O, R (on the application of) v Wiltshire County Council & Anor

MR JUSTICE ELIAS: The claimant in this case is the father of a child, his son "T", who has special educational needs. The son was born with microcephaly spastic diplegia and severe learning difficulties. He is non-verbal, cannot stand unaided and requires assistance with his daily living skills. The claimant challenges the decision of the Special Education Needs Tribunal made in April this year. The Tribunal heard an appeal against the statement of special educational needs which the first respondent, Wiltshire County Council, had made pursuant to section 334(?) of the Education Act. Wiltshire have been represented before me and, as is usual, the Tribunal is not being represented.

The appeal was directed initially at various aspects of Parts 2, 3 and 4 of the statement. The Tribunal heard evidence on two days; the first on 26th January, followed by a later hearing on 18th March. The adjournment was to deal with evidence that had come into the Tribunal late. By the time of the second hearing, there had been considerable agreement between the parties. They had resolved their differences in relation to Part 2 but there were still certain outstanding matters which had not been agreed in relation to Part 3.

The principal dispute, however, concerned the identification of the school in Part 4. T went to a maintained special for children with only moderate multiple learning difficulties. The parents wanted a residential placement at a non-maintained school for children with special educational needs because of their disabilities and associated learning difficulties. The parents wanted a boarding place for a 38-hour week and they contended that the maintained school was not an appropriate provision to meet the educational needs of T. The Tribunal found against them on this.

During the course of the hearing before me, I was informed by Mr Friel, acting for the appellant, that in the very near future the family is moving to Lincolnshire. They have already sold their house in Wiltshire. It is common ground that, following the move, neither school would be appropriate for T. It seemed to me, and counsel for both parties agreed, that in the circumstances there could be no purpose at all in determining whether the Tribunal had properly named the maintained school as the appropriate school. Whatever decision the Tribunal might take on any reconsideration would be entirely academic. It will be for Lincolnshire now to have to determine what school is appropriate to meet the needs of T.

That did not, however, render the whole appeal academic. That is because the statement of educational needs is transferred from one local authority to another when a child moves into the jurisdiction of a new authority (see the Education (Special Education Needs) (Consolidation) Act 2001 section 23). It is common ground that the effect of that Act is that Lincoln will be bound by the current statement, at least until they make a fresh assessment of their own. Accordingly, there is still a need to resolve the differences in respect of Part 3. However, following the recognition that the identity of the appropriate school was no longer in issue, the parties were able to agree their differences in the following way.

Mr Friel agreed not to pursue certain matters which I need not set out. Mr Beard for his part accepted that there was one matter specifically raised by the Tribunal, which is a matter of real concern to the parents, which the Tribunal has not specifically dealt with at all. It was agreed that the matter ought to be remitted back to a fresh Tribunal for resolution of that issue. That is the question of what provision should be made for hydrotherapy and certain relevant associated facilities. Accordingly, the parties agreed, subject to my agreement, that the case should be remitted in that way. I consider that it is a proper way of resolving the appeal. The matter was plainly not dealt with on its face by the Tribunal.

Of course, Wiltshire have no continuing interest in this matter and therefore the appropriate authority to be heard in the appeal, on the face of it, seems to be Lincoln. However, it is not for me at this stage to substitute these parties. Once the child has become the responsibility of Lincoln, it will be for the President of the Tribunal to determine whether any such steps should be taken after hearing representations from the local authorities (see regulation 43 of the Special Educational Needs Tribunal Regulations 2001). In addition, the President has the power to transfer an appeal to another Tribunal if it can more conveniently determine the matter, pursuant to regulation 41. Of course Lincoln and the appellant may come to an agreement about these matters, or alternatively Lincoln may carry out a fresh assessment of their own. Provided it is carried out sufficiently speedily, it may render the appeal otiose. It depends. It cannot be predicted at this stage.

In any event, I make the order which has been agreed between the parties, including that there should be no order as to costs save that the appellant's costs should be assessed for the purposes of the Legal Service Commission assessment. I should add that the appellant did not serve the notice of appeal in good time, pursuant to CPR Part 52, 4(3)(b). However, I make an order extending time to 1st July 2004, and the appeal was served by that date. This may have been a live issue if the question of the appropriate school had still been of significance, because Mr Beard wished to contend that the failure to serve had prejudiced his clients because they had taken steps on the assumption that no appeal would be advanced. However, that is no longer a problem for him. I am satisfied it is a proper case in which to extend time. Thank you very much.

MR FRIEL: My Lord, we are grateful for the time given to both parties to resolve this matter.

MR JUSTICE ELIAS: I will sign this. If you can put in a typed version at some point.

MR FRIEL: My Lord, I would be happy to.