Richardson v Solihull Metropolitan Borough Council White v Ealing London Borough Council ; Hereford and Worcester County Council v Lane
| Jurisdiction | England & Wales |
| Judgment Date | 1998 |
| Date | 1998 |
| Year | 1998 |
| Court | Queen's Bench Division |
Education – Special educational needs – Whether local education authority under absolute duty to name particular school in statement of special educational needs – Whether Special Educational Needs Tribunal under duty to name school on appeal – Whether authority under a duty to arrange and pay for non-maintained school – Education Act 1996, ss 324, 325, 326, 348, 517, Sch 27, para 3.
In three separate appeals from decisions of Special Educational Needs Tribunals the issues arose as to whether and in what circumstances the tribunal was obliged to name a school as part of the special educational provision in a statement of special needs pursuant to s 324(1) of the Education Act 1996, and as to whether and in what circumstances a local education authority should pay the costs of providing special education which had been specified in a statement of special educational needs. In each case the children were boys who suffered from autism whose parents wished them to attend the same residential non-maintained school in the United States of America.
The first case, White, involved twins. In the statement the authority named a residential school in England. The parents appealed and stated that their preferred school was the one in the United States of America. The tribunal found that neither a named school in England nor the school in America was appropriate to meet the needs of the twins and amended the statement by deleting a reference to a named school and substituting a description of the type of school that was appropriate to the needs of the boys. The parents appealed.
In the second case, Richardson, the boy had been placed by his parents in the school in America, the fees for which were over £50,000 a year. The local education authority, in the statement of special needs, described the boy’s
needs as not requiring a residential placement. The parents appealed to the tribunal which found that a residential placement was not necessary to meet the boy’s special educational needs. The tribunal went on to find that as it had received no evidence as to suitable placements in this country it was unable to name a school for inclusion in the statement. The parents appealed.
In the third case, Finn, the parents had sent the boy to the school in America in January 1997. As they could not afford to pay the fees from their own resources they had carried out fund-raising and had been able thereby to pay the fees for two terms in advance with enough left over to fund one more term. In the authority’s statement no school was named and the tribunal held that the school should be named in the statement and that the authority had a duty to pay for the special educational provisions for the boy at the school in America. The authority appealed.
Held – (1) By s 324(1) of the Education Act 1996 a local education authority were not required to name any school in a statement of special educational needs unless they were required to do so under Sch 27 to the 1996 Act where the parent had expressed a preference as to the maintained school he wished his child to attend or unless they considered it appropriate to name a particular school as appropriate for the child. There was, therefore, no absolute duty on the authority to name the school either in the case of schools in the maintained sector or those in the non-maintained sector. Since it would be strange if the statute did not impose such a duty on the authority but imposed a duty on the tribunal, and there was nothing in s 326 of the 1996 Act, which dealt with appeals to the tribunal against the contents of a statement, to suggest that the tribunal was required to adopt a different approach to the issue on appeal, it followed that the tribunal was under no duty in all cases to name a school. The appeals in the first and second cases would be dismissed.
(2) Where educational provision in respect of a child with special educational needs was made in a non-maintained school and the name of the school was specified in the statement, the authority were under a duty, pursuant to s 324(5)(1)(a) of the 1996 Act, to arrange that the educational provision specified in the statement was made unless the child’s parents had made suitable arrangements. Moreover, under s 348(1) and (2) (replacing s 517(4) of that Act from 1 September 1997), the authority were required to pay the whole of the fees for the education if they were satisfied that it was expedient in the child’s interests that the special education provision should be made for him in a non-maintained school, and board and lodging. The question whether the child’s parents had made suitable arrangements fell to be considered at the time when the statement was completed, which was not until the resolution of any appeal. The decision was for the authority and for the authority alone to decide, subject to review on well-established principles of administrative law. In the third case, the authority had taken a simplistic view that since the boy had been placed at the school in America that meant, without more, that his parents had made suitable arrangements so that the
authority were relieved of the duty of making the special educational provision specified in the statement. The authority should have had regard to the duration of the arrangements effected by the parents and, as it was clearly envisaged that the boy would have to attend the school for a substantial period of time in excess of that for which the parents had secured funding, it was unreasonable of the authority to seek to relieve themselves of their statutory duties by relying on the parents to raise finance for the boy’s schooling. It followed that they were clearly in breach of their statutory duties.
Cases referred to in judgmentAssociated Provincial Picture Houses Ltd v Wednesbury Corp [1948] 1 KB 223, [1947] 2 All ER 680.
R v East Sussex CC, ex p Tandy[1997] 3 FCR 525, CA.
R v Kent CC, ex p W[1995] 2 FCR 342.
R v London Borough of Hackney, ex p GC [1995] ELR 144; affd [1996] ELR 142, CA.
R v Secretary of State for Education, ex p Davis [1989] 2 FLR 190, DC.
S (a minor) v Special Educational Needs Tribunal[1996] 2 FCR 310, [1996] 1 All ER 171, [1995] 1 WLR 1627.
Secretary of State for Employment v Mann [1996] ICR 197, EAT.
Appeals White v Ealing London BCThe parents of Simon and David White appealed from the decisions of Ealing London Borough Council and a Special Educational Needs Tribunal refusing to name their preferred school, the Higashi School, Boston, United States of America, in a statement of special educational needs of the two boys. The facts are set out in the judgment of Dyson J.
Richardson v Solihull Metropolitan BCThe parents of Ben Richardson appealed from the decision of Solihull Metropolitan Borough Council and a Special Educational Needs Tribunal refusing to name the Higashi School, Boston, United States of America, in a statement of special educational needs for the boy. The facts are set out in the judgment of Dyson J.
Solihull Metropolitan BC v Special Needs Educational TribunalThe Solihull Metropolitan Borough Council appealed from the decision of a Special Educational Needs Tribunal that the Higashi School, Boston, United States of America, should be named in the statement of special educational needs in respect of James Finn. The facts are set out in the judgment of Dyson J.
Nicholas Bowen (instructed by Teacher Stern Selby) for Simon and David White.
John Friel (instructed by Richard Poulson, Ealing London Borough Council) for Ealing London Borough Council.
Cherie Booth QC and Clive Lewis (instructed by Rust Moss & Co, Accrington) for Ben Richardson and James Finn.
Elizabeth Appleby QC and Marie Demetriou (instructed by Blamire-Brown, Solihull Metropolitan Borough Council) for Solihull Metropolitan Borough Council.
Nathalie Lieven (instructed by the Treasury Solicitor) for the Special Educational Needs Tribunal.
Cur adv vul
8 July 1997. The following judgment was delivered.
DYSON J. IntroductionThere are before me three appeals from decisions by Special Educational Needs Tribunals. They raise a number of points of sufficient general importance that, in two of the appeals, the tribunal has been separately represented. These include questions as to whether and in what circumstances the tribunal is obliged to name a school as part of the special educational provision specified in a statement of special educational needs made pursuant to s 324(1) of the Education Act 1996. Another issue that it is agreed that I should determine concerns the question whether, and in what circumstances, a local education authority should pay the cost of providing special education at non-maintained schools, which have been specified in a statement of special educational needs.
I shall, however, begin with a review of the facts in the three appeals.
RichardsonBen is four years of age and suffers from autism. The authority completed their assessment of his special educational needs in October 1995. In January 1996, Ben was placed by his parents in the Boston Higashi School, United States of America, after they had conducted a fund-raising campaign. It costs approximately £1,000 per week to keep him at the school, which he still attends. The authority issued a statement of special educational needs for Ben on 16 August 1996. The statement described Ben’s special educational needs in Pt 2, and the proposed special educational provision in Pt 3. The authority stated that they were not of the opinion that a residential placement was required in order to meet his special educational needs. I should set out Pts 4 and 5 of the statement:
‘PART 4 PLACEMENT
Ben would benefit from attending a special school which caters for children whose learning difficulties are associated with Autistic spectrum disorders and where the provision described under Part III can
be made available. He is presently placed in an independent school of his parents’ choice at their own expense. The...
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Richardson v Solihull Metropolitan Borough Council (Special Educational Needs Tribunal, interested party)White and another v Ealing London Borough Council and anotherHereford and Worcester County Council v Lane
...v Solihull Metropolitan BC (Special Educational Needs Tribunal, interested party) and White v Ealing London BC decisions of Dyson J ([1998] 1 FCR 344) affirmed. In Hereford and Worcester CC v Lane decision of Collins J (4 September 1997, unreported) reversed. Case referred to in judgmentsR ......