consideration.

18

Lord Clyde also observed that the words "necessary" and "needs"

are both relative expressions, admitting in each case a considerable range of meaning. They are not defined in the Act and reference to dictionary definitions does not seem to me to advance the construction of the subsection.

19

Those passages being, as it seems to me, the main basis of the reasoning of the House of Lords, in my judgment we are not only entitled but bound to approach section 298 of the Education Act without any assumption that it is covered by the Gloucestershire decision. There is no catalogue of facilities in this case comparable to that in the Chronically Sick and Disabled Persons Act; the expression "suitable education" is defined (although it contains a reference to needs), unlike "necessary" and "needs" in that Act. Most important of all, the Education Act in other sections and a Schedule expressly tell one, as I have said, when resources are relevant. That seems to me an important distinction from the Gloucestershire case.

20

On a fresh approach to the problem, it seems to me inconceivable that Parliament intended to provide that the duty in the Education Act need not be performed if the Education Authority, in considering its budget, found that it did not have the resources to fulfil it. One example of a factor which might render resources insufficient occurs in this case: the East Sussex County Council had overspent to the extent of £1 million in the previous year on an item in its budget, and that sum (together with a further £0.85m) had to be recouped in 1996/1997. Was that a ground why the duty imposed by Parliament need not be fulfilled? What was the point in departing from the previous regime, under which education authorities had a power but not a duty to make provision such as is described in the section, if lack of resources would be an excuse for non-performance? In that case the new enactment would be mere window-dressing. The expression "can't pay, won't pay" has featured in the recent history of local government; it is not a lawful excuse for local authorities — or for anyone else.

21

Like the judge, I can readily accept that in some circumstances cost may be...

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