N, R (on the application of) v North Tyneside Borough Council

The appellant in this case is a child, aged 11, acting by her father and litigation friend. She has special educational needs arising from Down’s Syndrome and autistic spectrum disorder. She is the subject of a statement of special educational needs made under the Education Act 1996. The version in place when these proceedings were commenced was dated 2 September 2008. There is now a later version made on 26 October 2009. This statutory statement, amongst other matters, identifies her educational needs and the provision to be made with respect to those needs. Since the terms of the statement could not be agreed, they were ordered by the Special Educational Needs and Disability Tribunal, now the Health, Education and Social Care Chamber of the First-Tier Tribunal. Amongst a whole series of requirements which were identified in that statement, there are certain provisions made in respect of speech and language therapy. One of the provisions was as follows:

“Over a period of 1 month [N] will receive a minimum of 1 hour’s speech and language therapy intervention. This will include some time directly working one-to-one with [N] and some in-class time to model ways of working to reinforce her communication skill… In addition [N] will continue to be included in blocks of group therapy sessions for six weeks at a time subject, as previously, to continuing review should a change in clinical need be identified this will take immediate effect.”(emphasis added).

It seems that in fact there should be a full stop after “review”.

As the provision makes clear, the obligation to provide group therapy reiterated the duty imposed by the previous statement. The appellant’s father objected that the LEA had failed to comply with its obligation to provide the group therapy session. As I understand it, it is conceded that at least for some time in 2007 the applicant was not provided with group therapy sessions at all. The authority has contended that it was not obliged to provide them. The authority submitted that there were some 16 arrangements which have been made with respect to the provision of speech and language therapy, that the overall objective identified in the statement was being achieved, and that it would not be counter-productive and contrary to the interests of the child to provide group therapy. In particular, emphasis was placed on the italicised words, which it was suggested gave the LEA discretion to refuse to provide the sessions if they thought they would not be in the child’s interest.

The applicant contended that this constituted a fundamental failure by the authority to comply with its statutory duty under section 324(5) of the Education Act 1996. Where there is a failure to comply with that obligation, the appropriate legal remedy is by way of judicial review. That is what the appellant has done here. She brought a claim before HHJ Mackie QC, who was sitting as a deputy High Court judge in the Administrative Court. She sought a declaration that the authority was in breach of its statutory obligations under section 324(5) and an order requiring them to make the appropriate provisions. Section 324(5) of the Education Act 1996 provides:

“(5)(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…”

We are concerned here with the special educational provision in (i), which is cast in mandatory rather than discretionary terms.

The LEA continued to assert before the judge that they were not obliged to provide the group sessions, having determined that it was not in the child’s interests to do so.

The claimant contended that the approach adopted by the LEA was inconsistent with two well-established principles concerning the application of this subsection. The first is that the duty to arrange for the specified provision is a mandatory one. There can be no excuse if there are financial or other practical difficulties in giving effect to the terms of the statement: see the decision of Turner J in R v LB Harrow ex parte M [1997] ELR 62.

The second principle is that the statement should not identify the educational provisions in terms which confer upon the LEA the power to alter the provision unilaterally without any need formally to amend the statement, even after consultation. The statement should be cast in terms which are sufficiently specific to require the LEA to amend it if they think that the educational provision should be changed. If this were not so, the individual would be deprived of his or her right of appeal under the legislation: see the observations of Bell J in E v Rotherham Metropolitan Borough Council [2001] EWHC Admin 432 at para 34.

It was submitted that the council has in effect frustrated both principles: the first by failing to provide the sessions, for whatever reason; and the second by claiming the right unilaterally to decide whether the group therapy session should be provided or not. The appellant further submitted that the italicised words could not properly be read so as to permit this.

The claim failed. The judge agreed with the authority that the reference to the provision of group therapy sessions did not impose a mandatory obligation in the circumstances of this case. The core of the judge’s analysis was as follows:

“In my judgment, notwithstanding the very able submissions of Ms McColgan, this application cannot succeed. The heart of the argument put forward by Ms McColgan involves taking the particular paragraph in isolation and seeing it, absent some further change to the Statement, as being a mandatory obligation to provide group therapy sessions for 6 weeks at a time. It seems to me, reading the Statement as a whole, and having regard to the obligation upon the authority to co-ordinate a large number of different needs, it is not realistic to say that the child should have some mandatory right to group therapy sessions, regardless of all the other considerations relevant to all the other needs which are being addressed. It would eventually produce the absurd result that, even if all these dedicated professional advisers considered the matter would be a disaster, children would have to be rounded up and N put into group therapy, even in circumstances where this was undesirable. The papers show a number of reasons why N’s current requirement for group therapy may be counterproductive and not in her best interests, but of course that is not the matter for judicial review.

28.

It seems clear from reading the documents as a whole, as opposed to looking at particular passages, that there has been no attempt at all by the authority to subordinate this child’s rights to budgetary or practical restraints. Similarly, there has been no attempt to remove or undermine any right of appeal available to Mr N. So although it is common ground that the law is as Ms McColgan submits it to be, neither of those cases have any application to this case.”

The cases identified by the judge in paragraph 28 are the two cases – the Harrow and Rotherham cases - to which I have referred.

The appellant now appeals to this court. Her case was essentially the same as that advanced below. Ipsea Limited, which is a charity which provides legally based advice and support to parents and carers of children with special educational needs, was given permission to intervene. We are grateful to Mr Wolfe of counsel for his written submissions with respect to this case. The reason for their intervention was the fear that if the decision were to be upheld it would fundamentally change the nature of an LEA’s obligations. It might suggest that an LEA could refuse to provide some of the educational provisions stipulated in a statement if it genuinely and in good faith considered that it was meeting the needs of the child in other ways and without complying with those provisions.

Initially the appeal was defended on the grounds that the judge was correct to conclude that there was no obligation to provide the group therapy sessions, essentially for the reasons he gave In fact the LEA has today before us accepted that it was in breach of its obligations and that the decision of HHJ Mackie could not be supported.

The court is concerned that the recognition came so late in the day but I have no doubt that Mr Rowbottom, counsel for the authority, was right to concede the appeal. The statement identifies a clear provision. and section 324(5) requires the LEA to ensure that it is provided. The interpretation put on this statement by the judge suffers from the same vice as the statement in the Rotherham case. It allows the LEA unilaterally to vary the statement as and when it appears to be appropriate. That is not how the legislative provisions are intended to work.

The only question before us, therefore, was the issue of relief. Since the decision of HHJ Mackie, there has been a further amendment to the statement, resulting in yet another determination by the Special Educational Needs tribunal in October 2009. That reiterates the obligation to provide group therapy sessions but fortunately it removes the italicised words. The LEA initially sought to contend before us that it was now in compliance with this obligation as a result of certain arrangements it had made, albeit that they were not providing group sessions of the kind that had originally been provided. The appellant disputed this, for reasons which at least at first blush seemed wholly convincing. It is not necessary to go into the details of that dispute, however, because during the hearing the court gave the parties a short time to seek to resolve this matter, which they did. It is now agreed that the group therapy sessions which should be provided are of the same kind as those which were being provided in 2007. This is a sensible resolution. Indeed it seems to me that this is precisely what SENDIST had in mind when it said in September 2008 that the provision of group therapy should continue.

Accordingly we will make an order in terms which have been agreed by the parties and which the court has approved.

I agree.

I also agree that, for the reasons given by Elias LJ, this appeal succeeds. What seems to me, as it seems to him, a particular cause for concern is that, although it has been evident from the start that the judge had made an error of principle which made his decision unsustainable, the respondent local education authority resisted the appeal up to the point where their counsel, Mr Rowbottom, rose to his feet in this court today. It is still not entirely clear to me whether the error of law which Elias LJ has identified reflected the case advanced by counsel for the LEA below or was of the judge’s own making. Having heard Mr Rowbottom today I suspect it was a combination of the two but, when asked by this court whether he could defend it, Mr Rowbottom for the first time accepted that he could not. His skeleton argument for this appeal had made no such concession.

The result appears to have been the unnecessary incurring of a large sum in costs on both sides. The child’s advisers of course have had no option but to bring the appeal before the court in order to secure the relief to which it is now accepted the child is entitled. The LEA has run up costs which presumably have to come out of a ring-fenced education budget. Yet it is clear that from the start there was no answer to the claim that the LEA was not complying with the child’s statement.

There is no best endeavours defence in the legislation. If the situation changes there is machinery for revising the statement, but while it stands it is the duty of the LEA to implement it. In a margin of intractable cases there may be reasons why a court would not make a mandatory order, or more probably would briefly defer or qualify its operation. But, as has been accepted before us, this is not such a case.

Counsel have a duty not only to their clients but to the court (and, I would add, to the other party) to make a professional appraisal of their case and to advise accordingly. It is not acceptable for a party to come to court when it knows that it has no legal leg to stand on in the hope that something may turn up.