R v Lancashire County Council, ex parte M
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE BALCOMBE,and |
| Judgment Date | 10 March 1989 |
| Judgment citation (vLex) | [1989] EWCA Civ J0310-9 |
| Docket Number | 89/0263 |
| Court | Court of Appeal (Civil Division) |
| Date | 10 March 1989 |
[1989] EWCA Civ J0310-9
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
DIVISIONAL COURT
(LORD JUSTICE STUART-SMITH AND MR JUSTICE PILL)
Royal Courts of Justice
Lord Justice O'Connor
Lord Justice Croom-Johnson
and
Lord Justice Balcombe
89/0263
MR M. BELOFF, Q.C., and MISS G. CAWS, instructed by B. Hill, Esq., Chief Executive Clerk (Lancashire County Council), appeared for the Appellant (Respondent).
MR B. HYTNER, Q.C., and MR A. NADIM, instructed by Messrs Rust Moss & Co. (Accrington), appeared for the Respondent (Applicant).
This is the judgment of the court.
This is an appeal by Lancashire County Council from an order dated 7th November 1988 of the Divisional Court of the Queen's Bench Division (Stuart-Smith, L.J. and Pill, J.) whereby, on an application for judical review by one C.M. (a minor, by his mother as next friend), it was declared:-
"1.…that the statement of special educational needs dated 28th January 1987 by the…Council was properly made; and…
2.…that speech therapy can be special educational provision within the meaning of section 5(1) of the Education Act 1981."
C.M. was born on 9th March 1979. He has a hearing problem and a speech problem and it is common ground that he needs intensive speech therapy. He has been seen for therapy since January 1983 when he first attended the Child Development Centre. In April 1983 he joined the "language group" for children with specific language learning difficulties, in addition to a weekly individual therapy session. In January 1984 he started school (Hapton Primary) but his attendance at the language group continued for one morning a week. In November 1984 he transferred to Ightenhill Church of England Primary School at which a special language unit had then opened. While there he received individual speech therapy four times per week in addition to small group language work.
During the period from December 1984 to May 1985, a process of assessment of C.M.'s special educational needs was put in train by the Council. This consisted of a series of reports, including reports from an educational psychologist (Mr Marsh), from the senior clinical medical officer (child health) (Dr. Helen Turner), from a speech therapist (Ruth Normanton) and from teachers at the school. All stressed the need for continued speech therapy. Thus Mr Marsh's suggested methods or approaches included "high level of teacher guidance with the availability of a speech therapist"; Dr. Turner under the same heading proposed " intensive speech therapy, and teaching in a small unit geared to structured language development"; while the speech therapist's report concluded: "[C.M.]'s difficulties are such that he would greatly benefit from continued access to intensive individual speech therapy together with a teaching environment catering for his very special language needs."
On 21st June 1985 a proposed Statement of C.M.'s Special Educational Needs was made by the Council in accordance with section 7 of the Education Act 1981 and the Regulations made thereunder. The Statement is in five parts: I. Introduction; II. Special educational needs; III. Special educational provision; IV. Appropriate school or other arrangements; and V. Additional non-educational provision. Part II as completed stated that the Authority (i.e. the Council) accepted and adopted the advice of the assessing professionals; Part III (which specified the special educational provision which the Council considered appropriate to meet the needs specified in Part II) included: "a) High level of teacher guidance with opportunities for 1:1 teaching situations…c) Access to speech therapy on a regular sessional basis." Part IV was completed as "Attendance at the Unit for children with Language Disorders, Ightenhill County Primary School", while Part V was left blank. On 16th July 1985 the Final Statement of Educational Needs was made in the same terms as the Proposed Statement of the previous month.
In June 1986 the Council made its annual review of C.M.'s special educational needs. Again there were reports, from the teacher in charge of the special language unit, from Mr Marsh and from another speech therapist. All stressed the need for continued speech therapy: Mr Marsh suggested "Access to speech therapy on a regular sessional basis"; the speech therapist said "[C.M.] has a restricted sound system…[he] uses s for sh, t for ch and w for 1. Many of the consonant clusters we use in speech are too difficult for [C.M.] to pronounce, eg plane = fane, string = sing. As a result, [C.M.]'s speech is still very difficult to understand…[C.M.] still needs intensive speech therapy. I would estimate 4 sessions a week"; and this estimate was echoed by the teacher: "[C.M.]'s expressive language problems are such that he needs individual help from a speech therapist at least four times a week."
C.M. was then coming up to junior school age, so that in any event he would have had to leave Ightenhill School. Furthermore, his family was about to move to another district and his mother did not want him to attend a residential school for pupils with language disorders. In the event Mr Marsh recommended that C.M. should attend Gibfield School for pupils with moderate learning difficulties where, as Mr Marsh understood it, speech therapy would be available for two sessions per week from August 1986 rising to three sessions per week from January 1987, i.e. at a frequency below that recommended by the review.
In October 1986 C.M. started to attend Gibfield School. On 10th October 1986 Mr Marsh wrote a letter to the District Education Officer which contained the seed of one of the matters with which this appeal is concerned. He appears to have assumed that speech therapy, at any rate on a regular sessional basis, constituted non-educational provision and he suggested that Part V of any new Statement of C.M.'s Special Educational Needs should include "A monitored individual programme of speech therapy—at least 4 sessions per week, each of 20 mins.—30 mins. duration." And so, on 20th October 1986, the District Education Officer wrote to the District General Manager at Burnley General Hospital formally requesting the speech therapy provision required for C.M., again on the assumption that this was non-educational provision.
On 11th November 1986 the Council prepared the first version of an "Amended Final Statement" of C.M.'s Special Educational Needs. Part III again included "c) Access to speech therapy on a regular sessional basis" while Part V was left blank. On 24th November 1986 the Council prepared the second version of the Amended Final Statement. The relevant paragraph of Part II had now become: "vi) Access to individual speech therapy on a regular sessional basis (see also Section V additional non-educational provision)", while Part V was completed in accordance with Mr Marsh's suggestion of 10th October 1986.
On 25th November 1986 an officer of the Burnley, Pendle and Rossendale Health Authority advised the District Education Officer that the current restraints placed upon the existing speech therapy service would not enable the Health Authority to provide for C.M. the level of speech therapy identified in the draft Statement.
On 11th December 1986 Mr D.O.P. Jones, a Senior Education Officer (Special Education) of the Council sent a memorandum to the District Education Officer saying that the Amended Final Statement of 24th November should be withdrawn "since Section V should state what we know the Health Authority can provide…In view of this paragraph [Part] (III), heading (VI) should also be amended to, I suggest, 'Access to individual speech therapy on an intensive basis'."
On 7th January 1987 C.M.'s mother appealed against the Special Educational Provision specified in the Statement, but her only head of complaint was about the additional "non-educational" provision specified in Part V of the Statement on the basis that C.M. was only receiving therapy once a week, which was insufficient.
On 8th January 1987 the Council prepared the third version of the Amended Final Statement. Part III (vi) read "Access to individual speech therapy on an intensive basis (see also Section V additional non-educational provision)" while Part V read "Access to individual speech therapy on an intensive basis". This version provoked a further memorandum from Mr D.O.P. Jones pointing out that "Section V is still not correct. It should refer to the amount of speech therapy that we know the District Health Authority can provide (hours/days/sessions per week)." The Amended Final Statement then reached its fourth and, for the purposes of this case, final version. Part III (vi) remained the same: "Access to individual speech therapy on an intensive basis (see also Section V additional non-educational provision)"; while Part V became "Speech Therapy (normally 30 minutes—one session per week)."
On 13th April 1987, by a letter to the mother's solicitors, the Council first took the point that speech therapy was non-educational provision which could not properly be included in Part III of the Statement and that paragraph (vi) of Part III had been included "by oversight." The Council indicated that on the hearing of the mother's appeal it would take the point that, since the mother's complaint related solely to non-educational provision, the Appeal Committee had no jurisdiction to entertain the appeal, since the right of appeal was limited to the special educational provision specified in the Statement. The hearing of the mother's appeal...
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