Slough Borough Council v C and Special Educational Needs and Disability Tribunal
| Jurisdiction | England & Wales |
| Judge | Mr Justice Richards,MR JUSTICE RICHARDS |
| Judgment Date | 22 July 2004 |
| Neutral Citation | [2004] EWHC 1759 (Admin) |
| Court | Queen's Bench Division (Administrative Court) |
| Docket Number | Case No: CO/2184/2004 |
| Date | 22 July 2004 |
[2004] EWHC 1759 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Royal Courts of Justice
Strand, London, WC2A 2LL
The Honourable Mr Justice Richards
Case No: CO/2184/2004
John Friel (instructed by Slough Borough Council Legal Department) for the Appellant
Nicholas Bowen and Andrew Willins (instructed by Teacher Stern Selby) for Mr and Mrs C
Clive Lewis (instructed by The Treasury Solicitor) for the Special Educational Needs and Disability Tribunal
This is an appeal by Slough Borough Council against a decision of the Special Educational Needs and Disability Tribunal issued on 5 April 2004 and amended on 7 May 2004. The decision relates to "IC", a boy now aged 5 years old who has global development delay and associated learning difficulties. IC's parents appear as first respondents to the appeal. The tribunal appears as second respondent
The material facts are briefly as follows:
i) In May 2002 the council issued a statement of special educational needs in respect of IC. The statement described his special educational needs in Part 2 and the special educational provision in Part 3, noting that the provision would "most appropriately be arranged in a special school". Part 4 specified the type of school, namely "a special school", and named a particular school which I will call "the A school". There was no appeal against the statement.
ii) IC attended the A school until April 2003, when his parents removed him from the school and secured for him an intensive individualised programme devised and delivered by an independent organisation and designed to facilitate transfer to mainstream education.
iii) Then, in November 2003, the parents made a request to the council under paragraph 8 of schedule 27 to the Education Act 1996 to substitute a mainstream primary school, the "S" school, for the existing A school in Part 4 of the statement. The council refused the request because it considered that the S school was not appropriate.
iv) The parents appealed to the tribunal, which allowed the appeal and ordered that Part 4 be amended so as to refer to a "mainstream school, namely [the S school]", in place of the existing reference to a "special school, namely [the A school]".
v) In its original decision the tribunal also ordered that certain consequential amendments be made to Part 3 of the statement to reflect the specialist teaching and assistance that the tribunal considered that IC would need at the S school. In its amended decision, however, it deleted the amendments to Part 3.
vi) It is relevant to note, though it is not the subject of the present appeal, that in November 2003 the parents also asked for a reassessment of IC's special educational needs. That reassessment was not completed by the time of the tribunal's decision. The request for substitution of a mainstream school in Part 4 of the existing statement was therefore based on the educational provision in the existing statement.
The council submits that the tribunal's decision was unlawful. The central issue in the case is the effect of section 316 of the 1996 Act which imposes a duty, subject to certain exceptions, to educate children with special educational needs in mainstream schools. In a recent judgment in MH v. (1) Special Educational Needs and Disability Tribunal and (2) LB Hounslow [2004] EWCA Civ 770 the Court of Appeal gave guidance on how section 316, read together with section 316A, interacts with the provisions of paragraph 3 of schedule 27 (where a parental preference is expressed for a particular school to be specified in the original statement). The guidance so given does not extend to the interaction of section 316 with paragraph 8 of schedule 27 (where parents request that a particular school be substituted for that specified in the original statement). That is the issue arising in the present case. It is said to be an issue of importance and difficulty, which is why the tribunal has appeared through counsel, Mr Lewis, in order to assist the court. I am grateful to the tribunal for that assistance, which has been rendered in an appropriately measured and balanced way.
Legislative framework
The Court of Appeal's judgment in MH contains a detailed account of the legislative framework. I need therefore give only a summary and set out the directly material provisions.
A local education authority is under a duty to identify children with special educational needs, i.e. those with learning difficulties calling for special educational provision to be made for them. Where, in the light of an assessment and of any representations made by the child's parents under schedule 27 to the 1996 Act, it is necessary for the authority to determine the special educational provision called for, the authority is required to make and maintain a statement in a prescribed form. The combined effect of section 324 of the 1996 Act and the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 is that the statement must contain: in Part 2, details of the assessment of the special educational needs; in Part 3, details of the special educational provision to be made for the purpose of meeting those needs; in Part 4, the type of school which the authority considers would be appropriate for the child, together with the name of a school.
Although I do not need to set out the whole of section 324, two sub-sections are of particular relevance:
"(3) In particular, the statement shall �
(a) give details of the authority's assessment of the child's special educational needs, and
(b) specify the special educational provision to be made for the purpose of meeting those needs, including the particulars required by subsection (4).
(4) The statement shall �
(a) specify the type of school or other institution which the local education authority consider would be appropriate for the child,
(b) if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement �."
The reference in section 324(4)(b) to schedule 27 leads me to paragraph 3 of that schedule. The position is that, under paragraph 2, the authority must serve a copy of the proposed statement on the child's parent, leaving Part 4 blank. Paragraph 3 then enables the parent to indicate a choice of school. It provides:
"(1) Every local education authority shall make arrangements for enabling a parent �
(a) on whom a copy of a proposed statement has been served under paragraph 2 �
to express a preference as to the maintained school at which he wishes education to be provided for his child and to give reasons for his preference.
�
(3) Where a local education authority make a statement in a case where the parent of the child concerned has expressed a preference in pursuance of such arrangements as to the school at which he wishes education to be provided for his child, they shall specify the name of that school in the statement unless �
(a) the school is unsuitable to the child's age, ability or aptitude or to his special educational needs, or
(b) the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources."
It is at this point that sections 316 and 316A need to be considered. Those sections, as substituted by the Special Educational Needs and Disability Act 2001, provide in material part:
" 316.(1) This section applies to a child with special educational needs who should be educated in a school.
�
(3) If a statement is maintained under section 324 for the child, he must be educated in a mainstream school unless that is incompatible with �
(a) the wishes of the parent, or
(b) the provision of efficient education for other children.
(4) In this section and section 316A 'mainstream school' means any school other than �
(a) a special school, or
(b) an independent school which is not (i) a city technology college, (ii) a city college for the technology of the arts, or (iii) an Academy.
316A. �
(3) Section 316 does not affect the operation of �
(a) section 348 [provision of special education at non-maintained schools], or
(b) paragraph 3 of Schedule 27.
(4) If a local education authority decide �
(a) to make a statement for a child under section 324, but
(b) not to name in the statement the school for which a parent has expressed a preference under paragraph 3 of Schedule 27, they shall, in making the statement, comply with section 316(3)."
As already mentioned, the relationship between those various provisions was the subject of guidance in MH. The court stated:
"68. At the outset it is, in our judgment, of crucial importance to recognise that the process for recognition of parental choice of a particular school contained in paragraph 3 of Schedule 27 ('the paragraph 3 process') is entirely distinct both in its nature and in its purpose from the process whereby a local education authority discharges its duty under sections 316 and 316A ('the section 316 process').
69. Under the paragraph 3 process, parents have a qualified right to insist on their preference for a particular school. The right is qualified by paragraph 3(3)(a) and (b), in that if any of the conditions in those subparagraphs is met, the local education authority is not bound to specify the name of that school in Part 4 of the...
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