Slough Borough Council v C & Anor

This is an appeal by Slough Borough Council against a decision of the Special Educational Needs and Disability Tribunal issued on 5 April 2004 and amended on 7 May 2004. The decision relates to “IC", a boy now aged 5 years old who has global development delay and associated learning difficulties. IC’s parents appear as first respondents to the appeal. The tribunal appears as second respondent

The material facts are briefly as follows:

The council submits that the tribunal’s decision was unlawful. The central issue in the case is the effect of section 316 of the 1996 Act which imposes a duty, subject to certain exceptions, to educate children with special educational needs in mainstream schools. In a recent judgment in MH v. (1) Special Educational Needs and Disability Tribunal and (2) LB Hounslow [2004] EWCA Civ 770 the Court of Appeal gave guidance on how section 316, read together with section 316A, interacts with the provisions of paragraph 3 of schedule 27 (where a parental preference is expressed for a particular school to be specified in the original statement). The guidance so given does not extend to the interaction of section 316 with paragraph 8 of schedule 27 (where parents request that a particular school be substituted for that specified in the original statement). That is the issue arising in the present case. It is said to be an issue of importance and difficulty, which is why the tribunal has appeared through counsel, Mr Lewis, in order to assist the court. I am grateful to the tribunal for that assistance, which has been rendered in an appropriately measured and balanced way.

The Court of Appeal's judgment in MH contains a detailed account of the legislative framework. I need therefore give only a summary and set out the directly material provisions.

A local education authority is under a duty to identify children with special educational needs, i.e. those with learning difficulties calling for special educational provision to be made for them. Where, in the light of an assessment and of any representations made by the child's parents under schedule 27 to the 1996 Act, it is necessary for the authority to determine the special educational provision called for, the authority is required to make and maintain a statement in a prescribed form. The combined effect of section 324 of the 1996 Act and the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 is that the statement must contain: in Part 2, details of the assessment of the special educational needs; in Part 3, details of the special educational provision to be made for the purpose of meeting those needs; in Part 4, the type of school which the authority considers would be appropriate for the child, together with the name of a school.

Although I do not need to set out the whole of section 324, two sub-sections are of particular relevance:

“(3)

In particular, the statement shall –

(a)

give details of the authority’s assessment of the child’s special educational needs, and

(b)

specify the special educational provision to be made for the purpose of meeting those needs, including the particulars required by subsection (4).

(4)

The statement shall –

(a)

specify the type of school or other institution which the local education authority consider would be appropriate for the child,

(b)

if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement ….”

The reference in section 324(4)(b) to schedule 27 leads me to paragraph 3 of that schedule. The position is that, under paragraph 2, the authority must serve a copy of the proposed statement on the child’s parent, leaving Part 4 blank. Paragraph 3 then enables the parent to indicate a choice of school. It provides:

“(1)

Every local education authority shall make arrangements for enabling a parent –

(a)

on whom a copy of a proposed statement has been served under paragraph 2 …

to express a preference as to the maintained school at which he wishes education to be provided for his child and to give reasons for his preference.

…

(3)

Where a local education authority make a statement in a case where the parent of the child concerned has expressed a preference in pursuance of such arrangements as to the school at which he wishes education to be provided for his child, they shall specify the name of that school in the statement unless –

(a)

the school is unsuitable to the child’s age, ability or aptitude or to his special educational needs, or

(b)

the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources.”

It is at this point that sections 316 and 316A need to be considered. Those sections, as substituted by the Special Educational Needs and Disability Act 2001, provide in material part:

“316.(1) This section applies to a child with special educational needs who should be educated in a school.

…

(3)

If a statement is maintained under section 324 for the child, he must be educated in a mainstream school unless that is incompatible with –

(a)

the wishes of the parent, or

(b)

the provision of efficient education for other children.

(4)

In this section and section 316A ‘mainstream school’ means any school other than –

(a)

a special school, or

(b)

an independent school which is not (i) a city technology college, (ii) a city college for the technology of the arts, or (iii) an Academy.

316A. …

(3)

Section 316 does not affect the operation of –

(a)

section 348 [provision of special education at non-maintained schools], or

(b)

paragraph 3 of Schedule 27.

(4)

If a local education authority decide –

(a)

to make a statement for a child under section 324, but

(b)

not to name in the statement the school for which a parent has expressed a preference under paragraph 3 of Schedule 27, they shall, in making the statement, comply with section 316(3).”

As already mentioned, the relationship between those various provisions was the subject of guidance in MH. The court stated:

“68.

At the outset it is, in our judgment, of crucial importance to recognise that the process for recognition of parental choice of a particular school contained in paragraph 3 of Schedule 27 (‘the paragraph 3 process’) is entirely distinct both in its nature and in its purpose from the process whereby a local education authority discharges its duty under sections 316 and 316A (‘the section 316 process’).

69.

Under the paragraph 3 process, parents have a qualified right to insist on their preference for a particular school. The right is qualified by paragraph 3(3)(a) and (b), in that if any of the conditions in those subparagraphs is met, the local education authority is not bound to specify the name of that school in Part 4 of the statement (although there is nothing in paragraph 3 which expressly prevents it from doing so). The conditions are ‘suitability’ (in subparagraph (a)) and incompatibility with either with ‘the efficient education for the children with whom he would be educated or the efficient use of resources’. Although a modified version of the ‘incompatibility’ condition appears in section 316(3)(b) (‘the provision of efficient education for other children’), read with the ‘no reasonable steps’ provisions in section 316A(5) and (6), the ‘suitability’ condition in paragraph 3(3)(a) has no equivalent in the section 316 process. So much at least appears to be common ground.

70.

We turn, then, to the section 316 process. Section 316(3) imposes a duty on a local education authority to educate a child in a mainstream school if the parents wish it unless ‘that’ (i.e. the education of the child in a mainstream school) is ‘incompatible … with the provision of efficient education for other children’. That condition is itself qualified by the ‘no reasonable steps’ requirement in section 316A(5) and (6).

71.

Section 316 is not expressly directed to the making or maintaining of a statement, but the necessary link is provided by section 316A(3). Section 316A(4) provides that where a local education authority decides to make a statement for a child under section 324, and lawfully rejects a parent’s preference for a particular school (i.e. where the paragraph 3 process has been exhausted), it must, in making the statement, comply with section 316(3). It is in our judgement clear from section 316A(4) that, in the context of issues as to the contents of part 4 of a statement, the section 316 process is subordinate to the paragraph 3 process in the sense that it only comes into operation where the paragraph 3 process (if lawfully invoked by the parent) has been exhausted. Where the paragraph 3 process has been lawfully invoked, the starting point for the local education authority, and hence for the Tribunal standing in its shoes (see Sedley LJ in Bromley, quoted in paragraph 32 above), must be the question the parent is entitled to insist on his or her choice of school. The parent will be so entitled unless either the ‘unsuitability’ condition in paragraph 3(3)(a) or either limb of the ‘incompatibility’ condition in paragraph 3(3)(b) applies. Subject to that, the chosen school must be named in Part 4 of the statement, and (so far as Part 4 of the statement is concerned) the section 316 process will not come into operation. However, if one or other of the prescribed conditions applies, and the local education authority decides not to name the chosen school in Part 4 of the statement, then by virtue of section 316A(4) the section 316 process comes into operation.”

The court went on to hold that although there is no duty under section 316 to name a particular school in Part 4 of the statement, in carrying out the section 316 process an authority has a discretion to consider particular schools as candidates for naming. In the light of the relevant statutory guidance, to which the authority must have regard pursuant to section 316A(8) but the detail of which I do not need to set out, the court held in paragraph 76 that:

“… in carrying out the section 316 process a local education authority (and the Tribunal, standing in its shoes), having concluded that mainstream schooling is the appropriate type of schooling for the child, ought normally to exercise its power to name a particular mainstream school in Part 4 of the statement.”

The provisions I have described govern the initial making of a statement. When a statement is made, the parents have a right of appeal to the tribunal under section 326 against the description of the child's special educational needs in Part 2, the educational provision specified in Part 3, the type of school specified in Part 4 or the particular school named in Part 4 (or, if no school is named, the fact that no school has been named). An appeal must be brought within 2 months of the parent being notified of the right of appeal. In this case, as already mentioned, there was no appeal.

There are also provisions for subsequent review of a child’s educational needs and for consequential amendments to the statement. By section 328(1), regulations may prescribe the frequency with which assessments are to be carried out in respect of children for whom statements are maintained. Section 328(2) requires an authority to carry out a further assessment if the child’s parent requests it and one has not been carried out within the previous six months and is necessary. Section 328(5) requires an authority to review a statement following an assessment and in any event within twelve months from the making of the statement or the previous review.

Where the process of reassessment or review leads to the proposed amendment of the statement, paragraph 3 of schedule 27 and sections 316 and 316A apply in relation to the proposed amendments as they do to the making of a statement in the first place.

In addition to the general provisions for reassessment and review, there is a specific provision in paragraph 8 of schedule 27 whereby a parent may request a change to the school named in the statement. Paragraph 8 reads:

“(1)

Sub-paragraph 2 applies where –

(a)

the parent of a child for whom a statement is maintained which specifies the name of a school or institution asks the local education authority to substitute for that name the name of a maintained school specified by the parent, and

(b)

the request is not made less than 12 months after –

(i)

an earlier request under this paragraph,

(ii)

the service of a copy of the statement or amended statement under paragraph 6, … or

(iv)

if the parent has appealed to the Tribunal under section 326 or this paragraph, the date when the appeal is concluded,

whichever is the later.

(2)

The local education authority shall comply with the request unless –

(a)

the school is unsuitable to the child’s age, ability or aptitude or to his special educational needs, or

(b)

the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources.”

(3)

Where the local education authority determine not to comply with the request –

(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.

(3A) A notice under sub-paragraph (3)(a) must inform the parent of the right of appeal under sub-paragraph (3)(b) and contain such other information as may be prescribed.

(4)

On the appeal the Tribunal may –

(a)

dismiss the appeal, or

(b)

order the local education authority to substitute for the name of the school or other institution specified in the statement the name of the school specified by the parent ….”

Paragraph 8 is the provision pursuant to which IC's parents requested the council to substitute a mainstream primary school, the S school, for the existing special school, the A school, in Part 4 of the statement. The council’s decision not to comply with the request led to an appeal to the tribunal under paragraph 8(3)(b). That brings me to the tribunal’s decision on the appeal.

Having dealt with certain preliminary issues (section 1) and the facts and submissions (section 2), the tribunal gave its conclusion with reasons (section 3). The main part of the reasoning is at paragraphs D-G of section 3:

“ D. Section 1 of the Special Educational Needs and Disability Act 2001 substituted a new s.316 in the Education Act 1996 giving a child with a statement a right to attend mainstream school. This legal duty on an LEA to provide mainstream education can only be overturned in a minority of cases where to do so would be either incompatible with the wishes of his parents, which is clearly not the case here, or with the provision of efficient education for other children. The only argument put forward by the LEA on this ground was that it would place a burden on staff and the presence of an LSA might be disruptive to other children, neither of which are sufficient to establish the incompatibility. Furthermore, [IC’s] behaviour is not a problem and certainly does not fit the description in the guidance of behaviour likely to lead to a conclusion that educating him in a mainstream environment would be incompatible with the education of children with whom he would be educated. The LEA’s evidence about the steps it had taken to date with regard to inclusion did not persuade us that it could rely on the exception in s.316(3)(b).

E. We accept that the LEA has gone down the path of integration to some extent, but still has some way to go in relation to particular types of special educational needs. We also note that [the A School] is contributing to this, but the number of children it has integrated into mainstream are, as yet, still relatively low. The LEA’s argument that not only could [the S school] not provide for [IC’s] level of need, but none of its mainstream schools could do so, is not a ground on which it can avoid its legal duties to this child under s.316.

F. [IC] is currently attending a Nursery part-time and we are persuaded that, with a sensitively managed and gradual programme of phased integration, there is no reason why he should not attend a mainstream school. His behaviour is not an issue and we agree that his presence is likely to be of positive benefit to other children. His support assistant will no doubt help other children and training will support other children within school.

G. Section 316(3) specifically states that s.316 does not affect the operation of (amongst other matters) Schedule 27 paragraph 3, i.e. the ability of a parent to express a preference for a school. S.316(4) states that if an LEA decide not to name the school of parental preference, it must comply with s.316(3), i.e. the requirement to educate a child in a mainstream school. Mr and Mrs [C] have expressed a preference for a specific school. The LEA’s only alternative was a special school: it was unable to name any other mainstream school and therefore its argument with regard to the efficient use of its resources would in any event fail under Schedule 27(3), quite apart from the requirement imposed by s.316(4). In short, the LEA can only rely on the incompatibility argument, one that we have already concluded it failed to satisfy the burden of proof.”

It is apparent that the decision was based firmly on the application of section 316(3).

The tribunal went on to address Parts 2 and 3 of the statement, in paragraph I of section 3:

“I. Parts 2 and 3 of [IC’s] current statement, which was drawn up two years ago, are currently the subject of a request for reassessment and form no part of this appeal. Part 3 already specifies a degree of provision that largely meets the level of support [IC] requires, but he will need the support of trained staff. It is clear to us that he will also need access to Makaton, as this seems to have been a most effective method. He will also need the benefit of an experienced teacher, together with 1:1 support, including adult support for safety, independence and self-help skills. There is no evidence to suggest that he needs any more speech and language therapy and physiotherapy on a termly basis. Therefore, in consequence of our order, we believe it is right to make some amendments to the statement at this stage.”

The last sentence, which I have italicised in the quotation, was included in the original decision but deleted in the amended decision.

There followed an Order in the following terms (again showing in italics passages that were included in the initial decision but deleted in the amended decision):

“Slough LEA to delete contents of Part 4 of [IC’s] statement of special educational needs, substituting [IC] should attend mainstream school, namely [the S school]. In consequence of this order, the following amendments to be made to Part 3 of [IC’s] statement headed ‘Educational Provision’:

Paragraph 1 – add

•

Specialist teaching for 1 hour daily from a teacher qualified and experienced in providing differentiated programmes for pupils with significant learning needs

•

Adult assistance at all times throughout the day when the specialist teacher is not with him and this should extend to non-teaching periods.

•

All relevant staff should receive training in the delivery of speech and language programmes, including communication through Makaton signing, and in the delivery of programmes for pupils with developmental delay

Paragraph 5

•

Add ‘termly’ before ‘physiotherapy’ in line 1”.

The central issue is whether the tribunal was entitled to rely as it did on section 316(3) as effectively displacing or trumping the conditions in paragraph 8(2) of schedule 27. As Mr Lewis put it, the question is whether an authority dealing with a request under paragraph 8, and the tribunal dealing with an appeal, can refuse to comply with a request to name a particular mainstream school (1) only on the ground specified in section 316(3)(b), namely that educating a child at that particular mainstream school would be incompatible with the provision of efficient education for other children, or (2) on any of the three grounds specified in paragraph 8, namely unsuitability, incompatibility with the provision of efficient education for other children and incompatibility with the efficient use of resources.

There are also issues concerning the tribunal’s initial amendments to Part 3 of the statement (i.e. the part of the decision that was deleted in the tribunal’s own amended decision) and concerning the rationality of the decision and the adequacy of the tribunal’s reasons if its approach to section 316 was otherwise correct in law.

Mr Lewis summarised as follows the arguments in favour of the view that section 316 governs consideration of a request under paragraph 8. Section 316(3) imposes a duty to educate a child with special educational needs in a mainstream school unless that is incompatible with (a) the wishes of his parent (which, ex hypothesi, does not apply in a case where the parent has requested it) or (b) the provision of efficient education for other children. The provision is entirely general in its terms. Section 316A(3) makes express provision that section 316 does not affect the operation of paragraph 3 of schedule 27. By contrast, there is no express provision that section 316 does not affect the operation of paragraph 8. Therefore section 316 does affect the operation of paragraph 8. It follows that if a parent seeks to substitute the name of a mainstream school for a named special school in Part 4 of a statement, the request cannot be refused on any of the grounds in paragraph 8. In order to comply with section 316, the request can be refused only if educating the child at that mainstream school would be incompatible with the provision of efficient education for other children (i.e. section 316(3)(b)).

As to the arguments in favour of the contrary view, Mr Lewis referred first to the unexpected results to which the application of section 316 could give rise. The description of educational provision in Part 3 of the statement may be geared towards special schooling and may even refer to it, as in this case; and the type of school may be specified in Part 4 as a “special school”, as in this case. If section 316 required a mainstream school to be named, it would or could give rise to inconsistency. The problem becomes particularly acute if, as appears to be the case on existing authority (see R v. Kirklees Metropolitan Council, ex parte Ali (CO/193/2000, unreported judgment of 23 May 2000) and M v. Essex County Council [2001] EWHC Admin 956), the tribunal cannot make amendments to other parts of the statement on an appeal under paragraph 8. Moreover, the power in paragraph 8 is expressed as a power to change the name of the school, not to change the type of school specified in Part 4; nor is there a power to make consequential amendments (contrast paragraph 11(3) of schedule 27). If an authority or the tribunal has no power under paragraph 8 to change the type of school from special school to mainstream school, it cannot sensibly be required to change the name of the school from a named special school to a named mainstream school. Section 316 cannot therefore be intended to impact on the operation of paragraph 8. The absence of any express provision to that effect, by contrast with the express provision in section 316A(3) in respect of paragraph 3, is not a difficulty. Sections 316 and 316A are dealing with the situation at the outset of the statementing process, where the authority must either comply with the parental preference under paragraph 3 or comply with section 316(3). The section 316 duty will therefore have been fulfilled at the stage of making the statement. If, consistently with that duty, the authority has decided that the appropriate type of school is a special school and has named a particular special school, the duty does not need to be reintroduced at the paragraph 8 stage, which is concerned only with a narrow issue as to the name of the school. Any broader questions about the appropriate educational provision or the type of school fall to be raised not under paragraph 8 but on a reassessment or review under section 328.

Mr Lewis accepted that if the second of those two approaches is correct, i.e. that section 316 does not affect the making of determinations under paragraph 8, the tribunal in this case erred in law and its decision would have to be quashed.

For the council, Mr Friel supported the second approach. He submitted that the starting point for consideration of a request under paragraph 8 must be the conditions contained in paragraph 8(2), which the tribunal in this case did not consider. Section 316 does not apply to a decision under paragraph 8. Alternatively, if it does apply, the outcome of the consideration given to the conditions in paragraph 8(2) should be taken into account in considering the application of section 316.

For the parents, Mr Bowen submitted that the first approach was the correct one and that the tribunal did not fall into error in relation to it. Section 316, as substituted by the 2001 Act, introduced a fundamental change, placing a heavy emphasis on educating those with special educational needs in mainstream schools. Mr Bowen referred me to passages in the relevant statutory guidance (DfES Guidance 0774/2001, Inclusive Schooling – Children with Special Educational Needs) describing the strengthened right to mainstream education and how the statutory framework for inclusion works. His case is that section 316(3) overrides the conditions in paragraph 8 of schedule 27 as it does those in paragraph 3. It is clear from section 316(3)(b) that incompatibility with the provision of efficient education for other children is the only remaining basis for refusing education at a mainstream school where a parent requests it. An authority can no longer rely on the conditions in paragraph 3 as to unsuitability or incompatibility with the efficient use of resources. It would therefore be wrong to bring those matters back in at the paragraph 8 stage so as to enable mainstream education to be denied by reference to them.

Mr Bowen also took issue with Mr Lewis’s suggestion that the tribunal lacks the power, on an appeal under paragraph 8, to alter the type of school specified in Part 4 of a statement. He submitted that the power to change the type of school is inherent in the power to change the name of the school. “Type” is not a legal term of art and is not defined in the legislation, but it could be said that there at least nine types of school (primary, middle, secondary; independent; maintained independent; special, mainstream, special with unit (e.g. for autistic children), mainstream with unit). If paragraph 8 were limited to a change of a school within a specified type, it would become almost meaningless and could not be used, for example, where the statement specifies a primary school as the type of school and the child then transfers from primary to secondary education. If it were necessary to go through the section 328 procedure of amendment to the statement, serious delays would arise. The court should not read paragraph 8 in a way that would deprive it of its value as a relatively quick way of securing an amendment to Part 4. There is no policy reason for favouring such a limited construction.

My conclusion on this issue is that the duty under section 316 does not apply to a determination under paragraph 8 of schedule 27. In determining whether to comply with a request under paragraph 8, an authority (and, on appeal, the tribunal) must consider the conditions in paragraph 8(2). If none of those conditions is met, it must comply with the request. If any of those conditions is not met, it need not comply with the request. It does not have to go on to consider section 316(3). Accordingly the situation in relation to paragraph 8 is materially different from that in relation to paragraph 3 as laid down by the Court of Appeal in MH. My reasons for that conclusion are as follows:

It follows that in my judgment the tribunal fell into error in deciding the appeal on the basis that section 316 applied. The error lay at the heart of the tribunal’s reasoning and must lead to the quashing of the decision.

The conclusion I have reached on the main issue makes it unnecessary for me to deal at any length with other issues.

I have indicated already that the tribunal’s powers on an appeal under paragraph 8 do not extend to amending Part 2 or Part 3 of the statement. It follows that the initial decision, which purported to amend Part 3, was plainly unlawful. But the tribunal corrected that error by its amended decision. It had power under regulations 37 and 38 of the Special Educational Needs Tribunals Regulations 2001 to adopt that course; and, although it may not have complied with the procedural requirements, no point is taken on that. Accordingly there is no remaining issue on that aspect of the case. Nevertheless, the fact that the tribunal wished to amend, but was in law unable to amend, the Part 3 provision in order to include the additional teaching assistance that would in its view be needed to support IC in a mainstream school does serve to highlight the unsatisfactory situation that would arise if, contrary to the conclusion I have reached, the tribunal was right that section 316 applied and that a mainstream school had to be named in consequence of its application.

I have also indicated that in my view the tribunal had no power to amend the type of school in Part 4 of the statement. Although this really forms part of my reasoning on the main issue, the fact that the tribunal purported to delete the reference to a special school and to substitute a reference to a mainstream school can also be seen as a separate error. In this case the amended decision did not correct the error. Viewed as a stand-alone point, however, it is not of any real consequence.

If, contrary to the conclusions above, the tribunal’s approach to section 316 was correct in law, Mr Friel had alternative arguments that the decision was nonetheless irrational or inadequately reasoned. I did not find those arguments persuasive, but do not think it necessary in the circumstances for me to dwell on what was a subsidiary part of the case.

On the afternoon before this judgment was handed down, and after a draft had been made available to all counsel, I received from Mr Bowen a written note of additional submissions on behalf of the parents. The note was unexpected and on any view very late, though it appears that Mr Friel and Mr Lewis received it the day before I did. I have had only a limited opportunity to consider the note, and neither Mr Friel nor Mr Lewis has had a realistic opportunity to respond to it. I have formed the view, however, that the further submissions do not cause me to alter the conclusion I had previously reached. In the circumstances I have decided to hand down my judgment in substantially the form already made available to counsel, without a postponement to allow Mr Friel and Mr Lewis to respond to Mr Bowen’s additional submissions and without amendments to reflect those submissions. I have, however, deleted a reference to it being “common ground” that the tribunal’s powers on an appeal under paragraph 8 do not extend to amending Part 2 or 3 of the statement. It was not the subject of argument at the hearing, but it is right to record that it is disputed in Mr Bowen’s additional submissions.

For the reasons given in this judgment the council’s appeal is allowed and the tribunal’s decision is quashed. The matter will be remitted for reconsideration in the light of this judgment.