TM v London Borough of Hounslow

This is an appeal against the decision and order of HHJ Inglis, sitting as a judge of the High Court in the Administrative Court, which were given on 16 October 2008. HHJ Inglis dismissed an appeal by TM, who is the mother of M, who is now 8½, from the decision of the Special Educational Needs and Disability Tribunal (“the tribunal”). Permission to appeal to this court was given by Sedley LJ. The respondent is the London Borough of Hounslow (“the authority”). The Tribunal did not take part in the appeal, nor had it been involved in the hearing before HHJ Inglis.

The case concerns the educational needs of M. He has a diagnosis of Autistic Spectrum Disorder (“ASD”). He has a severe level of disability reflected in communication, social skills and behaviour. One behavioural problem is that he has a tendency to injure himself, particularly by banging his head against the wall. M has been following an Applied Behavioural Analysis (“ABA”) programme, and he has been educated at home since January 2006. The programme is intensive and is intended to prepare a child with autism for integration into a school. At first TM funded the programme. However, from May 2006 to May 2007 the local educational authority (“LEA”) funded it. Thereafter the LEA issued a Statement of Special Educational Needs, (“a statement”) pursuant to section 323 and 324 of the Education Act 1996 (“the Act”) on 13 December 2006. An amended Statement (“the section 324 statement”) was issued on 18 May 2007.

When the LEA had prepared a draft section 324 statement, it had identified Lindon Bennet School, which is special school, in part IV of that statement which deals with the question of educational placement. Part III of the statement (which deals with special educational provision) had referred to a “schools based” programme, but made no mention of the continuation of the ABA programme. TM made representation to the LEA, as was her right under paragraph 4 of Schedule 27 of the Act, because she wished M to carry on with the ABA programme at home rather than attend a school. However, in the final version of the statement made in December 2006 and in the amended version of May 2007, Parts III and IV of the statement continued to contain the provisions I have mentioned.

On 27 July 2007 TM appealed against this section 324 statement to the tribunal pursuant to section 326 of the Act. The appeal was against the educational provision in the statement that TM should be educated at the school specified, rather than continue to follow a home-based ABA programme. TM sought other amendments to the statement, which are not now relevant.

The appeal was heard by the Tribunal on 7 December 2007. It handed down its decision on 31 December 2007. It accepted that there should be some amendments to the statement, but we are not concerned with those. With regard to the educational provision for the condition of autism from which M suffers, the tribunal set out its ruling at paragraph E.

This records, first, that TM wished M to continue with the home-based ABA programme, but that the LEA considered that he should now be attending school. Secondly, the paragraph set out section 319 of the Act, which I shall set out in a moment. Thirdly, the paragraph recorded the Tribunal’s interpretation of section 319, which was that “it is only in circumstances where all or part of a child’s special educational needs cannot be met in the school that it is appropriate for the provision to be made elsewhere than at a school.”

Fourthly, the tribunal made findings of fact about Lindon Bennet School and concluded that it had specialist provision for pupils diagnosed with ASD and that it could deal satisfactorily with M’s behavioural difficulties. The Tribunal’s conclusion was that M’s needs could be met at the Lindon Bennet School, so that “there was no basis for him to be able to continue his ABA programme at home.”

TM appealed that decision to the Administrative Court, under section 11 of the Tribunals and Enquiries Act 1992 on a point of law, viz. the correct construction of section 319 of the Act. HHJ Inglis examined the statute and a number of cases. He concluded, at paragraph 27 of his judgment that “as a matter of the application of section 319, in my judgment the Tribunal were right to concentrate on whether the school could meet M’s statement of needs and, having found that it could, treated the effect of section 319 as requiring the school to be named in Part IV.”

The relevant provisions of the Act are the following:

“9.

Pupils to be educated in accordance with parents' wishes

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

14 Functions in respect of provision of primary and secondary schools

(1)

A local education authority shall secure that sufficient schools for providing --

(a)

primary education, and

(b)

education that is secondary education by virtue of section 2(2)(a), are available for their area.

(2)

The schools available for an area shall not be regarded as sufficient for the purposes of subsection (1) unless they are sufficient in number, character and equipment to provide for all pupils the opportunity of appropriate education.

(3)

In subsection (2) “appropriate education” means education which offers such variety of instruction and training as may be desirable in view of—

(a)

the pupils' different ages, abilities and aptitudes, and (b) the different periods for which they may be expected to remain at school, including practical instruction and training appropriate to their different needs.

(4)

A local education authority is not by virtue of subsection (1)(a) under any duty in respect of children under the age of five.

(5)

A local education authority may secure the provision for their area of full-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.

(6)

In exercising their functions under this section, a local education authority shall in particular have regard to --

(a)

the need for securing that primary and secondary education are provided in separate schools;

(b)

the need for securing that special educational provision is made for pupils who have special educational needs; and

(c)

the expediency of securing the provision of boarding accommodation (in boarding schools or otherwise) for pupils for whom education as boarders is considered by their parents and the authority to be desirable.

(7)

The duty imposed by subsection (6)(a) does not apply in relation to middle schools or special schools.

316 Children with special educational needs normally to be educated in mainstream schools

(1)

Any person exercising any functions under this Part in respect of a child with special educational needs who should be educated in a school shall secure that, if the conditions mentioned in subsection (2) are satisfied, the child is educated in a school which is not a special school unless that is incompatible with the wishes of his parent.

(2)

The conditions are that educating the child in a school which is not a special school is compatible with --

(a)

his receiving the special educational provision which his learning difficulty calls for,

317.

Duties of governing body or LEA in relation to pupils with special educational needs

(1)

The governing body, in the case of a county, voluntary or grant-maintained school, and the local education authority, in the case of a maintained nursery school, shall –

(a)

use their best endeavours, in exercising their functions in relation to the school, to secure that, if any registered pupil has special educational needs, the special educational provision which his learning difficulty calls for is made,

(b)

secure that, where the responsible person has been informed by the local education authority that a registered pupil has special educational needs, those needs are made known to all who are likely to teach him, and

(c)

secure that the teachers in the school are aware of the importance of identifying, and providing for, those registered pupils who have special educational needs.

(2)

In subsection (1)(b) “the responsible person” means –

(a)

in the case of a county, voluntary or grant-maintained school, the head teacher or the appropriate governor (that is, the chairman of the governing body or, where the governing body have designated another governor for the purposes of this paragraph, that other governor), and

(b)

in the case of a nursery school, the head teacher.

(3)

To the extent that it appears necessary or desirable for the purpose of co-ordinating provision for children with special educational needs –

(a)

the governing bodies of county, voluntary and grant-maintained schools shall, in exercising functions relating to the provision for such children, consult the local education authority, the funding authority and the governing bodies of other such schools, and

(b)

in relation to maintained nursery schools, the local education authority shall, in exercising those functions, consult the funding authority and the governing bodies of county, voluntary and grant-maintained schools.

(4)

Where a child who has special educational needs is being educated in a county, voluntary or grant-maintained school or a maintained nursery school, those concerned with making special educational provision for the child shall secure, so far as is reasonably practicable and is compatible with –

(a)

the child receiving the special educational provision which his learning difficulty calls for,

(b)

the provision of efficient education for the children with whom he will be educated, and

(c)

the efficient use of resources,

that the child engages in the activities of the school together with children who do not have special educational needs.

(5)

The annual report for each county, voluntary, maintained special or grant-maintained school shall include a report containing such information as may be prescribed about the implementation of the governing body’s policy for pupils with special educational needs.

(6)

The annual report for each county, voluntary or grant-maintained school shall also include a report containing information as to –

(a)

the arrangements for the admission of disabled pupils;

(b)

the steps taken to prevent disabled pupils from being treated less favourably than other pupils; and

(c)

the facilities provided to assist access to the school by disabled pupils;

and for this purpose “disabled pupils” means pupils who are disabled persons for the purposes of the [1995 c. 50.] Disability Discrimination Act 1995.

(7)

In this section “annual report” means the report prepared under the articles of government for the school in accordance with section 161 or, as the case may be, paragraph 7 of Schedule 23.

318.

Provision of goods and services in connection with special educational needs

(1)

A local education authority may, for the purpose only of assisting –

(a)

the governing bodies of county, voluntary or grant-maintained schools (in their or any other area) in the performance of the governing bodies' duties under section 317(1)(a), or

(b)

the governing bodies of maintained or grant-maintained special schools (in their or any other area) in the performance of the governing bodies' duties, supply goods or services to those bodies.

(2)

The terms on which goods or services are supplied by local education authorities under this section –

(a)

to the governing bodies of grant-maintained schools or grant-maintained special schools, or

(b)

to the governing bodies of county, voluntary or maintained special schools, in any other area may, in such circumstances as may be prescribed, include such terms as to payment as may be prescribed.

(3)

A local education authority may supply goods or services to any authority or other person (other than a governing body within subsection (1)) for the purpose only of assisting them in making for any child in respect of whose education grants are (or are to be) made under arrangements under section 1 of the [1996 c. 50.] Nursery Education and Grant-Maintained Schools Act 1996 any special educational provision which any learning difficulty of the child calls for.

(4)

This section is without prejudice to the generality of any other power of local education authorities to supply goods or services.

319.

Special educational provision otherwise than in schools

(1)

Where a local education authority are satisfied that it would be inappropriate for --

(a)

the special educational provision which a learning difficulty of a child in their area calls for, or

(b)

any part of any such provision,

to be made in a school, they may arrange for the provision (or, as the case may be, for that part of it) to be made otherwise than in a school.

(2)

Before making an arrangement under this section, a local education authority shall consult the child’s parent.

323 Assessment of educational needs

(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 propose 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.

(3)

Where --

(a)

a local education authority have served a notice under subsection (1) and the period specified in the notice in accordance with subsection (1)(d) has expired, and

(b)

the authority remain of the opinion, after taking into account any representations made and any evidence submitted to them in response to the notice, that the child falls, or probably falls, within subsection (2), they shall make an assessment of his educational needs.

(4)

Where a local education authority decide to make an assessment under this section, they shall give notice in writing to the child’s parent of that decision and of their reasons for making it.

(5)

Schedule 26 has effect in relation to the making of assessments under this section.

(6)

Where, at any time after serving a notice under subsection (1), a local education authority decide not to assess the educational needs of the child concerned they shall give notice in writing to the child’s parent of their decision.

324.

Statement of special educational needs

(1)

If, in the light of an assessment under section 323 of any child’s educational needs and of any representations made by the child’s parent 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.

(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.

(5)

Where a local education authority maintain a statement under this section, then –

(a)

unless the child’s parent has made suitable arrangements, the authority –

(i)

shall arrange that the special educational provision specified in the statement is made for the child, and

(ii)

may arrange that any non-educational provision specified in the statement is made for him in such manner as they consider appropriate, and

(b)

if the name of a maintained, grant-maintained or grant-maintained special school is specified in the statement, the governing body of the school shall admit the child to the school.

(6)

Subsection (5)(b) does not affect any power to exclude from a school a pupil who is already a registered pupil there.

(7)

Schedule 27 has effect in relation to the making and maintenance of statements under this section.”

Mr Squire, for the appellant, submits that the appeal raises a short point of statutory construction, namely the meaning of the word “inappropriate” in section 319 of the Act. Put rather more fully, he says the issue is whether the tribunal and the judge were correct to conclude that once it is established as a fact that the child’s needs could be met at a school, then education in school was necessarily “appropriate” so that section 319 could not come into play. He submits that there are five reasons to reject the conclusion of the judge and of the tribunal. First, he submits it does not accord with the ordinary meaning of the language of section 319. Secondly, he says that it is contrary to the way in which the appropriateness of educational provision is determined elsewhere in Part IV of the Act. Thirdly, he says it means that section 9, which deals with parental wishes, will be disapplied without justification. Fourthly, he submits it is contrary to authority on section 319. Lastly, he argues it would lead to undesirable outcomes.

Mr Oldham, for the authority, submits that the tribunal and the judge were correct in their construction of the section. He points to the context in which section 319 is found. He submits that sections 316 and 316A give a strong steer in favour of education of children with special educational needs in mainstream, as opposed to special, schools. He submits that the appellant gets no assistance from the use of “appropriate” in section 324(4), paragraphs (a) and (b). He submits that the operation of section 319 is compatible with section 9 of the Act and he relies upon the decision of Richards J (as he then was) in T v Wiltshire County Council [2002] ELR 704. Furthermore, he submits that the council’s construction would not produce the bizarre results suggested by Mr Squire.

The issue in this case has to be resolved by a process of statutory construction. To do this exercise, it is vital to place section 319 in its statutory context before construing it. Section 319 of the Act appears in Part IV, which is headed “Special Educational Needs”. The section is within chapter 1 of Part IV. That chapter is headed “Children With Special Educational Needs”. Section 312 of the Act is under a heading, which is “Introductory”. That section defines various terms, including “special educational needs” and “special educational provision”. Section 315 is under the heading “Special Educational Provision General”. That section directs local authorities to keep under review the arrangements made by them for special education provision.

Section 316 is under the same heading. The precise terms of section 316 are, in my view, important. It applies to a child with special educational needs “who should be educated in a school.” The provision of that section therefore only applies if the premise “should be educated in a school” is fulfilled. But clearly, some exercise has to be undertaken by someone, at some stage, to see whether or not a particular child who has special educational needs “should be educated in a school”.

However, even in cases where a child with special educational needs should be educated in a school, education in a mainstream school is not compulsory, as is made clear by section 316A. That section indicates that a child may be educated in other types of school, as identified in that section, if the cost is met otherwise than by a local education authority.

Section 317 defines various duties of governing bodies and various types of school in relation to pupils with special educational needs.

Section 319 therefore comes in this group of sections, which has been dealing with the education, in various forms of school, of a child with special educational needs.

Section 320 deals with the possibility that a child, for whom a section 324 statement is made, might attend an institution outside England and Wales.

The series of sections starting with section 321 is headed: “Identification and assessment of children with special educational needs”. Section 321 itself sets out a general duty of an LEA towards children it is responsible for. We need not deal with that section in detail.

However, in my view, section 323 and 324 are the vital sections in this part of the framework of these sections. Section 323 indicates the stages that have to be undertaken if an LEA is of opinion that a child for whom it is responsible falls, or probably falls, within subsection (2) of that section. If that is the view that the local education authority takes, then a notice has to be served on the parents of the child. The preconditions set out in subsection (2) are, first, that the child has special educational needs and secondly, that it is necessary for the LEA to determine the special educational provision which any learning difficulty the child may have calls for. If the LEA thinks that the child does or probably does fall within those criteria, then the notice to the parents must say that the LEA is considering making an assessment of the child’s educational needs. It must also say the procedure that is to be followed in making it, and it must identify the officer from whom further information can be obtained. Subsection (3) of section 323 states, broadly, that once the notice has been served and a certain point has passed, and any representations made or evidence submitted in response to the notice and the LEA still has the opinion that the child does or probably does fall within subsection (2), then the LEA must make an assessment of the child’s educational needs. If the LEA has this opinion, then it must notify the parents (see subsection (3) again).

That leads to the next step, once the assessment has been done, and this is dealt with by section 324. In section 324(1) it stipulates that the LEA has to take account of any representations made by the parents pursuant to Sch 27 of the Act, which I shall come to in a moment. But if, after that, it is necessary for the LEA to determine the special education provisions called for by any learning difficulty the child might have, then the LEA must make and maintain a statement of a child’s special educational needs. That is the statement that I referred to previously in this judgment as “the section 324 statement”. The form and content of that statement are prescribed by regulations. We have seen, as I have noted already, the statement and the amended statement that were made in this case.

Sections 324(3) and 324(4) do, however, stipulate what must be in the statement with regard to certain matters. Subsection (3) says that the statement must give details of the authority’s assessment of the child’s special educational needs and specify the special educational provisions to be made for the purpose of meeting those needs, including the matters set out in subsection (4). The latter subsection says that the statement must specify the type of school or other institution which the LEA considers would be “appropriate” for the child. Alternatively if the LEA is not required to identify the name of the school or other institution (because of provisions in Sch 27) it will specify the name of a school or institution which it considers is “appropriate” for the child and should be specified in the statement. Lastly, the statement will specify “any provision for the child for which they make arrangements under section 319 and which they consider should be specified in the statement.”

As I have said, this section, 324, refers to Sch 27 of the Act. That schedule sets out further provisions concerning the making and maintenance of statements under section 324. Very broadly, paragraphs 2-4 of schedule 27 provide that a draft section 324 statement is to be served on the parents of the child who is the subject of the statement, but when it is served on them the draft will not specify the type of school or other institution that the local education authority considers would be appropriate for the child (section 324(4)(a)); or the name of any school or institution considered appropriate for the child: section 324(4)(b); or any provision for arrangements under section 319: section 324(4)(c). Schedule 27 paragraph 3 obliges local education authorities to make arrangements to enable parents on whom the proposed section 324 statement has been served to “express a preference as to the maintained school at which he [the parent] wishes educational to be provided for his child and to give reasons for his preference.” Schedule 27(4) states that a parent can make representations to the local education authority about the content generally of the proposed statement. Schedule 27(5) requires the local education authority to consider the representations of the parents. It will make the full statement either in the form originally proposed or in a modified form. Paragraph 6 of Schedule 27 requires that the statement, as finally produced, is served on the parents, who have the right to appeal it under section 326 of the Act. It is, therefore, clear from the structure of section 324 and schedule 27 that the local authority must consider the parents’ wishes before it finalises the section 324 statement.

I have to say that the structure of the sections between section 312 and 324 is not what I would regard as either logical or particularly easy to follow. But, having been through them with the great assistance of counsel, I think I can now place section 319 in the context of the overall process that has to be conducted by a local education authority when dealing with a child that may have learning difficulties and special educational needs. It seems to me that the statutory provisions contemplate a number of stages that a local education authority has to go through when deciding on how to provide for the educational needs of a child with learning difficulties, which may call for special educational provisions to be made for the child. The stages appear to me to be these: first, the LEA has to consider whether a child in its area has a learning difficulty. If the answer to that question is yes, then it must, secondly, identify the child’s special educational needs consequent upon that learning difficulty. To do this, the LEA has to undertake the assessment referred to in section 323(3) of the Act. Thirdly, having undertaken the assessment, the LEA has to decide whether special educational provision may be called for in respect of any learning difficulty the child has. If the LEA does decide that special educational provision is called for, then, as a fourth stage, the LEA must do two things. First, it must make and maintain a statement; and secondly, it must consider and then decide what special educational provisions the child, therefore, needs.

It seems to me that it is at that stage, where the LEA is considering what special educational provisions the child needs, that the local education authority has to ask whether it is satisfied that it would be “inappropriate” for the special educational provision which a learning difficulty of a child in their area calls for, or any part of it, to be made in a school. This is where section 319 comes in. If the local education authority does reach that conclusion, it may make arrangements for special educational provisions otherwise than in a school, after consultation with the parents. However, if the local education authority is not satisfied that it would be “inappropriate” for the special educational provisions which a learning difficulty of a child in their area to be made in a school, then the local education authority must decide whether the education is to be in a maintained school under section 316(3), or if not, under section 316A.

Once the proper position of section 319 in the overall scheme is clear, as I think it is, the construction of section 319 also becomes clear. That section sets out a question that the local authority has to answer before it can tackle the issues that arise under sections 316 and 316A. Sections 316 only operates, as I have already indicated, and as subsection (1) makes clear, where a child “should be educated in a school”. In my view, the use of the word “should” is helpful in the construction of section 319 and in particular in relation to the word “inappropriate”.

The question that the local education authority has to address is, therefore, is it satisfied that it would be “inappropriate” for the special educational provisions of the particular child to be made in a school or not? In answering that question, it seems to me that it is not enough for the local education authority to ask simply “can” the school meet the statement of needs set out in part 3 of the section 324 statement, as Mr Oldham submitted. To confine the question thus does not, in my view, give proper scope to the words in section 319(1), in particular the words “are satisfied that it would be inappropriate for... the special educational provision which a child calls for... or any part of [it] ... to be made in a school.” It seems to me that in conducting that exercise, or answering that question, if a local education authority is to give full effect to the word “inappropriate”, it has to see if a school would “not be suitable” or “would not be proper”. To do that, in my view, the local education authority has to take into account all the circumstances of the case in hand. These circumstances might include, without giving any exhaustive list, (which must depend on the facts of the case) consideration of the following matters: the child’s background and medical history; the particular educational needs of the child; the facilities that can be provided by a school; the facilities that could be provided other than in a school; the comparative cost of the possible alternatives to the child’s educational provisions; the child’s reaction to education provisions, either at a school or elsewhere; the parents’ wishes; and any other particular circumstances that apply to a particular child.

That this exercise must include a consideration of the parents’ wishes (under section 9 of the Act) is clear from the decision of Laws J, as he then was, in Catchpole v Buckinghamshire CC and the Special Educational Needs Tribunal [1998] ELR 463 at page 471F to 472C. That statement was not questioned on appeal. The passages referred to were followed by Scott-Baker J, as he then was, in S and S v Bracknell Authority Council and the Special Educational Needs Tribunal [1999] ELR 51 at 55. Those cases make clear that parental wishes cannot be determinative, except in the very rare case where there are otherwise equally balanced alternatives for the child’s special educational needs. Then, as Laws J put it at page 437A of the Catchpole case, “At most, section 9 [of the Act] creates a bias in favour of parental choice where more than one school is under consideration and where, to put it in very crude terms, everything else is equal.”

It follows from this, in my view, that it is insufficient for a local education authority simply to ask the question: can the school in question meet M’s statement of needs; then if it finds that the answer to that question is “yes”, treating the effect of section 319 as requiring that the school be named in Part IV of the section 324 statement.

Mr Oldham has referred us to the decision of Richards J in T v Special Educational Needs Tribunal and Wiltshire CC [2002] ELR 704, and submits that the judgment of the judge, particularly at paragraph 37 and 38(1) of the judgment, is contrary to this conclusion. I have looked carefully at that judgment. In my view, it is clear that the particular matter with which this court has been concerned, was not before the judge. With great respect, I do not think that his remarks are of particular help. Nor, in my view, do we get any great assistance from the remarks of Scott-Baker J in S and S v Bracknell Authority Council and the Special Educational Needs Tribunal, to which I have already referred, or the decision of Mr Justice McCombe in the case of R (C) v Special Educational Needs Tribunal and the London Borough of Brent [2004] ELR 111. In none of those cases was the precise issue that is before us today one that the court had to consider.

It follows from my analysis that the approach that the Tribunal expressed at the end of its finding at paragraph E was wrong; so also was the conclusion of the judge in approving that approach in paragraph 27 of his judgment. Accordingly, I would allow this appeal and remit the matter to the Tribunal for further consideration.

I agree.

I also agree.