R v Portsmouth City Council and Others

JurisdictionEngland & Wales
Judgment Date25 August 1998
Judgment citation (vLex)[1998] EWCA Civ J0825-3
CourtQueen's Bench Division
Docket NumberCO 1723/98
Date25 August 1998

[1998] EWCA Civ J0825-3




Royal Courts of Justice


London WC2


Mr Justice Tucker

CO 1723/98

Portsmouth City Council
Ex Parte F
(By his father and next friend)

MR P ENGLEMAN (instructed by Teacher Stern Selby, London WC1R 4JH) appeared on behalf of the Applicant.

MR C BEAR (instructed by Director of Corporate Services, Portsmouth) appeared on behalf of the Respondent.


(As Approved)


Tuesday, 25th August 1998.


Alexander Faludy is 15 and a half years old. He is highly intelligent. He is due to go up to Peterhouse College Cambridge in October to read Theology and History of Art. He will be the youngest undergraduate since William Pitt, the younger.


It may seem surprising, therefore, that he should seek judicial review of his Local Eduction Authority's decision refusing a statutory assessment of Special Educational Needs, and to provide for those needs.


The reason for the applications to the Local Education Authority and now for judicial review, are that Alexander is severely dyslexic and has dyspraxic difficulties, which even his intellectual giftedness cannot wholly overcome.


Alexander is fortunate in having very caring parents who are rightly and understandably anxious to do their best for him and to ensure that he should receive the best possible education in life. They have done all in their power to achieve this.


To date they have borne the full expense of his education. In the words of an Educational Psychologist,


Mr Freeland, Alexander's marked learning difficulties have been very successfully bypassed.


However, on 26th January of this year, no doubt acting on the advice of Mr Freeland, Alexander's father wrote to the Local Education Authority asking them to fund the remaining years of Alexander's preage 19 education. A week later, Mr Faludy requested an assessment of Alexander's Special Educational Needs, pursuant to section 329 of the Education Act 1996.


The Local Education Authority gave their decision in a letter dated 4th March 1998. The first point they took was that Alexander was not a "child", since he was not a registered pupil at a school. This was incorrect, as


Mr Faludy pointed out, since Alexander had attended school since the age of five and since 1995 he had been at a private boarding school in Dorset.


The second point taken by the LEA was that it was unnecessary to make an assessment under the section, as Alexander's dyslexia was not in dispute and the provision that the LEA could make was not that which Mr Faludy required.


It was stated, that since Alexander would not be attending an LEA school, the authority did not believe that it was necessary to undertake a statutory assessment to determine the special educational provisions. The LEA stated that if a statutory assessment were made, and this resulted in the drawing up of a statement, the LEA could make suitable provision for Alexander in a Local Education Authority school, but as Alexander had a place at Cambridge, that possibility appeared to have been rejected.


I am not required to comment on the advisability or otherwise of a 15 year old boy going to university, or as to whether at that age and outside his own chronological peer group, he will gain the full benefit of university life. That is for his parents to decide with the advice of the educational psychologist. What they envisage might be thought to be an unorthodox arrangement. It is that Alexander should attend his present school for the last three weeks in September, that he should then go up to Cambridge for the eight week university term, that he should then return to school for two weeks in December; that he should return to university in January for the eight weeks of the Hilary term; that he should then go back to school for such time as remains before the Easter holidays; then back to Cambridge for the Trinity term and, after eight weeks, return to school for such part of the school term as remains.


It is calculated that Alexander would, in addition to the 24 weeks of the year which he spends at Cambridge, spend a further eight or nine weeks at school. This disregards any opportunities which the university might offer for study groups, foreign travel or sporting activities during the vacations, or for the possible necessity of continuing academic studies or revision work.


It is only necessary for me to consider all that as the context in which the present application is made. What I have to decide is whether, in these circumstances, the Local Education Authority have been shown to have acted perversely or to have been wrong in law, in reaching their decision.


Mr Engleman, for the Applicant, submits that they have, and that the Court ought to intervene. He poses as the primary question, whether the LEA were right in saying in effect that Alexander is nothing to do with us, and therefore we do not have to carry out a statutory assessment, and if we do carry out such an assessment, what conclusions should we reach?


Consideration of Special Educational Needs and of Special Educational Provision arise under Part IV of the Education Act 1996.


The first question is whether such considerations apply to higher education, (i.e., a first degree course) upon which Alexander proposes to embark. In my opinion, the answer to this question is provided by section 1(4) of the Act, which provides, so far as is material that:

"…nothing in this Act confers any functions with respect to higher education."


By section 579(1) "functions" includes powers and duties.


Despite this apparently clear provision, Mr Engleman submits that section 1 only deals with public education and that it has nothing to do with the assessment or provision of Special Educational Needs.


I do not agree with this submission. It is perfectly clear to me that subsection (4) applies, not only to section 1, but as its words suggest, to the whole Act. Accordingly, I hold that the subsequent provisions of the Act, dealing with the assessment and provision of Special Educational Needs, have no application to a first degree course.


Mr Engleman seeks to rely on the provisions of section 319(1) of the Act and, in particular, to the reference to the making of arrangements "otherwise than in a school".


He seeks to persuade me that these words comprehend a university or college. I do not agree. In my view, that interpretation is excluded by the words of section 1(4). The words are intended to refer, for example, to private or home tuition, or to an establishment such as a Sixth Form College, but not to a university degree course.


It follows from this, in my judgment, that there cannot be a power or duty on the Local Education Authority relating to higher education. Accordingly, there could be no possible outcome of the so-called "statementing process" which would be of benefit to the Applicant in the way desired as reflected in the contents of the originating Form 86A.


I agree with Mr Bear, for the Respondent, that the only provision Alexander wanted was the funding of a placement at Cambridge. Because of the exclusion of higher education from the 1996 Act, there was no flaw...

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