S v Somerset County Council

JurisdictionEngland & Wales
CourtQueen's Bench Division (Administrative Court)
JudgeSIR RICHARD TUCKER
Judgment Date25 July 2002
Neutral Citation[2002] EWHC 1808 (Admin)
Docket NumberCase No: CO/3590/2001
Date25 July 2002

[2002] EWHC 1808 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

(ADMINISTRATIVE COURT)

Before

Sir Richard Tucker

Case No: CO/3590/2001

Shead
and
Somerset County Council

MR C LEWIS (Instructed by RUST MOSS AND CO) appeared on behalf of the APPELLANTS

MR P OLDHAM (Instructed by the SOMERSET COUNTY COUNCIL LEGAL SERVICES DEPARTMENT) appeared on behalf of the RESPONDENT

Thursday, 25 July 2002

SIR RICHARD TUCKER
1

This is a statutory appeal brought on behalf of T, a boy, now aged 14 and a half. I have made an order prohibiting publication of his identity. T has complex special educational needs. He has spastic quadriplegia and is totally dependant on adults for his mobility and other needs. He has poor head control and severely restricted hand use, which have a significant effect on his ability to communicate. He has delayed visual maturation.

2

The appeal is against the decision of the Special Educational Needs Tribunal issued on 24 July last year. The Tribunal are the second respondents to the appeal, but have not appeared or been represented at the hearing. The first respondents, Somerset County Council, have appeared and are represented by

3

Mr Oldham. They are the Local Education Authority. They maintain a statement of special education needs for T. Part of the provisions specified in that statement is what is referred to as physical management programme, designed to maintain the range of movement in all joints with monitoring and advice from a physiotherapist as necessary.

4

The statement dated 1 December 2000 identified as the placement for T, a special school maintained by the Local Education Authority for pupils with severe and complex learning difficulties, the Fiveways School at Yeovil. T has been attending this school since he started his schooling. However, T's parents are dissatisfied with the placement. They wish to have a different school to be specified in the statement. The school they have in mind is Dame Hannah Rogers school. This is an independent residential school where T would be a termly boarder. It is a much more expensive school than Fiveways.

5

The parents appealed against the contents of the statement under the provisions of the Education Act 1996. Their appeal was heard by SENT on 12 July last year. The Tribunal set out its conclusions with reasons. It is against that decision that the appeal is brought. There were some conclusions which are not in dispute. First, that the provision made at Fiveways School during the normal school day was wholly appropriate for T. Second, there was not an educational need for residential provision. Third, there was not an educational need for direct physiotherapy by a chartered physiotherapist, or advice from him or her outside school hours.

6

However, the Tribunal recognised that the physical management programme was a much more difficult aim. They concluded that part of the direct physiotherapy and advice from a physiotherapist made available for T was an educational provision and part was non-educational (i e health - care). They recognised that there was a considerable overlap.

7

The Tribunal stated that they did not have jurisdiction to make orders on the grounds of social, housing or health needs. The Tribunal had careful regard to the provisions of section 9 of the Act which is in these terms under the rubric Education in accordance with parental wishes:

"In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State and local education authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure."

8

The Tribunal stated that they had due regard to the preference expressed by T's parents, but in their view there were a number of factors to weigh against it.

(i) Transitional difficulties caused by the move from one school to another.

(ii) The Tribunal's concern that Dame Hannah Rogers school may not be an appropriate placement.

(iii) It would be unreasonable public expenditure.

9

It had been submitted on behalf of the parents that the Tribunal should take into account the total costs to the public purse of a placement at Fiveways or at Dame Hannah Rogers. The Tribunal were not persuaded by that argument. They considered that they should compare the costs of the placement of the Dame Hannah Rogers (with transport) and the costs to the Local Educational Authority for placement at Fiveways (with transport). The former amounts to £59,000 and the latter to about £26,000, a difference of £33,000. Accordingly, the SENT dismissed the appeal.

10

T's parents requested a review of the Tribunal's decision. The letter making that request was in these terms:

"It was not appropriate for the Tribunal to take the view that parental preference should not take effect, simply because the Tribunal took the view that Dame Hannah Rogers School might not be an appropriate placement. There was no evidence before the Tribunal to suggest that Dame Hannah Rogers School was not an appropriate placement, the local authority did not argue that Dame Hannah Rogers was inappropriate, and the Tribunal has not made a finding of inappropriateness.

The Tribunal has erred in its view that it would not take into account the total costs of the public purse of a placement at Fiveways School - the Tribunal should have regard to the total costs to the public purse including the costs of social services provision especially in this case where the Tribunal has recognised that on its own understanding of the matter that social services would be required put into place educational provision for T outside of school hours namely in relation to the postural management programme."

11

SENT conducted a review, but did not alter their decision. They concluded that in exercising powers pursuant to section 9 of the Act, the interpretation of public expenditure was not settled and needed to be established by the court. In the light of that conclusion, it did not seem to the Tribunal that the appropriateness of a 38 week placement at Dame Hannah Rogers School was a relevant issue.

12

Before me Mr Lewis submits that in reaching their initial conclusions the Tribunal erred in law. He submits that the words 'public expenditure' should be interpreted as meaning the costs which the local authority had to meet. In this case the authority, Somerset County Council, is the same authority for the purposes not only of education but also of social services.

13

Mr Lewis submits that it is artificial to say that Somerset County Council takes money for some purposes from one pocket and money for other purposes from another pocket. He criticizes SENT for not taking into account the costs of providing suitably trained carers for implementing the physical management programme or other social services costs.

14

Therefore, the issue in this case concerns the proper interpretation of section 9 and, in particular, what costs SENT are to take into account when determining whether complying with a parental preference would be incompatible with the avoidance of unreasonable public expenditure.

15

Mr Lewis submits that the words of the section are deliberately broad; that what must be looked at are the powers to be exercised. He submits there is no reason why the public expenditure referred to should be...

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4 cases
  • O v London Borough of Lewisham and Another
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 11 September 2007
    ...as it is possible to say that Hooper J. did not think the concession objectionable or manifestly wrong. 24 The third authority is S v Somerset County Council [2002] EWHC 1808 (Admin) in which Sir Richard Tucker, sitting as a Deputy Judge of the High Court, rejected the argument that the Tri......
  • Wendy Haining v Warrington Borough Council
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 2 April 2014
    ...I would have expected this to be clearly spelt out in the legislation. 13 This decision was followed by Sir Richard Tucker in S v Somerset County Council [2002] EWHC 1808 (Admin), [2003] ELR 78. In that case the judge rejected the submission that the tribunal had erred by failing to take ac......
  • HS 169 2011, CM v London Borough of Bexley
    • United Kingdom
    • Upper Tribunal (Administrative Appeals Chamber)
    • 1 June 2011
    ...expenditure” and “resources” into accord if it had been considered appropriate, but it was not. 49. In S v Somerset County Council [2002] EWHC 1808 Admin; [2003] ELR 78, Sir Richard Tucker followed C v SENT [1997] ELR 390. He did so based in part on the view espoused in that case that if Pa......
  • HS 2846 2010, K v London Borough of Hillingdon
    • United Kingdom
    • Upper Tribunal (Administrative Appeals Chamber)
    • 11 February 2011
    ...I respectfully differ from the conclusion which Sir Richard Tucker reached in the Somerset case [S v Somerset County Council [2002] EWHC 1808 (Admin)]. In my judgment, the term ‘public expenditure’ in s.9 is not confined to the expenditure of the Local Education Authority. Mr Wolfe referred......

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