R v East Sussex County Council, ex parte Tandy
| Jurisdiction | England & Wales |
| Judge | LORD BROWNE-WILKINSON,LORD SLYNN OF HADLEY,LORD NOLAN,LORD STEYN,LORD HUTTON |
| Judgment Date | 20 May 1998 |
| Judgment citation (vLex) | [1998] UKHL J0520-3 |
| Date | 20 May 1998 |
| Court | House of Lords |
[1998] UKHL J0520-3
HOUSE OF LORDS
Lord Browne-Wilkinson
Lord Slynn of Hadley
Lord Nolan
Lord Steyn
Lord Hutton
My Lords,
At all material times the East Sussex County Council, as the local education authority ("L.E.A."), was subject to a statutory duty under section 298 of the Education Act 1993 (now re-enacted in section 19 of the Education Act 1996) to provide education for those children in its area who by reason of illness would not otherwise have received it. So far as relevant, section 298 provided as follows:
"(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.
…
"(7) In this section 'suitable education', in relation to the child or young person, means efficient education suitable to his age, ability and aptitude and to any special educational needs he may have."
The appellant, Beth Tandy, was born on 8 February 1982 and was a child of compulsory school age until 8 February 1998. She has suffered from myalgic encephalomyelitis ("M.E.") since she was seven in consequence of which she has found it very difficult and at times impossible to attend school. From May 1992 onwards, the L.E.A. provided five hours per week home tuition for her. Originally this home tuition was provided pursuant to a statement of special needs: Beth was mildly dyslexic. However that statement of special needs was withdrawn in July 1995 and from then onwards home tuition has been continued under section 298. Beth's progress has been kept under constant review and every effort made to reintegrate her into her school environment. But her medical condition meant that she only attended school on a handful of occasions. Her prime source of education was home tuition.
In July 1996 Dr. Bacon, the manager of pupil services for the L.E.A. wrote to Beth's parents telling them of a general review of the L.E.A.'s home tuition services and warning them that "the level of tuition may reduce from the previous standard of five hours per week as part of a package of measures which aims to facilitate a pupil's early return to full-time education." There was a report in the press that the L.E.A.'s home tuition budget had been cut from £100,000 a year to £25,000 a year but in July 1996 Beth's parents were told–as will appear rather surprisingly–that the L.E.A. had not yet concluded its policy on home tuition. At that time Beth's ability to attend school had not improved. At a meeting held on 10 September 1996 the L.E.A.'s case work officer told Beth's parents that the maximum number of hours of home tuition would be cut from five hours per week to three hours per week, a decision which, the case worker said, was dictated purely by financial considerations and not by Beth's illness or educational needs.
Beth's parents protested vigorously to the L.E.A. against this cut in the hours of home tuition. On 25 October 1996 the chairman of the education committee, wrote to them as follows:
"I understand your concern that your daughter Beth should receive sufficient education to meet her needs. The county council had to make some very difficult decisions last March regarding the level of budget for education and I regret that it was considered necessary to reduce expenditure on home tuition. It is not considered that the county council is failing in its statutory duty to provide education other than at school for pupils such as Beth. It is important that all pupils who require this service do receive some tuition and the reduction from five to three hours per week has been necessary to ensure equal access to this provision for those pupils who need it."
It was in those circumstances that these proceedings for judicial review were launched on 30 November 1996 attacking the L.E.A.'s decision to reduce the number of hours of home tuition provided for Beth from five to three hours per week. The decision has been attacked on three separate grounds: (1) that the local authority in reaching its decision to cut the number of hours took into account an irrelevant consideration, namely, its financial resources; (2) that the decision was reached in pursuance of an improper purpose, viz., to save money; (3) that the decision was irrational. For reasons which will appear, it is only necessary for me to consider the first of those grounds. But for that purpose it is necessary to consider the reasons for the decision of the L.E.A. to reduce the number of hours of home tuition provided for Beth.
Like all other local authorities, the respondent county council is in an unenviable position. It is now prevented from obtaining either from central government or from local taxation the financial resources necessary to discharge its functions as it would like to do. In a period when the aim of central government, of whatever political colour, has been to achieve a reduction in public spending, local authorities have not been relieved of statutory duties imposed upon them by Parliament in times past when different attitudes prevailed. Thus, in preparing its budget the respondent county council had to find ways of saving expenditure.
The evidence discloses how such considerations bore on the decision challenged in the present case. The respondent council was to set its budget for the year 1996/97 at its meeting on 20 February 1996. One of the major items in that budget was the requirement of the education committee which committee fixed its budget on 5 January 1996. The education committee faced a requirement for an additional expenditure of £8.499 million on account of pay and price increases and other commitments. Under the system whereby central government seeks to control local authority expenditure, central government's calculation of the allowable expenditure on education ("the S.S.A.") provided for an increase of only £7.264 million. On the assumption that the whole of this S.S.A. increase of £7.264 was allotted to the education committee by the council, the education committee still had to find savings of £1.235 million (i.e. £8.499 million less £7.264 million). Further there had been an overspend of £1.85 million in the year 1995/96 which the education committee had to seek to recoup. Therefore in fixing its budget, the education committee was faced with the task of making savings of £3.085 million by reducing expenditure. Amongst other economies, they resolved to cut the expenditure on home tuition from £100,000 to £25,000 per annum. This decision was based on a recommendation by a strategic forum set up by the education committee to consider and assess all areas of its services for possible budget reductions.
This 75 per cent. cut in provision for home tuition then had to be translated into practical decisions for individual children. This was achieved by adopting a policy which is described in a letter dated 25 October 1996 from the county education officer as follows:
Subject to a full revision of the home tuition policy, it was agreed that the existing criteria for the provision of home tuition would remain in place. However, in order to meet existing commitments it was determined that provision for existing students would be decreased from five to three hours per week, and that an allocation of two hours per week would be made in cases agreed from the spring term 1996. Existing commitments on this reduced basis will lead to a significant overspend against the allocated budget for the current financial year, and contingency moneys have been identified to enable commitments to be met.
That change of policy was known to and understood by the chairman of the education committee who, in her affidavit, described it as follows:
"I knew that, as one of the means of achieving the savings of £130,000 I have referred to, the county education officer had decided to alter one of the criteria related to the provision of home tuition. The previous policy or practice on the provision of home tuition was normally to limit it to five hours per week in term time; that normal allocation was now to be reduced to three hours per week for existing cases and two hours for new cases."
In these circumstances it is not surprising that the agreed statement of facts placed before your Lordships included the following paragraph:
"In September 1996 the L.E.A. decided to reduce Beth's home tuition from five hours per week to three hours per week. The L.E.A. applied a policy that the normal number of hours of home tuition for children would be three hours per week. In formulating that policy and applying it to Beth's case, the L.E.A. had regard to financial considerations. Its decision in relation to Beth was made in the context of a previous decision, on the ground of financial stringency, to reduce the overall annual home tuition budget for the year 1996/97 from £100,000 per annum to £25,000 per annum."
There is therefore no doubt that in deciding what constituted suitable education for Beth the L.E.A. did take into account the financial resources available to it. The question is whether that was lawful.
In an affidavit, Dr. Bacon deposed that, in dealing with Beth's case, she did not simply apply the new policy in reducing the number of hours of home tuition from five to three per week but considered Beth's case individually. She reached the conclusion that three hours home tuition constituted "a suitable educational arrangement for Beth in terms of section 298." There are a number of features of Dr. Bacon's evidence which are difficult to reconcile with the contemporary...
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