M, R (on the application of) v Sutton London Borough Council

This is an appeal against an order of Goldring J. quashing the decision of the appellant, the Sutton London Borough Council (“the council”), not to provide transport to school for a child, D.

At the time of the decision in December 2006 D, then aged 11, was the subject of a statement of special educational needs maintained by the council as his local education authority under section 324 of the Education Act 1996 (“the Act”). The statement, which was made in the recognised standard form, had originally been made in March 1999 and had been amended three times since, most recently in April 2006. It recorded that D had been diagnosed as having Asperger’s Syndrome and that as a result he had special educational needs in order to improve his communication skills, to develop his ability to make inferences in language, to develop his attention and listening skills and to nurture his social skills with other children and adults and in social situations generally.

In accordance with his parents’ wishes, at the time of the most recent amendment to the statement D was attending a mainstream primary school, WPS, maintained by a neighbouring local authority. His parents were pleased with his progress and wanted him to remain there. The council thought that D’s needs could be met at other mainstream schools nearer his home, but was willing to specify WPS in Part 4 of his statement on the basis that his parents would bear responsibility for his transport to and from school. It was common ground that he could not be expected to walk to and from WPS, even if accompanied by an adult. Accordingly, the council added a paragraph to Part 4 of the statement so that it read as follows:

“PART 4: PLACEMENT

[WPS] . . . . . a mainstream primary school in Surrey LEA.

In accordance with paragraph 8:87 of the SEN Code of Practice, Sutton LEA has named [WPS] in this statement as it is the placement preferred by D’s parents. However, as this school is further away from D’s home than other mainstream schools that could also meet D’s needs, Sutton LEA will not accept responsibility for the costs of transporting D to and from [WPS].”

The Code of Practice there referred to was that published by the Secretary of State pursuant to section 313 of the Act to give practical guidance to local education authorities when performing their functions under sections 323 and 324 of the Act. It is not legally binding, but authorities are obliged to have regard to it. Paragraph 8:87 of the Code provides as follows:

“The parents’ preferred school might be further away from the child’s home than another school that can meet the child’s special educational needs. In such a case, it might be open to the LEA to name the nearer school if that would be compatible with the efficient use of the LEA’s resources. It would also be open to the LEA to name the school preferred by the child’s parents on condition that the parents agreed to meet all or part of the transport costs.”

The dispute in this case is whether the council was under a duty to provide transport for D to and from WPS because WPS was the only school specified in Part 4 of his statement. The judge held that it was ([2007] EWHC 267 (Admin), [2007] ELR 377), largely because he construed paragraph 8:87 of the Code as requiring the local education authority to name a nearer alternative whenever it names the school preferred by the child’s parents on condition that they meet the costs of transport. It is against that decision that the council appeals.

Each local education authority has a duty under section 321 of the Act to identify those of the children for whom it is responsible who have special educational needs. If an authority has reason to think that a child may have special educational needs, it is obliged by section 323 of the Act to make an assessment of that child’s educational needs. An obligation to make and maintain a statement of special educational needs arises under section 324 in relation to any child who, as a result of such an assessment, is found to have such needs.

Subsections (2) to (4) of section 324 deal with the form and content of a statement of special educational needs and are of some importance in this case. They provide as follows:

“(2)

The statement shall be in such form and contain such information as may be prescribed.

(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, and

(c)

specify any provision for the child for which they make arrangements under section 319 and which they consider should be specified in the statement.”

Regulation 16 and schedule 2 of the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 provide a standard form for making statements of special educational needs. The form, which is not mandatory but is widely used by local education authorities, contains six sections, each of which provides guidance about what it should contain. The only part of the form that is relevant to this appeal is Part 4 which deals with the child’s placement, but the guidance provided in relation to the completion of that part adds nothing to section 324(4) and for present purposes can be ignored.

By paragraphs 3 and 8 of schedule 27 to the Act the local education authority is required to give the parents of a child with special educational needs an opportunity to express a preference as to the school at which they wish him to be educated and, if the parents do so, it must specify the name of that school in the child’s statement unless it is unsuitable for him or his attendance would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources.

The debate between D’s parents and the council over where he should go to school and whether he should be provided with free transport if he attended WPS began long before the statement was amended in April 2006 and continued for many months thereafter. The council had been willing to specify WPS in Part 4 of D’s statement on the basis that his parents took responsibility for his transport to and from school, but for a time the council provided transport for D as a concession without accepting any obligation to do so. Eventually, however, in a letter dated 7^th December 2006 it informed his parents that it would cease to do so on the grounds that, since there were mainstream primary schools nearer his home that were able to meet his needs, it would not be a reasonable use of public funds. Transport was in fact withdrawn from January 2007 and shortly afterwards D’s parents began proceedings for judicial review which came before Goldring J. in February this year.

In the court below D’s parents argued that since WPS was the only school named in Part 4 of the statement the council was obliged to provide him with transport to and from school and could not rely on the general reference to other mainstream schools in the area as grounds for refusing to do so. The judge quashed the council’s decision. Having considered the statutory provisions and paragraph 8:87 of the Code of Conduct, he held that the council was entitled to take into account the need for the efficient use of resources by specifying other schools in addition to WPS and was also entitled to make it clear that placement at WPS was conditional on D’s parents’ agreeing to meet all or part of the costs of transport to and from that school. However, he held that it was not sufficient in those circumstances merely to refer in general terms to the availability of other schools without identifying them by name. He held that in order to enable the child’s parents to make an informed choice whether to take a place for the child at their preferred school and to pay for transport or to accept a place at another school they had to know what the alternatives were. He held that in the present case WPS was the only school specified by the council and that it therefore had a duty to provide the necessary transport for D. The statement to the effect that other nearer mainstream schools could also meet D's needs was in his view insufficient and could not properly form the basis for its decision not to do so.

Miss Ward’s primary submission in support of the appeal was that by completing Part 4 of the statement as it did the council had made its position quite clear: it was content to specify WPS because it accorded with the parents’ preference, but it was willing to do so only on the basis that they agreed to take responsibility for transport because there were other schools closer to D’s home that were capable of providing for his needs. Since D’s parents had already made it clear that they were unwilling to consider any alternative to WPS, it was unnecessary for the council to name any one or more of them at that stage. She submitted that the judge was wrong to hold that the council was obliged to specify any particular school and wrong to hold, in effect, that the bulk of what it had said in Part 4 should be disregarded.

Mr. Wise on behalf of the respondent sought to uphold the judge’s reasoning. Although he accepted that a local education authority is entitled in the ordinary way merely to specify the type of school which it considers would be appropriate for a child, he submitted that if the parents had expressed a preference for a particular school, it had a statutory obligation to specify that school or another school of an appropriate kind. Accordingly, in the present case the council was obliged to name at least one alternative school if it was unwilling to specify WPS unconditionally. He also submitted that read as a whole Part 4 of the statement in this case contained a clear nomination of WPS together with an explanation or qualification which was not provided for in the statutory scheme and which was therefore of no effect.

In order to determine the nature and scope of the council’s obligations it is necessary to return to the statutory provisions. Sections 323 and 324 of the Act imposed on the council as the local education authority an obligation to identify D’s needs, determine what provision had to be made to meet them and decide which school or schools would be suitable for him. Its conclusions had to be embodied in a statement which met the requirements of sections 324(2) to (4), but those subsections are expressed in general terms and neither the Act itself nor any of the regulations made under it prescribe the form or content of the statement in any greater detail. I am unable, therefore, to accept Mr. Wise’s submission that the second paragraph of Part 4 of the statement in this case is to be disregarded simply on the grounds that it does not conform to, or is not sanctioned by, the statutory provisions. Paragraph 8:87 of the Code of Conduct proceeds on the assumption that it is lawful for a local education authority to name the school preferred by the child’s parents on condition that they agree to meet all or part of the transport costs and in my view a conditional nomination of that kind is consistent with the statutory provisions, provided that the authority also complies with its obligation to specify the type of school or, if it considers it appropriate to do so, the specific school, which it considers to be suitable for the child. I think it is important to read whatever the authority has said in Part 4 as a whole in order to see whether it has set out its conclusions with sufficient clarity so that, if necessary, they can be challenged before the Special Educational Needs and Disability Tribunal (“the Tribunal”) under section 326.

Although Part 4 of D’s statement could have been more happily worded, I think the council’s conclusions are clear enough: it was willing to nominate WPS as the school D was to attend, that being his parents’ preferred placement, if, but only if, they accepted responsibility for transport because there were other schools of a specified type that could meet his needs closer to his home. In effect, the nomination of WPS was conditional upon his parents’ taking responsibility for getting him to and from school, failing which the council confined itself to specifying the type of school – mainstream primary –it considered would be appropriate for him. I am unable to accept Mr. Wise’s submission that what the council said in Part 4 was insufficient to comply with section 324(4)(a).

Mr. Wise submitted, however, that it did not comply with section 324(4)(b) because the council failed to name at least one other mainstream primary school. In my view that argument is both inconsistent with the language of the subsection and contrary to authority. In Richardson v Solihull Metropolitan Borough Council [1998] ELR 319 this court had to consider whether the Tribunal had erred in law in failing to name a specific school in Part 4 of a child’s statement in circumstances where the parents had expressed a preference for him to attend a particular school in the United States which the local education authority said would be incompatible with the efficient use of resources. All three members of the court (Beldam, Peter Gibson and Schiemann L.JJ.) held that it had not because, unless schedule 27 provided otherwise, section 324(4)(b) obliged the local education authority (and therefore the Tribunal) to name a specific school only if it considered that it should do so. That was held to follow from the language of the subsection which imposed two qualifications on the duty to name a school: the first, that the authority considers that it is suitable for the child; the second, that it considers that a specific school should be specified.

Schiemann L.J. explained the policy behind these provisions in terms which are relevant to the circumstances of the present case (at page 340C):

“There are, I accept, a number of circumstances in which it is desirable to have the name of a school specified in a statement, but in my judgment it will not necessarily always be desirable. I take some examples from Mr Kerr although these need not be regarded as exhaustive. Where the child is being excellently educated at home or where the parents are about to move to another part of the country or abroad there seems little point in the LEA spending time and money in identifying a local school. The position in relation to the availability of places may be changing daily just at the crucial time for the finalising of the statement. There may be cases (perhaps one such is before us) where the parent is resisting all solutions other than local authority financing of education at a non-maintained school but the LEA is in a position to suggest a number of suitable schools. In such cases, once it has been decided beyond the possibility of appeal that the specification of the parent’s school of choice in the statement will not take place, the parent may be willing to discuss fruitfully with the LEA which of the remaining options is most attractive to the parent. Specifying a school in a statement will not in general be reasonably possible until that school has been consulted and it is clear that there will be a place for the child. This may involve the paying of a reservation fee. To do so may well not be a sensible course for a LEA to pursue when other possibilities remain to be discussed.”

Despite Mr. Wise’s submission to the contrary, I am satisfied that the decision of the court in Richardson v Solihull as to the construction and effect of section 324(4)(b) is binding on us since it was essential to the determination of the appeal in that case. However, I would also say, with respect, that in my view it is clearly correct. Moreover, the decision is binding authority for the proposition that the local education authority is not obliged to specify a school by name if the parents have expressed a preference, a conclusion which again, in my respectful opinion, follows from the wording of the Act.

Section 324(4)(b) is concerned with specifying the name of the school which the local education authority considers to be suitable for the child’s needs. By section 9 and schedule 27 priority is given to parental choice, but ultimately parental choice gives way to the efficient use of resources. The natural meaning of subsections (3) and (4) of section 324 is that if the child’s parents have not expressed a preference, the authority must specify the type of school it considers to be suitable for the child and may also specify a particular school by name, but only if it considers it should do so. If the child’s parents have expressed a preference, the authority must specify that school by name unless the child’s attendance would be incompatible with the efficient use of resources. In those circumstances the parents’ preference must be disregarded and I can see nothing in the language of the statute to suggest that in those circumstances the authority is obliged to specify an alternative school by name, any more than would have been the case if the parents had not expressed a preference in the first place.

Mr. Wise submitted, however, that the statutory scheme would not operate correctly in a case such as the present if the council were free not to specify an alternative school by name since the fact that the only school named in the statement was the school of their choice would prevent the child’s parents from mounting an appeal to the Tribunal (transport being a matter outside the scope of its jurisdiction). In my view that is not correct. If, as I think, Part 4 of D’s statement is to be understood as containing a statement by the council that it considered WPS to be suitable for D, but was willing to specify it as the school he should attend if, but only if, his parents undertook responsibility for transport, failing which it would make provision for him at another mainstream primary school, the failure of D’s parents to accept responsibility for transport would entitle the council to make such alternative provision. One would expect that they would then discuss with the council which of the mainstream primary schools they would like him to attend and in the absence of agreement either the council would nominate a school or it would not. In any event, however, D’s parents could appeal to the Tribunal against Part 4 of the existing statement under section 326(1A) of the Act on the basis that WPS was the nearest school suitable for his needs and that the statement should therefore contain no reference to other mainstream schools.

Finally, it is necessary to refer to the case of R v Islington London Borough Council ex parte G.A. (Mr. Jack Beatson Q.C., unreported, 8^th September 2000) on which Mr. Wise placed some reliance. In that case the parents of G.A., whose educational needs were being assessed by the local education authority, asked that he be placed at R.L. school. The authority did not consider that such a placement would constitute an efficient use of resources because of the need for transport and because it thought that G.A.’s special needs could be met at one or other of two local schools, H and W. However, it agreed to a placement at the school of the parents’ choice on the basis that they provided all the necessary transport. In the event neither R.L. nor W was able to make a place available to G.A., but after further discussions a place was found for him at another school with which his parents were satisfied and that school alone was named in the statement. Once again, however, the authority declined to pay for transport because it considered that the remaining local school, H, was suitable for him.

After G.A. had been at his new school for some time a deterioration in his own health and that of his mother, who was taking him to and from school, led his parents to ask the local education authority to provide transport. It refused to do so, pointing out that it had only agreed to name the school because they had agreed to be responsible for transport. The parents therefore sought judicial review of the authority’s decision on the grounds that it had failed when reaching its decision to consider whether the arrangements they had made for non-educational provision (i.e. transport) remained suitable, as required by section 324(5)(a)(ii) of the Act. The Deputy Judge held that the challenge was well-founded, but he pointed out that the authority could have protected its position by naming H as an alternative school. He said:

“27.

There was in fact a way in which the authority could have sought to protect its position. There is no reason why more than one school should not be specified in a statement if, in the view of the education authority, more than one school would equally answer the child’s needs. This was done in Re C [1994] ELR 272, where the second school named was the one the child’s parents preferred, which the authority agreed to include on the basis that the parents were to be responsible for all travelling expenses and arrangements. It was not done in the present case. Had [H] been named as the authority’s preferred school and [the school] named as the school G.A.’s parents preferred which the authority only agreed to include on the basis that the parents were to be responsible for travelling expenses, the authority could satisfy its duty under section 324(5)(a)(i) by making arrangements for attendance at either school. But the parents would, had that been done, [have] had a right of appeal against the naming of [H school], whereas, as noted, they had no right of appeal against the requirement that they bear the cost of transport. . . . .

28.

I have concluded that in this respect there is no material difference between section 509 and section 324(5)(a)(ii), and the authority, in taking account of its belief that G.A.’s needs could be met at a local school not named in the statement, took into account an irrelevant consideration and applied the wrong legal test.”

Mr. Wise submitted that this passage supported his argument that in this case the council was obliged to name a specific school as an alternative to WPS if it wished to name WPS on a conditional basis. However, I do not think it does. If the Deputy Judge was intending to say that a local education authority can protect its position only by naming an alternative school, I think, with respect, he was wrong, but that is not how I understand his judgment which must be read in the light of the material before the court. In the case before him H was the only other school capable of meeting G.A.’s needs, so it was quite natural for the Deputy Judge to approach the problem on the basis that if the authority wanted to rely on the existence of an alternative school it had to name H. Since no other school had been identified in the statement, the authority could not properly take it into consideration. However, the Deputy Judge was not directing his mind to a case such as the present in which the authority included in the statement its conclusion that there were other schools of a particular type nearer the child’s home which it considered to be suitable for his needs.

For the reasons I have given I think that the council was entitled to express its conclusions as it did and was entitled to refuse to provide transport to enable D to attend WPS. I would therefore allow the appeal.

I agree.

I also agree.