R v Hampshire County Council and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SEDLEY |
| Judgment Date | 27 May 1994 |
| Judgment citation (vLex) | [1994] EWHC J0527-12 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO 426/94 |
| Date | 27 May 1994 |
[1994] EWHC J0527-12
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Before: Mr Justice Sedley
CO 426/94
MR J FRIEL (instructed by A E Smith & Son, Frome House, London Road, Stroud GL5 2AF) appeared on behalf of the Applicant.
MISS C BOOTH (instructed by the County Solicitor, Hampshire County Council, The Castle, Winchester SO23 8JJ) appeared on behalf of the Respondent.
27th May 1994
MR JUSTICE SEDLEYThis application for judicial review is brought pursuant to leave granted by Popplewell J on the 11th March together with an order for expedition. He also made an order under section 39 of the Children and Young Persons Act 1993 in order to protect the anonymity of the applicant, who brings these proceedings by his mother and next friend and to whom I will refer as Ben. On his behalf Mr Friel seeks an order of certiorari to quash a decision of the respondent education authority given on the 24th December 1993, by which the respondent declined to assess Ben's special educational needs. The ground on which he seeks the quashing, and in support of which he further seeks a declaration, is that the respondent authority is obliged to make such an assessment by virtue of section 5 of the Education Act 1981. Separately, he seeks an order of mandamus to compel the respondent authority to consider exercising its grant-making power in favour of Ben under section 81 of the Education Act 1984.
Ben is 11 years old; his date of birth is the 21st March 1983. His mother has been concerned on his behalf for some time with his educational performance. When he was not quite ten years old, in February 1993, Ben was seen by the county's educational psychologist Mr Carabine, who found that his reading and spelling were below average for his age but 'not so severe as to warrant a request to the education office for initiation of a formal assessment'. Ben's mathematical ability was found by Mr Carabine to be exactly average for his age. He gave some advice to the primary school at which Ben was a pupil and concluded:
'Ben's progress should be discussed again with the educational psychologist in six months time, or earlier if the situation dictates.'
In June 1993, in a follow-up report, Mr Carabine noted:
'Academically progress is reported to be occurring though slowly. Ben's reading age is reported to have shown some increase.
Ben continues to experience difficulties retaining tables knowledge. A present aim ……. is to try to identify a maths scheme which does not incorporate a heavy reading load.'
Mr Carabine concluded that there should be a further routine review early the following term.
Ben's mother, however, was dissatisfied with the decisions being made about him. It is relevant to what follows that her concern and her ground for it appear to me to have been perfectly reasonable. Through the Dyslexia Institute she had Ben examined by Mr Biddulph, like Mr Carabine an educational psychologist. Ben was by now 10 years and 3 months old. Mr Biddulph found him to have reading ages of 7 years 8 months for single word recognition and 8 years 2 months for continuous prose, a spelling age of 7 years 5 months and a number age of 9 years 7 months. While the reading and spelling performances were, as Mr Biddulph noted, 'well below the level to be expected for his age', Ben's mathematical performance was described by Mr Biddulph as 'somewhat below the level to be expected for his age', being within approximately the 31st centile. The difference between the observed and expected scores said Mr Biddulph, were
'fairly significant …….. occurring in approximately 25% of the population'.
Later in the report he described Ben as 'considerably under-achieving in basic literary skills' and as 'slightly under-achieving in basic numeracy skills'. He concluded:
'Statistical analysis shows that Ben's difficulties in reading and spelling are relatively rare, occurring in less than 4% of the population. Taking into consideration his reported increasing frustration and anger at home, I consider it important that additional support of an appropriate nature is given now. In the circumstances I am of the opinion that the LEA should make a full assessment of his special educational needs under the terms of the 1981 Education Act.'
Mr Carabine reported again in October 1993. He was unable to use the same tests as he had used in February because Mr Biddulph had used them too and there was a risk that Ben would by now be acquiring practice in answering them. The number skills test which he applied produced a result 'very much in line' with Mr Carabine's result earlier in the year. In reading he found an approximate word reading age of 8 years 7 months which, allowing for the use of a different test from the earlier one, Mr Carabine thought was 'evidence of real progress in this area'. Ben's spelling was still very poor.
As to support at school, Mr Carabine reported:
'The level of support being offered to Ben has increased since my last review in June 1993. He now receives roughly double that amount of SNA support (present level something like 4 —5 hours per week individual or small group) and continues to receive odd sessions of individual help from his class teacher (e.g. during assembly).
The advisory teacher ……. continues to have an involvement and multi-sensory approaches to reading and spelling form a basis to Ben's support work'.
Mr Carabine concluded:
'Ben has no great problem with number work. His skills in this area continue to be age appropriate.
Pleasing progress has occurred in reading. Ben's skills now fall somewhere at the very lower end of the broadly average range.
Ben continues to experience difficulties with spelling. Skills here are below average for his age.
(In my opinion the overall picture reported here and in my earlier report does not differ in any significant way from that recorded in the independent assessment obtained by [Mrs W] from the Dyslexia Institute).
The nature of the support Ben is receiving at school seems appropriate to his needs. The increase to the level of the support will, I am sure, prove beneficial.
From an academic standpoint I have little doubt that Ben's special educational needs could be met at his local mainstream secondary school ……..'
Mr Carabine finally recorded that Ben's mother was still very much concerned and was seeking financial support for Ben to attend a fee-paying school.
Ben's mother went to her M.P., Sir David Mitchell, about the matter, and he corresponded with the county council about it. The correspondence, in which the county council expressed the view that Mr Biddulph's findings did not indicate a severity of special educational need requiring formal assessment, was sent to Mr Biddulph for comment. Mr Biddulph reiterated his view:
'It is quite clear from my report that Ben is experiencing considerable difficulty in the acquisition of basic literacy skills in particular, and that this is further complicated by his beginning to experience emotional problems as a result of these difficulties …….
I am in no doubt whatsoever that the LEA should make a full assessment of his special educational needs under the terms of the 1981 Education Act.'
On the 24th December 1993, following a full consideration of the matter by the Divisional Assessment and Placement Panel, the county's head of pupil services, Mr Munro, wrote to the applicant's solicitors with the county education officer's decision that
'on the evidence available, there was no justification for the LEA to begin the statutory assessment. Factors affecting this view were:
*the latest report from Mr Carabine (15.10.93) indicates that number skills continue to be age appropriate.
*Ben has made good progress in reading
*The only area of significant difficulty is with spelling where both Mr Carabine's and Mr Biddulph's place Ben's performance at the 7th centile.
*Ben is already receiving additional, and successful, support …… funded by the school's delegated budget.
…………
None of Mr Biddulph's or Mr Carabine's findings suggest that Ben's special educational needs are of such severity that they warrant the allocation of additional support …. by means of a statement. Hampshire's policy, clearly stated on page 2 of the letter to Sir David Mitchell of 19th November, appears to be fully endorsed by the draft code of practice.
There is one aspect of Mr Biddulph's report and his letter to Sir David which merits particular comment and as indeed considered in some detail at the Divisional Assessment and Placement Panel. At the bottom of page 5 of his report and in his letter to Sir David Mitchell, Mr Biddulph draws particular attention to the differences between observed and predicted achievement test standard scores. In the letter to Sir David, Mr Biddulph states that the table 'demonstrates quite clearly that the discrepancies are statistically significant. The LEA does not dispute the evidence but does question the inferences drawn. The wealth of evidence produced both by Mr Biddulph and by Mr Carabine demonstrates very clearly that Ben does not fall within that 'small minority of cases —nationally around 2% of children (who) have special educational needs of a severity or complexity which requires the LEA to determine and arrange special educational provision for the child.'
(Draft Code of Practice: paragraph II —2).
It is false reasoning to say that simply because there happen to be statistically significant discrepancies between observed and predicted achievement this necessarily...
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