HW & Anor v Bedfordshire County Council & Anor

MR JUSTICE STANLEY BURNTON: This is a statutory appeal of the parents of HW on a decision of the Special Educational Needs and Disability Tribunal given on 20th November 2003 following a long, two day hearing on 9th October and 20th November 2003. H's parents had appealed under section 326 of the Education Act 1996 against the contents of a Statement of Special Educational Needs made by their Local Education Authority, Bedfordshire County Council.

There was before the Tribunal a draft statement which had been prepared by counsel on behalf of H's parents. It had been the subject of negotiation between the parties before the hearing, and was the subject of consideration during the hearing.

H is profoundly disabled. He has spastic quadriplegic cerebral palsy. That affects his right side more severely, and he is registered as partially sighted. He has significant learning difficulties. Those difficulties are referred to in the decision of the Tribunal and are set out in the statement of his needs to which I have referred.

No amended Statement of Special Educational Needs has been issued following the decision of the Tribunal, but I have before me the Statement as drafted and amended and indeed initialled on behalf of the parties before and during the course of the hearing, which was referred to by the Tribunal and, indeed, appended to their decision.

The appellants are represented before me by Mr Friel of counsel. Neither the Tribunal nor the Local Education Authority has appeared on this appeal. In those circumstances, it has been necessary for me to be satisfied that this is an appropriate case in which to allow the appeal.

A number of issues have been raised in relation to the decision of the Tribunal. I heard Mr Friel on the first and perhaps the principal issue only. Being satisfied that that ground for appeal was made out, I did not hear any argument as to his remaining grounds of appeal since, in the circumstances, I concluded that I was bound to allow the appeal and remit the case to a fresh tribunal.

As is well known, a Statement of Special Educational Needs must both define the needs of the child in question and specify the means by which that need is to be met. One of the issues, indeed the principal issue before the Tribunal, concerned the school which H should attend following the decision of the Tribunal. At that date, he was at a residential school, St Mary's. At St Mary's, as the evidence before the Tribunal showed, he received not only educational provision during normal school hours but educational provision outside of school hours on three days a week after 7.15 am, during lunch, and during evenings.

The appellants' evidence before the Tribunal ascribed H's recent improvement to that intense educational provision. It was a provision they wished to continue. They contended that he required educational provision outside of school hours and, indeed, in a residential school.

The need for that provision appeared from the draft Statement of Educational Needs, and from the provisions in part 2, which were agreed. For present purposes, it is sufficient to refer to the passages of that Statement at pages 55 and 56 of the bundle. The Statement summarised the position by stating that:

It is obvious that all of those points, other than the first, are not necessarily confined to school hours. In any event, there was an issue clearly raised, according to the evidence before me, which has not been contested, as to the need for provision out of school hours. It was because of that need that there was an issue as to the school which H should attend, with his parents arguing for a continuation at St Mary's, and the local education authority arguing for his attendance at a day school known as "Ridgeway" which, it contended, could provide education for him at a significantly lower cost.

The local education authority accepted before the Tribunal that provision was needed outside of school hours. Their argument was that provision could and should be made by the local authority's Social Services department. What provision would be made by the Social Services department, however, was not specified in evidence from the local authority, nor was it addressed by the Tribunal.

The Tribunal's decision is effectively confined to the question: which school was appropriate for H? The Tribunal decided that his educational needs could appropriately be provided at Ridgeway. In doing so, however, they did not address the issues that had been raised as to the need for provision outside of school hours. As I have already indicated, the local authority accepted in evidence that such provision was required. Indeed, the headmaster of Ridgeway accepted that his school would be unable to make the kind of provision which H was receiving at St Mary's; a provision which part 2 of the statement, in so far as it was agreed, indicated was necessary.

In these circumstances, it is clear to me that the Tribunal failed to address in its decision a central and important issue raised by the present appellants.

The only place in its decision and in the draft Statement where it might be said that the issues raised by the case for H's parents for provision outside of school hours was addressed was in a reference at page 5 of the draft to the provision of a package of care. That reference is insufficient to meet the requirements of the Education Act, or, indeed, the requirement that the Tribunal's decision addressed the contentions raised by H's parents and determined the issues resulting from them.

The reference to a provision of a "package of care" at page 5 of the draft statement is clearly a reference to a package of care to be provided in an educational setting, that is to say, at a school. The draft, of course, had originally been formulated on the basis of a contention that a residential school provision was appropriate, and in such a context, a package of care within the school would be sufficient or could be sufficient to meet the needs identified in part 2. However, as already appears, the provision of education in a residential school was not agreed, and in fact was rejected by the Tribunal.

In those circumstances, the reference to a "package of care" within the context of an educational setting fell to be considered. If H were not at a residential school, the provision of a package of care would have to be outside the school, or, if at the school, at least outside school hours. That matter was not addressed by the Tribunal. Moreover, once the package of care fell outside a school context, it needed to be specified. There is some debate in the papers as to whether the phrase "a package of care" is a term of art. I need not consider or determine that question. What is clear is that the mere use of that expression does not specify the provision required to meet an identified need. The contents of the package has to be identified, or at least the means by which and the persons by whom the contents of the package are to be determined.

The Statement in the present case does not fulfil those requirements. Far from it, it is quite clear from the evidence that the school, by which I mean Ridgeway, would not, on the evidence before the Tribunal, be able to provide the kind of package of care which St Mary's was then providing, to which the package of care no doubt originally referred before the deletion of the reference to a 24-hour curriculum.

In those circumstances, the decision of the Tribunal is defective in that it failed to address important issues raised by H's parents, and the statement that was produced failed to specify a provision to meet needs identified in part 2. Those defects, in my judgment, are sufficiently grave to require the decision to be quashed and the matter to be remitted.

I would mention one other matter only, and that is this: the local authority gave an estimate of the cost of providing education at Ridgeway School. That cost was accepted by the Tribunal who compared it with the cost to the local authority of providing education at St Mary's, and the Tribunal, in giving preference to education at Ridgeway, took into account the desirability of avoiding "unreasonable public expenditure", as referred to in section 9 of the Education Act 1996. Since the Local Education Authority accepted that provision needed to be made of some kind by Social Services, and the Social Services department was of the same local authority, and the cost of the provision of those services, if H attended Ridgeway school, was unspecified and unknown, it is far from clear to me that the Tribunal were in a position to make the kind of comparison required by section 9 or to determine whether it had been shown that the choice of Ridgeway over St Mary's was supported by the need to avoid unreasonable public expenditure.

I do not decide in the present case whether the reference to unreasonable public expenditure in section 9 of the Act is a reference only to the educational budget of the local authority. I understand that there are conflicting decisions of the High Court so far as that is concerned. I would not wish to be seen as in any way suggesting that the words "unreasonable public expenditure" in section 9 are to be confined to expenditure within the educational budget of a local authority with the result that public expenditure by another department of a local authority is to be ignored. That is, no doubt, an issue which may have to be decided on another occasion. At the moment, it is sufficient to say that for the reasons I have given, the appeal will be allowed.

It seems to me that the appropriate order is that the decision is quashed and the matter is remitted to a fresh tribunal.

MR FRIEL: My Lord, yes, that is the only application we seek.

MR JUSTICE STANLEY BURNTON: And there is no application for costs?

MR FRIEL: My Lord, we are restrained by that authority which I actually appeared in, I am afraid. Whether it be right or wrong, we lost it years ago.

MR JUSTICE STANLEY BURNTON: Thank you for your help, Mr Friel. I look forward to reading about the meaning of "unreasonable public expenditure".