Hill, R (on the application of) v Bedfordshire County Council

Martin Hill, to whom I shall refer as “Martin”, was born on May 29, 1988. His parents are Lawrence Hill and Paula Hill and they reside with Martin at 6, Wheatlands Close, Maulden, Bedfordshire. Throughout his childhood Martin has had special educational needs. He suffers from Asperger’s Syndrome although he has high cognitive abilities.

Bedfordshire County Council (“the Authority”) has been the local authority responsible for issuing a statement of Martin’s special educational needs. In 2003 and 2004 there was a disagreement about the school which should be named in the statement of special educational needs as the school which was to provide for Martin’s education. Following an appeal to the Special Educational Needs and Disability Tribunal (“the SENDIST”), Cademuir International School (“Cademuir”), in Scotland, was named as the school which was suitable to meet Martin’s needs.

Martin began his studies at Cademuir on January 12, 2004. He remained at that school for the remainder of the academic year, and studied there in the academic years 2004/2005 and 2005/2006. It was anticipated both by Martin and his parents, and the Authority, that he would continue to study at Cademuir during the academic year 2006/2007 and he would leave in the summer of 2007, shortly after he had reached his 19^th birthday. But in early May 2006 (a few weeks before Martin’s 18^th birthday) his parents (and the Authority) were informed that Cademuir was closing because the company which controlled it was going into liquidation.

Martin’s parents then identified Elmwood College (“Elmwood”) in Scotland as the institution for Martin’s education until he was 19. These proceedings have arisen because the Authority took the view that Martin’s statement of special educational needs would lapse if he moved into residence at Elmwood since it was a further education college rather than a school, and because the Authority took the view that it could not fund the placement under the Education Act 1996 and would not exercise its discretionary power under the Local Government Act 2000 to do so.

The position of the parties leading up to the proceedings cannot be understood without an explanation of the legislative background.

Section 15A gives a local education authority in England power to secure “for their area” the provision of full-time education suitable to the requirements of persons over compulsory school age who have not yet attained the age of 19, “including provision for persons from other areas.” See also section 15A(3).

Part IV of the 1996 Act contains, in Chapter 1, provision for children with special educational needs.

Section 312(5) contains the following definition of “child” (for the purposes of Part IV of the 1996 Act)

“child” includes any person who has not attained the age of 19 and is a registered pupil at a school.

By section 313 the Secretary of State is to issue a code of practice giving practical guidance in respect of the discharge by local authorities of their functions under Part IV of the 1996 Act, and it is the duty of local education authorities to have regard to the provisions of the code.

Paragraph 8:121 of the code provides:

“A statement will generally remain in force until and unless the LEA ceases to maintain it. A statement will lapse automatically when a young person moves into further or higher education. Therefore, if the young person, the parents, the LEA and the further education institution are all in agreement about the young person’s transfer, there is no need to formally cease the statement since the young person will cease to be a pupil for whom the LEA is responsible after leaving school, and so the statement will lapse.”

Section 320(1) gives a local education authority power to fund attendance at an institution outside England:

“A local education authority may make such arrangements as they think fit to enable a child for whom they maintain a statement under section 324 to attend an institution outside England and Wales which specialises in providing for children with special needs.”

Section 321(3) provides for cases where the local education authority is responsible for a child:

“For the purposes of this Part a local education authority are responsible for achild if he is in their area and –

(a)

he is a registered pupil at a maintained school,

(b)

education is provided for him at a school which is not a maintained school but is so provided at the expense of the authority,

(c ) he does not come within paragraph (a) or (b) above but is a registered pupil at a school and has been brought to the authority’s attention as having or probably having special educational needs, or

(d)

he is not a registered pupil at a school but is not under the age of 2 or over the compulsory school age and has been brought to their attention as having or probably having special educational needs.”

Sections 323 and 324 deal with the statement of special educational needs. By section 323:

“(1)

Where a local education authority are of the opinion that a child for whom they are responsible falls, or probably falls, within subsection (2), they shall serve a notice on the child’s parent informing him –

(a)

that they [are considering whether] to make an assessment of the child’s educational needs,

(b)

of the procedure to be followed in making the assessment,

(c)

of the name of the officer of the authority from whom further information may be obtained, and

(d)

of the parent’s right to make representations, and submit written evidence, to the authority within such period (which must not be less than 29 days beginning with the date on which the notice is served) as may be specified in the notice.

(2)

A child falls within this subsection if –

(a)

he has special educational needs, and

(b)

it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for.

…”

Section 324 provides as follows:-

“(1)

If, in the light of an assessment made under section 323 of any child’s educational needs and of any representations made by the child’s parents in pursuance of Schedule 27, it is necessary for the local education authority to determine the special educational provision which any learning difficulty he may have calls for, the authority shall make and maintain a statement of his special educational needs.”

By virtue of section 324(7), schedule 27 of the Act is to have effect in relation to the making and maintenance of statements under the section.

Section 326 deals with appeals to the SENDIST against the contents of a statement. It is not directly relevant but it should be noted that it is implicit in section 326(4) that the SENDIST only orders the Authority to name a particular school if the parents have expressed a preference for it, or the parents or the local education authority (or both) have proposed the school.

By paragraph 9 of schedule 27:

“(1)

a local education authority may not … cease to maintain, a statement except in accordance with paragraph … 11.

(2)

Sub-paragraph (1) does not apply where the local education authority – (a) cease to maintain a statement for a child who has ceased to be a child for whom they are responsible …”

Paragraph 11 provides

“(1)

A local education authority may cease to maintain a statement only if it is no longer necessary to maintain it.

(2)

Where the local education authority determine to cease to maintain a statement –

(a)

they shall give notice in writing of that fact to the parent of the child, and

(b)

the parent of the child may appeal to the Tribunal against the determination.

(2A) A notice under sub-paragraph (2)(a) must inform the parent of the right of appeal under sub-paragraph (2)(b) and contain such other information as may be prescribed.”

The powers of the SENDIST on such an appeal are set out in paragraph 11(3) of schedule 27. It may dismiss the appeal, or it may order the local education authority to continue to maintain the statement in its existing form or with such amendments as it may determine of the description in the statement of the authority’s assessment of the child’s special educational needs or the special educational provision specified in the statement.

Section 140 of the Learning and Skills Act 2000 requires the Secretary of State to arrange for an assessment of the educational and training needs, and the provision required to meet those needs, of a person who will leave school at the end of his last year of compulsory schooling to receive post-16 education or training of the sort to which section 2 of the Act refers. Section 140 empowers the Secretary of State to arrange an assessment of the same sort for a person who is over compulsory school age but below the age of 25, who has a learning difficulty within the meaning of section 13 of the Act, and who is receiving post-16 education or training of the sort to which section 2 refers.

The Local Government Act 2000, section 2, gives every local authority very wide powers. They include the power to do anything which it considers is likely to achieve the promotion or improvement of the social wellbeing of its area; the power may be exercised in relation to or for the benefit of all or any person resident or present in a local authority’s area; and the power includes power to incur expenditure, give financial assistance to any person, and provide services to any person.

I have set out the background in section I. After Martin’s parents and the Authority were informed of the closure of Cademuir, Martin’s parents wrote on May 9, 2006 to the Authority to request a meeting with an appropriate officer to determine Martin’s “continued education and support of his special educational requirement.”

On May 11, 2006 Ms Boyd, of the Authority, telephoned Martin’s father and recommended that he should contact Connexions, which is a service established under the Learning and Skills Act 2000 to help young people make informed choices about their future. It also provides support for young people up to the age of 25 who have learning disabilities.

On May 12, 2006 Mr Hill confirmed their conversation and recorded that they had discussed the fact that it would not be ideal for Martin to change to a local school, because he had been following a Scottish exam curriculum. Mr Hill said that he would continue to explore with the Authority the option of Martin remaining at a school in Scotland.

On June 8, 2006 the Authority wrote to Martin’s parents indicating that it had reviewed Martin’s special educational needs, and informed them that Martin’s statement of needs was appropriate and should continue to be maintained with no amendments. As the judge said, that was surprising, since, by then, the Authority knew that Cademuir was to close. It seems to have been a standard letter prepared by an officer of the Authority without knowledge of the facts.

On July 11, 2006 Martin’s parents wrote to the Authority to say that they had located a suitable establishment for Martin to attend. The letter said:

“As you are aware from both the school and ourselves, Cademuir School, that Martin was attending, has closed. We have, in the meantime, and with your knowledge and agreement, been investigating all alternative schools and colleges in Scotland, which are able to support Martin and maintain this current Scottish education regime.

Martin has now visited all the options which we have researched and he has expressed his opinion as to Elmwood College Cupar, as being the most suitable for him. They, in turn, have made a conditional offer based on Martin’s exams results being a minimum four passes at Standard Grade, inclusive of English. These examination results are expected to be known on the 8^th of August 2006, from SQA.

The new college term/year commences on Monday 4^th September 2006 with arrivals being on the Sunday. This means there will only be one month between knowing the examination results and the new term start.

I would, therefore, ask the Council to agree the ongoing funding, by the end of July 2006, in line with their letter to Cademuir School, 6^th February 2006. Obviously it will be based on the conditional element, inserted by Elmwood, for the appropriate level of examination results being satisfied.

Elmwood have reviewed Martin’s current Statement of SEN, his previous school reports and the information provided by the SENCo from Cademuir.

They have constructed a package of support based on the needs, as they believe necessary to meet those needs…

The cost of the above package is £35,139.36 …”

On August 2, 2006 Martin’s parents wrote to the Authority seeking a reply and indicating that in the absence of a reply within five working days they would proceed on the basis that the Authority had accepted Elmwood and funding would be met.

On August 10, 2006 the Authority informed Martin’s parents that Elmwood was not a school but a college of further education. Ms Boyd wrote:

“Also this week I have contacted the DfES for advice as it is my understanding that in England, when students go on to Further Education (FE) colleges their Statements of Special Educational Needs cease to be maintained by the Local Authority. FE Colleges are funded through a different mechanism to schools by the Learning and Skills Council. The DfES promised to investigate the situation but I have not heard back from them yet. I will contact them again in the middle of next week when I am back in the office next if no reply is forthcoming by Wednesday 16 August”

On August 22, 2006 Mr Hill informed Ms Boyd that the Authority had to give formal notice of intention to “to cease the Statement [of Special Needs] which you have not done” and also give him the right to appeal to SENDIST. He made a similar point in a letter of August 23, 2006.

On August 24, 2006 the Authority wrote to Martin’s parents informing them that it was the Authority’s view that Martin’s statement of special educational needs would lapse automatically if he moved into residence at Elmwood since it was a Further Education College rather than a school. The Authority also expressed the view that since Martin had passed his 18^th birthday he would cease to be a child for whom the Authority was responsible and the Authority could no longer maintain a statement in respect of him.

Mr Hill wrote on September 1, 2006 to the Authority:

“On the basis that you have known of Elmwood as Martin’s chosen place of study, which you have declined to support, you have not offered any suitable alternative place where Martin can complete his courses, thereby denying him his education. It has already been agreed by you that the Colleges in Bedfordshire cannot provide the curriculum Martin is currently taking i.e. Scottish SQA’s Intermediates and Highers.

You have an obligation, after agreeing that his Statement needs to continue… What do you propose to do about the situation? You cannot do nothing. I expect your reply in the next 24 hrs”

On September 8, 2006 the Authority wrote:

“… The position of the Local Authority is that if Martin had remained at Cademuir International School we would have continued to support him, as identified in his statement, to complete his course of study at the school. It is pleasing to note on the information you have provided that Martin was able to complete all those courses he has started at the school. If another school is requested or identified, that would meet his needs as outlined in his statement and at a similar cost, we could amend Martin’s statement and provide funding for a further year until Martin is 19. The Authority has not proposed to cease Martin’s statement. However, the provision you have identified is not a school and we have no statutory powers to fund FE colleges. Our legal advice and the DfES have confirmed this and a meeting could not change the LA’s stance on this. However, we would be happy to meet with you to discuss alternative school options for Martin’s education.

…

There is close collaboration between the Local Authority and the LSC and a member of the Assessment and Monitoring Team attends these regular panels. The extracts you provide in your letter indicate that, as we have stated, it is the LSC’s responsibility to fund such a place in an FE establishment. The normal procedure would be that the Connexions advisor brings cases to this panel for discussion once parents and the young person have expressed a preference for a particular college.

We therefore understand the options to be:

For another school that could meet Martin’s needs to be identified until he is 19.

For LSC (Learning Skills Council) to be approached to fund your choice of FE college.

For Martin to attend a local college placement.

For Martin to work with Connexions service to support him in entering the world of work.”

Mr Hill replied on September 11, 2006 to say that there appeared to be a conflict in the positions taken by the Authority in its letters of August 24, 2006 and September 8, 2006. He suggested that in the first letter the Authority was “lapsing the [statement] and in the other you are not,” and sought clarification.

On September 14, 2006, the Authority said that the statement of special educational needs would lapse if Martin was placed at Elmwood as this was not a school, and that “the Statement has not ‘ceased’ within the meaning of the Education Act 1996.”

On the same day Mr Hill wrote to say:

“I do agree if my Son were in England attending an English College of Further Education that the Learning Skills Act 2000 would apply, as would the Education Act with the appropriate clauses for Higher Education. However, the Learning and Skills Act of 2000 makes specific reference to exclude Higher Education and it is my contention that you are not applying correct Sections of the Act in the case of my Son.”

He also said that he had spoken to the Scottish Executive Education Unit and been told that:

“Elmwood [was] a school for the purpose of Scottish Highers and Higher National Certificates… This is because in Scotland, under Scottish law the definition of the College is determined by the Course the student is following. Therefore it is my contention that whilst you have stated your case on the basis of English law, made the fundamental error of not accepting that the definition is determined under Scottish law… It is the Scottish law that applies to Elmwood and under those laws and working practices Elmwood has been defined to us as a school.”

There was a meeting on September 22, 2006 attended by Martin’s parents, various Authority officers, including Ms Pace (Deputy Director, Children’s Services) and the Division Manager at Connexions. The purpose of the meeting was to explore the options in the Authority’s letter of September 8, 2006.

Mr Hill’s evidence was that Martin’s parents understood that at the meeting there would be discussion of whether Elmwood was a school and whether, if the Authority refused to name Elmwood on the statement, another “school” could be identified to meet Martin’s needs. His evidence was that at the meeting, when he asked the Authority whether they were going to name a school or type of school in Part 4 of the statement of educational needs, its position was that they would not do that. The emails exchanged makes it clear that what Mr Hill wanted was that the Authority, if it did not agree that Elmwood should be included on the statement, should name another school so that he could appeal the decision.

On September 25, 2006 Martin started at Elmwood, funded by his parents.

On September 28, 2006 Mr John Atkinson, the Authority’s Head of Legal Services, wrote to Martin’s parents to say:

“… My understanding is that your difference of opinion with the Council is not about whether Martin qualifies for support under the [the Education (Student Support) Regulations 2006], but rather whether the Council is obliged to name Elmwood in Martin’s Statement of Special Educational Needs in place of Cademuir International School and meet the full cost of Martin’s education and accommodation at the College during the forthcoming academic year.

Martin is now 18. He is no longer a registered pupil at the school and he is not therefore a child for whom the local educational authority is responsible under section 321 of Education Act 1996.

You have pointed out that when the SENDIST directed the Council to specify Cademuir International School in Martin’s Statement, they commented favourably on the fact that Martin would be able to remain at the school until he was 19 years old and this would provide him with consistency of post-16 education and would assist in making up the educational deficit that Martin had experienced at that date. Unfortunately, Cademuir closed in July 2006 and thus he was unable to remain at the school for a further year. The Tribunal’s comment did not impose an obligation on the Council to make provision for Martin up to the age of 19 in circumstances where he was no longer attending Cademuir International School.

Once a young person is over compulsory school age and leaves school, then responsibility for his special educational needs passes to the Connexions Service and the Learning and Skills Council……

As I understand it, a further point that requires clarification is the nature of Elmwood College, whether it is a college of further education or whether it is (or could be treated as though it were) a school for the purpose of Martin’s education there

… I have set out the statutory provision above and I am satisfied on this basis that Elmwood College is not a school. As far as Martin’s future education is concerned, I am also of the view that this is not now the responsibility of the Council as local educational authority, though I accept that, if and when he enrols on a course of higher education, he may be eligible for a student loan under the Education (Students Support) Regulations 2006 and that the LEA administer this process.

In short, my view of the position is when Martin left Cademuir International School at the age of 18 the Council’s responsibility to maintain a statement of special educational needs for him came to an end. Responsibility for his future education and special needs passed to the Learning and Skills Council and Connexions.

The procedure for ceasing to maintain a Statement is set out in paragraph 11 of the Education Act 1996, but this procedure does not apply where the local educational authority ceased to maintain a statement for a child who has ceased to be a child for whom they are responsible. In this situation, the LEA can cease to maintain a Statement under paragraph 9 of the Schedule 27 of the Education Act 1996 and there is no right of appeal to the SENDIST.”

On October 23, 2006 Mr Hill wrote to the Area Director, Learning and Skills Council (“the LSC”), to say that an official of the Bedfordshire LSC had informed him that no Scottish establishments were included in the list of institutions funded by the LSC and that therefore no placements in such institutions would be funded. Mr Hill asked the Area Director to confirm this.

On November 24, 2006 the LSC replied to Mr Hill’s query to say that the LSC could only fund provision for a pupil in Scotland where it had been demonstrated that local provision could not meet the pupil’s needs. The LSC could only fund providers listed in its funding guidance, which Elmwood was not. The letter continued:

“The LSC will consider the approval of new providers, where it can be demonstrated that they can contribute to the local and regional LSC priorities. However, the LSC’s new provider approval process can take up to 10 months to complete and does not necessarily result in a positive outcome. The purpose of this approval process is to ensure that providers, which the LSC funds, deliver education which is of adequate quality to meet learner needs.”

On December 4, 2006 Martin’s solicitors wrote a letter before action. The first issue identified was whether or not the Authority had statutory power or authority to fund provisions at Elmwood. The second issue related to whether the statement of special educational needs had “lapsed” when Martin began his studies at Elmwood. In relation to both issues the letter suggested that the Authority’s stance was unlawful. The letter went on to specify that it expected the Authority:

“a.

To make a decision, setting out full reasons, whether or not to fund Martin at Elmwood College using the powers as set out in the Education Act 1996, section 15A and the Local Government Act 2000 under section 2.

b.

Confirm that Martin’s statement has not lapsed and put in place the provision which should be made for him.”

In its response of December 19, 2006, to the letter before action, the Authority acknowledged that it had not considered whether it should exercise its discretion under either section 15A of the Education Act 1996 or section 2 of the Local Government Act 2000 so as to enable it to pay for Martin’s education at Elmwood.

It said:

“Section 2 of the Learning and Skills Act 2000 imposes a duty on the LSC to secure the provision of proper facilities for education suitable to the requirements of persons who are above compulsory school age but have not attained the ago of 19. In performing this duty, the LSC must inter alia take account of the different abilities and aptitudes of different persons. Furthermore, section 13 of the Learning and Skills Act 2000 provides that in discharging its functions under section 2, the LSC must have regard to the needs of persons with learning difficulties.

The Council is prepared to review the position and consider whether, in spite of the duties imposed on the LSC as outlined above, it should exercise its discretion to provide financial support towards the costs of Martin’s placement at Elmwood College.

In order that it may give proper consideration to this matter, the Council would like to obtain information from Connexions about the discussions that took place between Martin, his parents and Connexions about the opportunities that were available for Martin in further education and the support that could be provided for him by Connexions. In that regard, Connexions have informed the Council that they cannot share any information with us without Martin’s consent. Please would you consult your client and secure his consent to Connexions providing full disclosure to the Council in order that we can consider whether the Council should provide financial support for his placement at Elmwood College.”

So far as the issue of a statement of special educational needs was concerned, in summary, the Authority’s stance was that the effect of section 321(3) and paragraph 11 of schedule 27, Education Act 1996, was that the Authority could cease to maintain the statement without giving notice to Martin’s parents. The Authority also said that there was no right of appeal to the Tribunal.

On February 2, 2007 the Authority wrote to Martin’s solicitors in response to their letter of January 26, 2007, which is not in the papers, but which was summarised as having said that it was wholly inappropriate for the Authority to suggest that an assessment should be sought under section 140 of the Learning and Skills Act 2000. The Authority replied that the fact that Connexions would not currently expect to carry out an assessment under section 140 for about 10 months did not alter the fact that the LSC was probably under a duty to make appropriate provision if what Martin was receiving was education of the sort to which section 2 of the Learning and Skills Act 2000 referred, and the Authority needed to know what the LSC intended to do in relation to Martin’s education before the Authority could sensibly consider what (if anything) it needed to do in relation to his education.

On February 16, 2007 Martin’s solicitors replied to say that the suggestion that Martin should request an assessment under section 140 had no bearing on the Authority’s power to exercise its discretion to fund a placement at Elmwood. The solicitors said that the LSC expected the process of approving Elmwood for the purpose of funding a placement to take about 10 months, which was clearly going to affect its ability to make either an assessment under section 140 or make appropriate provision for Martin. It was unreasonable to expect Martin to request a section 140 assessment.

On March 21, 2007 the Authority wrote to Martin’s solicitors to inform them that the Deputy Director of Children’s Services, Ms Pace, had reviewed the position about whether or not the Authority was empowered to finance Martin’s education at Elmwood and if so, whether it should do so. The letter went on to inform Martin’s solicitors that the Authority was satisfied that there was a discretionary power under section 2 of the Local Government Act 2000 to fund the placement, but that it had also decided that it would not be appropriate to exercise the power in favour of funding the placement. The Authority considered that the primary responsibility for the provision of further education for persons with special educational needs lay with the LSC, as set out in its letter of February 2, 2007. The letter went on:

“It is apparent that there were suitable courses available to Martin locally which could have met his needs and at a lower cost. It does not appear that it was necessary for Martin to attend at a Further Education college in Scotland in order to pursue his course of studies.

It appears from the contact that Mr Hill had with Connexions that there was no evidence that Mr Hill required Connexions to undertake a Section 140 assessment under the Learning and Skills Act 2000. Mr Hill and Martin were clearly signposted by the Local Authority (see the statement of Diane Boyd dated 7.2.07) to Connexions who gave them advice and guidance. It does not appear that Mr Hill approached the LSC to fund Martin’s placement and the Local Authority considers that that is what he should have done.”

The judicial review claim form was issued on December 20, 2006. It sought an urgent determination, as funding and provision for Martin’s educational needs needed to be resolved as soon as possible. It was said that the Authority had failed to consider exercising its powers as to whether or not to fund Martin’s placement at a further education college and failed to ensure the proper continuation of his statement of special educational needs. The first ground was that the Authority had suggested that it did not have the power to fund a place for Martin at Elmwood. That was an error of law, since the Authority did have such a power and had unlawfully failed to consider its exercise.

The second ground was that the Authority purportedly ceased to maintain Martin’s statement of special educational needs on September 25, 2006 without giving his parents a right of appeal against the decision and without determining whether adequate provision was going to be made for Martin if the statement ceased to be maintained. In its acknowledgment of service the Authority maintained that no live issue existed in relation to the first ground since it had agreed to review whether or not it should exercise its discretion to fund Martin’s placement at Elmwood. Dobbs J considered the application for permission on January 29, 2007, and took the view that the first ground fell away in the light of the Authority’s willingness to consider exercising its discretion to fund Martin’s place at Elmwood. The application for permission on the second ground was adjourned for a hearing with a substantive hearing to follow if permission was granted. Following the letter of March 21, 2007 the first ground was amended to assert that the Authority had continued to act unlawfully in failing to appreciate the extent of the powers open to it to fund Martin’s placement, and the decision to refuse to exercise its powers communicated in the letter of March 21, 2007 was itself unlawful.

The matter first came before Wynn Williams J on April 30, 2007, and at the end of the oral hearing the case was adjourned for the parties to put in further documentation, and the parties also made written submissions on the effect of the decision in Wolverhampton City Council v Special Educational Needs and Disability Tribunal[2007] EWHC 1117 (Admin), [2007] ELR 418, which had been decided on May 14, 2007. The submissions were received by the judge in early July 2007 and he gave judgment on November 2, 2007.

There are two main issues on the appeal. The first issue in the end came down to whether the judge was right to find that the letter of March 21, 2007 contained a material error of fact in stating that “it does not appear that Mr Hill approached the LSC to fund Martin’s placement and the Local Authority considers that that is what he should have done”, and, if so, the effect of that error.

The second issue is whether (as the Authority maintains) the statement of special needs had lapsed or (as was maintained on behalf of Martin) the Authority was under a duty to give notice to Martin’s parents that it had determine to cease to maintain the statement of special educational needs and that they had a right of appeal.

It was common ground that section 2 of the Local Government Act 2000 conferred upon the Authority the power to pay for Martin’s education at Elmwood.

Before the judge, the argument on behalf of Martin was that the Authority’s decision to decline to exercise its power under section 2 Act in favour of Martin was based upon an error of fact, and that it involved a failure to take into account a relevant fact and/or involved the taking into account of an irrelevant fact.

The judge recorded that when the Authority made its decision it had before it the witness statement of Mr Lawrence Hill dated December 15, 2006, in which he said that: (a) in May 2006 Connexions agreed that Martin should continue his education in Scotland if education was to continue, and provided Mr Hill with a book and list of schools and colleges in Scotland to help with finding a suitable establishment; (b) he had a meeting with Connexions on September 22, 2006; (c) prior to that, on September 15, 2006 Mrs Hill contacted the LSC and asked whether or not it could provide funding for Martin’s placement at Elmwood; (d) there followed a number of telephone calls and on September 28, 2006 Mr Swan, an employee of the LSC, sent an email to Martin’s parents detailing funding possibilities; (e) on October 23, 2006 a further enquiry was made of the LSC which resulted in a response dated November 24, 2006, which demonstrated clearly that Martin’s parents had enquired of the LSC whether it would fund Martin’s placement, and also made clear that any decision upon whether to fund Martin’s placement would be likely to take a significant period of time.

The judge found that in the light of the contents of that letter it was extremely difficult to see how the Authority could have asserted in the letter of March 21, 2007 that “it does not appear that Mr Hill approached the LSC to fund Martin’s placement and the local authority considers that that is what he should have done.”

In a witness statement Ms Pace said that she could not recall whether she had seen the letter from the LSC dated November 24, 2006 when she approved the terms of the decision letter. But she said that she had seen a letter dated February 16, 2007 from Martin’s solicitors, which contained the information that the LSC expected that the process of approving the funding of the placement at Elmwood would take about ten months. She said that she was fully aware of that information when she made her decision. Notwithstanding the 10 month timescale she took the view that the Authority should not fund the placement. She relied on a fax received by the Authority from Connexions sent on or about February 5,2006 which made it clear that no assessment under section 140 of the Learning and Skills Act 2000 was sought or carried out. On that basis Ms Pace said that she reached the conclusion that there had been no formal approach to the LSC by Martin’s parents.

The judge found that despite the evidence of Ms Pace as to her understanding it could not be asserted on behalf of the Authority in its decision letter of March 21, 2007 that Mr Hill had not approached the LSC with a view to funding the placement at Elmwood. On any sensible reading of the letter of November 24, 2006 Mr Hill had made such an approach and it was clear from the letter that there would be very significant difficulties of obtaining funding for a placement at Elmwood for the academic year 2006/2007 from the LSC. Any decision maker who read that letter would reach such a conclusion.

The judge accepted that Ms Pace considered that she had in mind the fact that the LSC was likely to take a substantial period of time in reaching its decision when she reached her decision upon which the letter of March 21, 2007 was based. But he said that there was nothing in the letter of March 21, 2007 which even hinted that such was the case and the language of the letter suggested the contrary. The Authority’s decision as communicated on March 21, 2007 proceeded upon a material error of fact. It was an important error in the sense that he could not possibly say that the decision would have been the same had the error not been made. The judge rejected the Authority’s submission that he had no option but to accept the evidence of Ms Pace that the mistake was not material. He was not bound to accept the contents of statements made by witnesses some time after a decision has been made to explain the factors taken into account in the decision making process when the written decision impugned and the written reasons given for it in the same document are not consistent with the contents of the witness statement. That being the case, there was no dispute but that the decision was susceptible to being quashed.

On this appeal the Authority argued, first, that the judge erred in refusing to accept the evidence of Ms Pace that in making that decision she was aware that Martin’s parents had contacted the LSC and that the latter had made it clear that it would take about 10 months to consider whether or not Martin’s parents’ (and apparently Martin’s) preferred educational institution, Elmwood, should be included on the LSC’s register of specialist institutions outside England and Wales; and, second, that in any event there was no mistake of fact.

The parties presented this court with a body of authority on the extent to which evidence was admissible from decision makers on an application for judicial review in a number of contexts, but it seems to me that this part of the appeal can be disposed of on a very short ground, which is that it is clear from reading of the correspondence there was no mistake.

The relevant paragraph of the decision letter of March 21, 2007 ended:

“It does not appear that Mr Hill approached the LSC to fund Martin’s placement and the Local Authority considers that that is what he should have done.”

That passage must be read in the context of previous correspondence. On September 8, 2006 the Authority had written to emphasise that it was “the LSC’s responsibility to fund such a place in an FE establishment” and then indicated that one of the options was for “LSC …to be approached to fund your choice of FE College.”

Mr Hill’s letter of October 23, 2006 to the Area Director, LSC, was an enquiry about whether Scottish establishments were included in the list of institutions funded by the LSC. The response confirmed that Elmwood was not listed among the providers listed in its funding guidance; that the LSC could only fund provision for a pupil in Scotland where it had been demonstrated that local provision could not meet the pupil’s needs; that the LSC would consider the approval of new providers, where it could be demonstrated that they can contribute to the local and regional LSC priorities; but that the approval process might take up to 10 months to complete.

In its response of December 19, 2006, to the letter before action, the Authority repeated what it had said about the LSC, but also said that it was prepared to consider whether it should exercise its own discretion under section 2 of the Local Government Act 2000 to provide financial support, but that it needed to know about the discussions which had taken place between Martin, his parents and Connexions (i.e. the LSC) about the opportunities that were available for Martin in further education and the support that could be provided for him by Connexions.

On February 2, 2007 the Authority wrote to Martin’s solicitors to say that the fact that Connexions would not currently expect to carry out an assessment under section 140 for about 10 months did not alter the fact that the LSC was probably under a duty to make appropriate provision if what Martin was receiving was education of the sort to which section 2 of the Learning and Skills Act 2000 referred, and the Authority needed to know what the LSC intended to do in relation to Martin’s education before the Authority could sensibly consider what (if anything) it needed to do in relation to his education.

On February 16, 2007 the solicitors replied to say that the suggestion that Martin should request an assessment under section 140 had no bearing on the Authority’s power to exercise its discretion to fund a placement at Elmwood, and that it was unreasonable to expect Martin to request a section 140 assessment.

In the light of this correspondence it cannot be reasonably suggested that the Authority meant that no approach of any kind had been made to the LSC. What the Authority was plainly saying, and the correspondence with the solicitors makes this absolutely clear, is that the Authority took into account that no application had been made to the LSC for funding. That was correct. All that had happened was, at most, that an approach of a general exploratory kind had been made, which elicited the response that the funding application process might take up to 10 months. For that reason, as the solicitors made clear, it was not being pursued. There was no error, and no other ground for challenge is suggested.

There was no doubt that section 2 of the Local Government Act 2000 gave the Authority the power to fund Martin at Elmwood. But the judge expressed the view that the Education Act 1996, section 15A, also empowered the Authority to fund Martin’s education at Elmwood. Section 15A gives a local education authority (“an LEA”) in England power to “secure the provision for their area of full-time or part-time education suitable to the requirements of persons over compulsory school age who have not attained the age of 19, including provision for persons from other areas”.

The Authority appealed on the ground that this power had nothing to do with the funding of an individual pupil at a college of further education in Scotland. Since there was a power under section 2 in any event this part of the appeal was not strenuously resisted.

I am satisfied that the Authority is right to say that the reference in section 15A to the power to secure provision “for persons from other areas” points strongly towards the conclusion that section 15A was intended by Parliament to empower an LEA to secure the existence of facilities in the local education authority’s area for the provision of education. It is a “target” power”: cf R v London Borough of Islington ex parte Rixon [1997] ELR 66, at 69, a decision of Sedley J on section 41 of the Education Act 1944), applying R v Inner London Education Authority ex parte Ali (1990) 2 Admin LR 822. See also R v Further Education Funding Council ex parte Parkinson [1997] ELR 204, 220; De Smith, Judicial Review, 6^th ed. 2007, ed Woolf, Jowell, Le Sueur, para 5-064.

I have set out the correspondence in detail above. In summary the positions of the parties on the correspondence was this. The Authority’s position was that it was no longer responsible for Martin once he reached his 18^th birthday and was no longer registered at Cademuir (or at any rate once he attended Elmwood). Where a child ceased to be a child for whom the Authority was responsible, the Authority could cease to maintain a statement without giving notice and there was no right of appeal.

Mr Hill’s position was that Elmwood was a school, and that the Authority had to give formal notice of intention to cease the statement and of his right to appeal to SENDIST. Consequently, the Authority, if it did not agree that Elmwood should be included on the statement, had to name another school and he could appeal the decision.

The judge treated the Authority’s position as being that the statement would lapse, automatically, upon Martin beginning to attend a college of further education and that if he did not and while consideration was taking place of what should happen the statement would be maintained. Further, in the event that agreement had been reached about a placement the statement would have been maintained.

The judge’s reasoning was as follows.

Where a child leaves school whether without further education or to go on to college, the child will no longer be registered at a school maintained by them and the local education authority will no longer be responsible for the child, and will no longer be obliged to maintain a statement: R v Oxfordshire County Council ex parte B [1997] ELR 90, at 96, 98.

It is not open to a local education authority to name a further education college in a statement of special educational needs for a young person who is above compulsory school age so that, by reason of section 321 of the 1996 Act, the young person is then no longer the responsibility of the local education authority. Martin’s parents wanted him to be educated at an institution which was a further education college and therefore not a “school” within the meaning of section 312(5) of the 1996 Act. Even if the SENDIST had ordered the naming of Elmwood in Martin’s statement of special educational needs, Martin would still not have been a “child” for whom the Authority was responsible. Thus the SENDIST could not have ordered the Authority to name Elmwood in Martin’s statement of special educational needs as the institution at which Martin should be educated. Parliament cannot have intended a local education authority to be obliged to notify a parent of a right of appeal to the SENDIST in the circumstance that the SENDIST could not allow the appeal.

There was no determination to cease to maintain Martin’s statement of special educational needs and because there was no such determination, there was no need to give notice of a right of appeal to the SENDIST, because there was no viable right of appeal to the SENDIST in the circumstances, since the SENDIST could only name a school in Martin’s statement (and then only if the parents or the local authority have proposed a school: section 326(4)), and Elmwood is not a school.

The Wolverhampton case was correctly decided but the reason why the judge was able to disregard the fact that the local education authority was, by virtue of section 321, no longer responsible for the young person in question, was that the young person would again become a “child” for whom the local education authority was responsible if the SENDIST ordered the local education authority to name the parent’s preferred educational institution in the young person’s statement. This was not such a case.

Up to and including the meeting with the Authority on September 22, 2006, Martin’s parents wished the Authority to do one of the following: (a) name Elmwood on Martin’s statement (as they believed, given the differences between the English and Scottish education system, that Elmwood was a “school”); or (b) name another “school” on the statement; or (c) formally cease to maintain the statement pursuant to schedule 27, paragraph 11, giving the parents a right to appeal to the SENDIST.

There was, therefore, a dispute in relation to Martin’s future which (as the Wolverhampton case makes clear) should have been resolved by the SENDIST. There would have been a purpose to such an appeal, because if the SENDIST had decided that Elmwood was not a “school,” Martin’s parents could have asked it, as they asked the Authority, to order that an appropriate school, or type of school, be named in the statement. The SENDIST could have decided whether such a school needed to follow the Scottish education system, as Martin’s parents believed was necessary for Martin.

Martin’s parents could also have asked the SENDIST to determine that the “educational provision” in Part 3 of the statement should have referred to education in a school following the Scottish curriculum. Whether that was necessary was a matter of dispute between Martin’s parents and the Authority. It was Martin’s parents’ view that, given his educational needs and his Asperger’s Syndrome, it was necessary for Martin to complete his last year of education by following a Scottish curriculum rather than going through the change of moving to the English system. The Authority disagreed, believing that colleges in Bedfordshire would suffice. This is quintessentially a dispute for the SENDIST which has the expertise to decide where Martin’s needs should be met.

The Wolverhampton case shows that the Authority’s case that Martin ceased to be a “child for whom it was responsible” sometime before September 25, 2006 was wrong. Even if Martin was not a child for whom the Authority was responsible, this would not obviate the requirement upon the Authority, if it wished to cease to maintain the Statement, to follow the schedule 27, paragraph 11, procedures giving a right to appeal to the SENDIST.

There was a dispute as to whether Martin’s parents wanted him to be educated at a school and, if so, whether that should be in England or Scotland. While the Authority was entitled to conclude that Martin was not a “child” for whom it was “responsible,” this was a matter that it should have permitted Martin’s parents to challenge before the SENDIST by formally ceasing to maintain his statement. The purpose of schedule 27, paragraph 11, is to allow a local education authority to cease to maintain a statement where it is no longer necessary. The 1996 Act makes clear, however, that if the parents of the child that is subject to the statement disagree with that decision, they should be able to challenge the matter in the SENDIST. Where there is a clear dispute as to whether a child who was covered by a statement should no longer be subject to it, that is a matter that should be determined by the SENDIST and not the High Court.

This appeal has some purpose, because there is an important point of principle, and there remains the possibility of obtaining an ex gratia payment from the Authority.

I do not find this an easy question. The legislation has failed to deal explicitly with one unusual situation, namely the case where a person who is over the compulsory school leaving age has left school (i.e. “is not a registered pupil at a school” and “over compulsory school age”: section 321(3)(d)), but where a question arises as to whether he or she should have the benefit of special educational provision.

On this aspect of the appeal the question is a narrow one.

The answer in the present case is to be found in schedule 27 of the 1996 Act, and depends on the relationship between paragraphs 9 and 11. For convenience I set out again the relevant parts in an order which seems to me the key to their intention.

By paragraph 9(1) a local education authority may not “cease to maintain” a statement except in accordance with paragraph 11.

By paragraph 11 there are mandatory requirements. First “a local education authority may cease to maintain a statement only if it is no longer necessary to maintain it.” But, second, where the local education authority determines to cease to maintain a statement it has to give notice in writing of that fact to the parent of the child, and give notice of the parent’s right of appeal: paras 11(1), (2), (2A).

If the matter stood there then even where a child reached 16, 18 or 19 and was no longer at school the local education authority would have to determine whether to cease to maintain the statement and give notice of its determination.

That would not normally make sense, and consequently paragraph 9(2) provides that the obligation not to cease to maintain a statement otherwise than in accordance with paragraph 11 does not apply where the local education authority ceases to maintain a statement for a child for whom it has ceased to be responsible.

But on a literal reading of section 321(3) the local education authority is not “responsible for a child” where the child is not a registered pupil at a school and is over compulsory school age. The literal meaning would lead to anomalous results in a case such as the present, where a child has ceased to be registered at a school through no fault of the parents, and wishes to continue secondary education.

But the Authority has never suggested that it would not have been responsible for Martin had his parents wished him to be placed in a “school” after Cademuir had closed, even though Martin was over compulsory school age, and as soon as Cademuir closed, he was not “a registered pupil at a school.”

R v Oxfordshire County Council, ex p B [1997] ELR 90 was a decision under the Education Act 1981, section 4(2)(a) (which was equivalent to what is now section 321(3)(a) of the 1996 Act) and schedule 1, paragraphs 6 and 7 (which are similar to, but not quite the same as, respectively, paragraphs 11 and 9 of schedule 27 to the 1996 Act).

In that case the local education authority’s policy was that its special schools took pupils with learning difficulties up to and not beyond the age of 16, when they then moved on to a college of further education. B attended, until he was 16 in 1994, a special school which was approved to take children from the ages of 2 to 16, although exceptionally a few children had remained at the school beyond the statutory school leaving age. Although B’s mother wanted him to continue at the special school, the local educational authority informed her, a few weeks after the end of the summer term in 1994, that in view of the fact that he was being offered a place at a college of further education, it intended to cease to maintain the statement of special educational needs.

It was held that the local education authority’s decision not to put B into an exceptional category was lawful. Under the legislation as it then stood there was no right of appeal against a decision to cease to maintain a statement of special educational needs, but there was a statutory right to make representations. The structure of paragraphs 6 and 7 of schedule 1 to the 1981 Act is somewhat different from that of the equivalent paragraphs (11 and 9) of schedule 27 to the 1996 Act. The duty to give notice of a proposal to amend or cease to maintain a statement (and give notice of the right to make representations) was in paragraph 6, but it was provided that paragraph 6 did not apply “… in any case where a local education authority cease to maintain a statement for a child who has ceased to be their responsibility” (1981 Act, schedule 1, para 7). There was no overriding obligation (as in paragraph 9(1) of schedule 27 to the 1996 Act) not to cease to maintain a statement except in accordance with paragraph 11.

One of the issues raised on appeal in that case was whether the statement had specifically to be brought to an end so that the rights of representation were triggered. Butler-Sloss LJ said (at 96-97):

“.. Upon the child leaving school whether without further education or to go on to college, the child will no longer be registered at a school maintained by them and they will no longer be responsible for the child. … In my judgment the responsibility for the registered child ends upon the child ceasing to be registered and the maintenance of the statement … would cease with the cessation of that responsibility and registration which is exactly the situation envisaged by the provisions of para 7…”

Swinton Thomas LJ agreed (at 98) that for the purposes of the statement the local education authority had ceased to be responsible for B as from the date when the statement ceased.

This decision was not referred to by the judge in this case, or by Irwin J in Wolverhampton City Council v Special Educational Needs and Disability Tribunal [2007] EWHC 117 (Admin), [2007] ELR 418. The latter decision is, of course, not binding on this court but it was followed by Wyn Williams J and figured large in the arguments on this appeal.

In that case A, who had Asperger’s Syndrome (i) was over compulsory school age, but under the age of 19; and (ii) was not registered at a school (because his mother had withdrawn him from school shortly before he was 16).

It was decided with the local education authority that he would be best educated through an organisation called NotSchool.Net (with the proposal that he could work towards admission to a further education college in September of the following year) and amended his statement of special educational needs. He attended NotSchool.Net for the next two academic years, until June 2006 when he was a little over 17 years old. His mother then wrote to the local education authority to say that A wished to attend an institution which was a Sixth Form School and Further Education College, but which was not approved for LSC funding. A’s mother told the local education authority on several occasions that it was her wish for A to remain in full-time school education beyond the end of his placement at NotSchool.Net. No decision was taken by the local education authority until after the end of the school year, when it informed A’s mother that when A ceased to be enrolled with NotSchool.Net (i) he was over compulsory school age, (ii) he was not a registered pupil at a school and (iii) he had therefore ceased to be the responsibility of the authority for the purpose of education, and his statement had lapsed automatically. A’s mother appealed to the SENDIST and the local education authority applied to strike out the appeal for lack of jurisdiction. The application was dismissed by the SENDIST and its decision was upheld on appeal by Irwin J.

Irwin J held that (a) A was a “child” within the meaning of Part IV of the 1996 Act; (b) the local education authority was not “responsible” for A under the definition in section 321(3) of the Act; (c) but on the facts of the case, where the local education authority had continued to maintain a statement in relation to A for a year after he reached compulsory school age, a letter saying that the statement had “lapsed” was in fact a decision to cease to maintain the statement; (d) a right of appeal existed under schedule 27, paragraph 11(2), in relation to a decision to cease to maintain a statement for a child, even if the LEA is no longer “responsible” for that child; (e) under paragraph 9(2) a local education authority may lawfully cease to maintain the statement where they are no longer “responsible” for a child, but where it has chosen to act as if in compliance with the duty under paragraph 11(1) to maintain a statement as long as it is necessary to do so (even they were under no obligation to do so), the SENDIST on appeal had the power to restore the statement.

The Authority does not suggest that Wolverhampton was wrongly decided. What is says is that it is a different case because in that case there was a live issue as to whether the child should go to an institution which was a school with joint status as a college of further education. Here it was clear that Martin’s parents wanted him solely to go to an institution which would not qualify. For Martin it is argued that (a) his parents were adamant that Elmwood was a “school” but also that if the Authority did not agree that Elmwood could be included on the statement, the Authority should name an alternative “school”; and (b) the Wolverhampton case decides that when a local education authority takes a decision to cease to maintain a statement for a child for whom the local education authoritymight be responsible, the local education authority should follow the procedure in paragraph 11.

I agree with Irwin J in Wolverhampton that the definition of “child” in section 312(5) is not exhaustive. Consequently it is not necessary for a person to be “a registered pupil at a school” to be a “child” for the purposes of Part IV of the 1996 Act.

In my judgment paragraph 9(2) of schedule 27 is intended to apply to the normal case where the statement ceases to have any point, because the child has left school and there is no possibility of the local authority providing for special educational needs up to the age of 18 or 19. Although the Secretary of State’s code of practice cannot affect the interpretation of the legislation, that common sense interpretation is confirmed by paragraph 8:121 of the code of practice, which makes it clear that a statement will lapse automatically when a young person moves into further or higher education. Consequently, the code says that where the young person, the parents, the local education authority and the further education institution are all in agreement about the young person’s transfer, there is no need to formally cease the statement since the young person will cease to be a pupil for whom the local education authority is responsible after leaving school, and so the statement will lapse.

Paragraphs 9 and 11 do not use the language of “lapse”. They assume that in all cases the local education authority will determine whether or not “to cease to maintain a statement.” In certain cases it is not bound to give notice of its determination. There is no need to give paragraph 9(2) such a literal interpretation that paragraph 11 cannot apply to a case where a child of 16 has ceased to be registered at a school but there is every reason for a continuing belief that the child may need, and be given, special educational provision later. In those circumstances the decision of the local education authority may indeed be a decision to cease to maintain the statement. That is what happened in the Wolverhampton case. Did it also happen in this case? In my judgment it did, because it is contrary to the reality of the situation to say that the statement “lapsed” in the circumstances of this case, or that the Authority did not make a decision to cease to maintain it.

The Authority was not consistent in its approach. In the present case the Authority intended, until Cademuir went into liquidation, for Martin to remain at school and be covered by a statement until he reached the age of 19. On June 8, 2006, probably using a standard procedure, it determined to maintain the statement (even though Martin was no longer at Cademuir, which had by then closed).

On August 24, 2006 the Authority expressed the view that the statement would lapse automatically if Martin went to Elmwood. On September 14, 2006 the Authority repeated that the statement would lapse automatically if Martin went to Elmwood, but said that the statement had not “ceased”. It was only on September 28, 2006, when Martin was already at Elmwood, that the Authority said that the statement had lapsed when he left Cademuir.

In these unusual circumstances it seems to me that on the facts the Authority determined that the statement ceased in circumstances which were not those envisaged by paragraph 9(2) and that it should have given notice in accordance with paragraph 11(2).

It is true, in the light of the fact that Martin’s parents were determined to have Martin educated at Elmwood, which is a further education college, and not a school for the purposes of section 312(5), that any appeal designed to achieve that purpose was bound to fail. But Mr Hill’s position had been, at least from August 22, 2006, that the Authority had to give formal notice of intention to cease the statement and of the right to appeal to the SENDIST. It is not now possible to say what would have happened had the Authority given notice then or when these proceedings were commenced, and in particular whether in the course of the appeal another school might have been named in the statement on the proposal of Martin’s parents or the Authority.

I would therefore allow the appeal against the order that the decision of March 31, 2007 to refuse to fund a place at Elmwood be quashed, and dismiss the appeal against the order that a declaration be made that the Authority acted unlawfully in ceasing to maintain Martin’s statement of special educational needs on September 25, 2006 without notifying his parents of their right of appeal to the SENDIST.

I agree.

I also agree.