R v Secretary of State for Education and Another
| Jurisdiction | England & Wales |
| Judge | MR JUSTICE SCHIEMANN |
| Judgment Date | 08 February 1995 |
| Judgment citation (vLex) | [1995] EWHC J0208-7 |
| Date | 08 February 1995 |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | CO 2849/94 |
[1995] EWHC J0208-7
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Before: Mr Justice Schiemann
CO 2849/94
MR A WHITE (instructed by Teacher Stern Selby, London WC1R 4JH) appeared on behalf of the Applicant.
MISS P WHIPPLE for MR P HAVERS (instructed by Treasury Solicitors for the Justices) appeared on behalf of the Respondent.
MR JUSTICE SCHIEMANN: L is a gifted child with certain difficulties. In simplistic terms the position is that she is significantly above average in intelligence and above average in her age group in her performance in many fields but that, given her intelligence, one would expect her performance to be even better were she not disadvantaged in some ways. Her mother wishes her to be educated at a school which she is advised will maximise the child's potential and she wishes the Local Education Authority ("LEA") to make a financial contribution towards this. The LEA have not agreed to do so and so the mother set in motion various procedures under the provisions of various Education Acts which impose various obligations upon LEAs in relation to children with learning difficulties. The LEA was not persuaded that it had erred and so the parents appealed to the Secretary of State ("SS"). She issued a decision letter ("DL") on 25.7.1994. In that DL she decided that the child did not have special educational needs ("SEN") as defined in s.156 of the Education Act 1993. It is that decision which the mother in the name of the child seeks to have quashed in these proceedings for judicial review. The mother attacks the decision on two bases—the SS was not entitled to come to the conclusion to which she did come in view of the fact that she had previously come to the conclusion that the child did have SEN, alternatively the SS misconstrued or misapplied the definition in s. 156.
THE HISTORY
The mother's differences with the LEA started in 1991 when the LEA refused to assess L's SEN. This refusal was challenged by way of Judicial Review ("The first Judicial Review"). Those proceedings were compromised on an undertaking by the LEA to carry out such an assessment. That they did and decided that L did not have any SEN. This decision was appealed to the SS who, by a decision made in September 93 ("the first decision"), declined to intervene by directing the LEA to reconsider its decision. The applicants submit and I accept that the first decision proceeded on the basis that the SS accepted that L had SEN. The first decision was in its turn the subject of Judicial Review ("the second Judicial Review"). It was quashed by consent, the SS conceding that there had been a procedural irregularity. The matter was remitted to the SS to reconsider. She has reconsidered it and came to the decision now challenged ("the second decision").
INCONSISTENCY
In so far as the challenge is based on inconsistency between the first and second decisions, I reject it. I accept that there is an inconsistency, in the sense that the second decision is based on substantially the same material and yet comes to the conclusion that L has no SEN whereas the first decision seems to be premised on a conclusion that L does have SEN. However, all that this tells us is that the decisions differ. Such a difference can be accounted for on a number of different possible bases: That first decision was flawed in law, that the first decision was reached after an inadequate examination of the facts, that there are borderline cases and different assessments of the same facts can be made at different times by different persons in the Department of Education and Science each of whom is acting within the law, or that there is something unlawful about the second decision. In my judgment there is nothing on the face of it irrational even in the same person reaching a different conclusion when he re- examines the same facts. If the reasons given for reaching the second decision are inadequate or betray illegality then the second decision will be struck down. There is however no legal obligation for him to lengthen his reasons for reaching the second decision by setting out what he considers was wrong with the first decision.
MISCONSTRUCTION OR MISAPPLICATION OF THE STATUTE
The only statutory provision which I need set out is s. 156 which, so far as relevant reads as follows:
"(1) … A child has 'special educational needs' if he has a learning difficulty which calls for special educational provision to be made for him.
(2) … A child has a 'learning difficulty' if-
(a) he has a significantly greater difficulty in learning than the majority of children of his age,
(b) he has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area of the local education authority, or
(c) …
(3) …..
(4) … "special educational provision" means-
(a) … educational provision which is
additional to, or otherwise different from,
the educational provision made generally for children of his age in schools maintained by the local education authority …"
Three points are worth noting about these definitions.
1. Not every difficulty in learning is a "learning difficulty" as defined for the purposes of the statute.
2. A child only has SEN if both
i. he has a learning difficulty and
ii. that learning difficulty calls for educational provision which is additional to or otherwise different from the educational provision made generally for children of his age in schools maintained by the LEA.
3. Both the definition of...
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