JK, R (on the application of) v London Borough of Waltham Haringey

This application came before me on 13 March 2009 for a “rolled-up” hearing in accordance with the Order made by His Honour Judge Michael Kay QC sitting as a Deputy High Court Judge on 11 February 2009.

Paragraphs 1 and 2 of that Order provided as follows:-

“(i)

The Application for permission is to be ‘rolled-up’ with a substantive application if permission granted.

(ii)

The Interested Party is to file and serve representations and evidence (if any) within 10 days of today.”

I grant permission for two reasons. First, the issue is a complex one and clearly arguable. Second, I am asked to distinguish the decision of Mr Rabinder Singh QC sitting as a Deputy Judge of the High Court in the case of The Queen on the application of L v (1) London Borough of Waltham Forest (2) Staffordshire County Council [2007] EWHC 2060 (Admin).

The Claimant was represented by Ms Galina Ward of Counsel and the Defendant by Mr Oliver Hyams of Counsel. I am grateful to both of them for their written and oral submissions. The Interested Party is not represented and did not file representations and evidence (if any) as ordered to by His Honour Judge Michael Kay QC. The reason for this appears to be that the London Borough of Waltham Forest was not notified of the Order until after the time limit for filing and serving representations and evidence had expired. By a letter dated 24 February 2009 the London Borough of Waltham Forest wrote to the Administrative Court office explaining this and asking for guidance. It does not appear that that letter was ever answered. In the event the position of the London Borough of Waltham Forest is set out in a letter dated 3 February 2009 to which I will return later.

J.K. is a twelve year old boy (date of birth 7.2.96) who suffers from Attention Deficit Hyperactivity Disorder (ADHD) and he has associated difficulties with his concentration and social skills. He also has dyspraxic tendencies and poor co-ordination skills. These difficulties have led to him experiencing problems with his anger-management and self-esteem. He is currently accommodated by the Defendant Local Authority (“Haringey”) in the area of the Interested Party (“Waltham Forest”) and attending a special school in the area of Waltham Forest despite a Statement of Special Educational Needs originally issued by Haringey in February 2007: bundle pages C14-20. That Statement of Special Educational Needs provides for education in a mainstream school with support. J.K. was permanently excluded from school in April 2008 and has not returned to mainstream education since that date, but there has been no reassessment of his needs and no amendments have been made to his statement. Haringey has asserted that it has discharged any duty it owes to J.K. in this respect by asking Waltham Forest to carry out a reassessment.

There is a detailed account of the history of the case in the witness statement of J.K.’s mother: bundle pages B1-5. In summary, J.K. did well in primary school despite his special educational needs, particularly after receiving his Statement of Special Educational Needs. Part 3 of J.K.’s Statement specifies that he should attend a mainstream school, providing (inter-alia) 12½ hours per week Teaching Assistance Support, who are staff who have had training in meeting the needs of ADHD pupils in a mainstream setting and with specific strategies in place for developing J.K.’s social skills and anger management: bundle pages C17-18.

Unfortunately J.K.’s progress did not continue following secondary transfer and he was permanently excluded from this mainstream secondary school following an incident in April 2008: bundle pages C43-44. Staff at that school had suggested that J.K. required more by way of teaching assistance support, although this never became a formal recommendation. There was no appeal against that permanent exclusion (although J.K.’s mother made representations to the Governors of the school). Shortly thereafter J.K.’s behaviour at home deteriorated to such an extent that his mother requested that Haringey accommodate him under Section 20 of the Children Act 1989. Since August 2008 that accommodation has been provided in the area of Waltham Forest.

At the time of his move to the care placement in Waltham Forest, J.K. was attending a Pupil Referral Unit (“PRU”) in Muswell Hill, following his permanent exclusion. In November 2008 he was moved from the PRU to Belmont Park School, a Special School for “young people with extremely challenging behaviour”. J.K. has not been the subject of any statutory reassessment, and his Statement of Special Educational Needs has not been amended and still provides for placement in a mainstream school with the support set out above.

J.K.’s solicitor wrote to Haringey on 15 September 2008 seeking an urgent reassessment of K’s needs: bundle page E29. After a chasing letter sent on 24 September 2008: bundle page E30, Haringey responded by saying that J.K.’s needs were shortly to be considered by the Complex Needs Panel: bundle page E32. Having heard nothing further, J.K.’s solicitor enquired on 21 October 2008 what the decision of that panel had been: bundle page E33. Haringey’s response was that J.K.’s statement had been transferred to Waltham Forest under Regulation 23 of the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 (“the 2001 Regulations”): bundle page E35.

Following J.K.’s solicitor pointing out that the judgment in R (on the application of L) v London Borough of Waltham Forest and another [2007] EWHC 2060 (Admin) made clear that Haringey retained responsibility under the 2001 Regulations, and again seeking an urgent reassessment of J.K.’s needs: bundle page E36, Haringey sought to clarify its position in a letter of 1 December 2008: bundle pages E39-40. Haringey asserted that it retained financial responsibility for J.K.’s education but had transferred the “administrative management” to Waltham Forest whilst “retaining all oversight of J.K.’s provision”.

J.K.’s solicitor sent a letter under the judicial review pre-action protocol on 15 December 2008: bundle pages E43-46, requiring Haringey to accept full responsibility for J.K.’s provision and carry out a reassessment of his needs as a matter of urgency. Haringey’s response on 2 January 2009 refers to “the long established arrangements for inter-authority SEN provision in Greater London”. Both Haringey and Waltham Forest subscribed to these arrangements: bundle pages E47-48. The letter goes on to say this:

“In J.K.’s case Haringey have specifically requested that Waltham Forest undertake a statutory assessment of J.K.’s needs in order to conclude whether a 52 week placement is appropriate for him. Waltham Forest has refused to undertake the requested assessment. Haringey have indicated strongly that the assessment should be undertaken.”: bundle page E47.

The letter concludes by asserting:

“In the circumstances we consider that Haringey is fulfilling its statutory duties in requiring Waltham Forest to follow Haringey’s instructions to undertake an ESN assessment of (J.K.). The issuing of those instructions is, in our view, wholly compatible with Haringey accepting responsibility for (J.K.’s) education”: bundle page E48.

The letter goes on to suggest that J.K.’s mother appeal to the First Tier Tribunal (Special Educational Needs and Disability) formerly SENDIST.

There is a letter dated 5 December 2008 from Waltham Forest to Haringey: bundle pages E49-50. Although the letter is supposed to have been copied to J.K.’s mother, she has not received it. The material part of the letter seems to me to be as follows:

“The Pre-Assessment Panel considered (J.K.’s) case at the meeting held on Thursday 4 December 2008.

The Panel looked carefully at all the information they received about (J.K.) that was submitted by Haringey SEN Team including the letter from Dr Peter Yates, Barnet, Enfield and Haringey CAMHS and report from Smartcare Services where J.K. is currently living.

The Waltham Forest SEN Panel noted that, although the Haringey Complex Care Panel held on the 25 September 2008 recommended a full neurological assessment, the letter dated 4 September 2008 from Dr Yates, consultant at the Child and Family Consultation Service, does not question the underlying causes of (J.K.’s) ADHD or consider that further assessment is necessary. A neurological assessment would have to be requested by a psychiatrist.

There was also a question raised about J.K. suffering from headache and dizziness in the paperwork, however the Smartcare report dated 19th September 2008 states that he is currently taking his medication – Concerta XL 36mg Prolong – Release Tablets and that there are no other medical concerns.

There is no additional information that suggests that (J.K.’s) Statement does not accurately reflect his current needs.

(J.K.) is no longer travelling to the PRU in Muswell Hill but has a place at Belmont Park a special school for pupils with BESD in Waltham Forest.

The recommendation of the SEN Panel upheld by myself as the representative of the local authority, is that there is no evidence to suggest that a reassessment of (J.K.’s) special needs is necessary and therefore the request is not agreed”.

Section 321 of the Education Act 1996 provides as follows:

“321.

–General Duty of local education authority towards children for whom they are responsible.

(1)

A local education authority shall exercise their powers with a view to securing that, of the children for whom they are responsible, they identify those to whom sub-section (2) below applies.

(2)

This sub-section applies to a child 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)

For the purposes of this part a local education authority are responsible for a child if he is in their area and –

(a)

he is a registered pupil at a maintained school or maintained nursery school,

(b)

education is provided for him at a school which is not a maintained school or maintained nursery school but is so provided at the expense of the authority,

(c)

he does not come within paragraph (a) or (b) above but is a registered pupil at a school and has been brought to the authority’s attention as having (or probably having) special education needs, or

(d)

he is not a registered pupil at a school but is not under the age of two or over compulsory school age and has been brought to their attention as having (or probably having) special educational needs.”

Section 323 of the Education Act 1996 provides as follows:

“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 sub-section (2), they shall serve a notice on the child’s parent informing him –

(a)

that they are considering whether 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 parents right to make representations, and submit written evidence to the authority within such period (which must be not 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 sub-section 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 sub-section (1) and the period specified in the notice in accordance with sub-section (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 sub-section (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 parents of that decision and for their reasons for making it.

(5)

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

Section 323(6) is not relevant in this case.

Section 324 of the Education Act 1996 provides as follows:

“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 sub-section (4).

(4)

In particular 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 which 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.

(4A) Subsection (4)(b) does not require the name of a school or institution to be specified if the child’s parent has made suitable arrangements for the special educational provision specified in the statement to be made for the child.

(5)

Where a local education authority maintains 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 school or maintained nursery school is specified in the statement, the governing body of the school shall admit the child to the school.

(5A) Subsection (5)(b) has effect regardless of any duty imposed on the governing body of a school by section 1(6) of the School Standards and Framework Act 1998.

(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 the effect in relation to the making and maintenance of statements under this section”.

Section 325 of the Education Act 1996 provides for a right of appeal by the child’s parent against a decision by a local education authority not to make a statement and Section 326 provides for a right of appeal by a child’s parent against the contents of the statement. Both of those appeals are to what is now the First Tier Tribunal (Special Educational Needs and Disability).

Section 579 of the 1996 Act is the general interpretation section. Section 579(4) provides as follows:

“(4)

For the purposes of this Act a person shall be treated as belonging, or as not belonging, to an area of a particular local education authority in accordance with regulations; and any question under the regulations shall, in the case of a dispute, be determined by the Secretary of State”.

The Regulations referred to by Section 579(4) of the 1996 Act are The Education (Areas to which Pupils and Students Belong) Regulations 1996 (“the Belonging Regulations”). Regulation 2(1) provides that:

“child looked after by a local authority” has the meaning assigned to it by Section 22(1) of the Children Act 1989”.

Regulation 3 provides:

“3.

General principle

Subject to Regulations 4 to 10 below –

(a)

a person other than a further education student shall be treated as belonging to the area of the education authority in which he is ordinarily resident or, where he has no ordinary residence, the area of the authority in which he is for the time being resident, and

(b)

a further education student should be treated as belonging to the area of the education authority in which he is ordinarily resident.

Regulation 4 provides:

“4 School pupils with statements of special educational needs living in boarding accommodation.

(1)

This regulation shall not apply where Regulation 7 below applies.

(2)

This regulation shall apply in the case of a school pupil –

(a)

for whom a statement of special educational needs is maintained under Part III of the Education Act 1993; and

(b)

who attends a boarding school or who is provided with boarding accommodation in pursuance of Section 50(1) of the Education Act 1944; and

(c)

who does not spend his holidays with the person responsible for him.

(3)

Where the person responsible for such a pupil is ordinarily resident in the area of an education authority, the pupil shall be treated as belonging to that area.

(4)

Where the person responsible for such a pupil is not ordinarily resident in the area of an education authority, or there is no person responsible for the pupil, the pupil shall be treated as belonging to the area of the education authority which maintains the statement”.

Regulation 5 provides:

“5 School pupils with statements of special educational needs and pupils at special schools

(1)

This regulation shall not apply where regulation 4 above, 6 or 7 below applies.

(2)

This regulation shall apply in the case of a school pupil –

(a)

for whom a statement of special educational needs is maintained under Part III of the Education Act 1993; or

(b)

who is registered as a pupil at a special school.

(3)

Where the person responsible for such a pupil is ordinarily resident in the area of an education authority the pupil should be treated as belonging to that area.

(4)

Where the person responsible for such a pupil is resident in England or Wales but is not ordinarily resident in the area of an education authority, the pupil shall be treated as belonging to the area of the authority in which the person responsible for such a pupil is for the time being resident.

(5)

Where –

(a)

the person responsible for such a pupil is not resident in England or Wales, and

(b)

there is a person who has care of the pupil who is ordinarily resident in England or Wales, the pupil shall be treated as belonging to the area of the education authority in England or Wales where such person is ordinarily resident.

(6)

Where the person responsible for the pupil is not resident in England and Wales and there is no person who has care of the pupil in England or Wales, the pupil shall be treated as belonging to the area of the education authority making provision for his education”.

Regulation 6 deals with school pupils resident in hospital and is not relevant to this case.

Regulation 7 provides:

“7 Children looked after by a local authority

(1)

This regulation shall apply to the exclusion of any other regulation which would otherwise apply to such a person.

(2)

This regulation shall apply in the case of a child who is looked after by a local authority –

(a)

for whom a statement of special educational needs is maintained under Part III of the Education Act 1993, or

(b)

who is registered as a pupil at a special school, or

(c)

who is a patient in hospital, and receives education either in a special school established in a hospital or education referred to in Section 298(1) of the Education Act 1991 otherwise than at school, or

(d)

who is a further education student.

(3)

Such a person shall be treated as belonging to the education authority area which coincides with or includes the area of the local authority which looks after him”

I now turn to The Education (Special Educational Needs) (England)(Consolidation) Regulations 2001.

Before I turn to the Education (Inter-authority Authority Recoupment) Regulations 1994 I note that although they continue to remain in force, they were originally made under Section 51 of the Education (No. 2) Act 1986. They continued to remain in force as if made under Section 492 of the 1996 Act and continue to remain in force if they were made under Section 207 of the Education Act 2002 because Section 492 has been repealed and the governing provision is now Section 207 of the 2002 Act.

I now turn to the Education (Inter-authority Recoupment) Regulations 1994. Regulation 3 provides:

“Cases in which Recoupment is required

(1)

This regulation applies to the education of –

(a)

a child for whom a statement of special educational needs is maintained under Part III of the Education Act 1993;

(b)

a person attending a special school; and

(c)

a person who has not attained the age of nineteen years who –

(i)

is a patient in hospital, and

(ii)

receives education in a special school established in a hospital, or education referred to in section 298(1) of the Education Act 1993 otherwise than at school.

(2)

Where provision for any education to which this regulation applies is made by an authority in respect of a person who belongs to the area of another authority, that authority shall pay to the providing authority –

(a)

such amount as the authorities may agree; or

(b)

failing agreement, such amount as may be determined by the Secretary of State”.

Regulation 4 provides

“4.

Cases in which recoupment is permitted

(1)

This regulation applies to primary, secondary and further education and part-time education for those who have not attained the age of five years, but it does not apply to education to which regulation 3 applies.

(2)

Where provision for any education to which this regulation applies is made by an authority in respect of a person who belongs to the area of another authority, that authority may pay to the providing authority such amounts as the authorities may agree”.

Regulation 5 provides:

“5.

Claims for Recoupment

Claims for recoupment shall –

(a)

be made in writing, and specify the person in respect of whom payment is claimed and the amount claimed, and

(b)

be submitted to the appropriate authority within 12 months from the end of the financial year in which the provision for education to which the claim relates was made.

Finally, I turn to Section 101 of The Local Government Act 1972 which provides:

“101 Arrangements for discharge of functions by local authorities

(1)

Subject to any express provision contained in this Act or any Act passed after this Act, a local authority may arrange for the discharge of any of their functions –

(a)

by a committee, sub-committee or an officer of the authority, or

(b)

by any other local authority.

(1A) A local authority may not under sub-section (1)(b) above arrange for the discharge of any of their functions by another local authority if, or to the extent that, that function is also a function of the other local authority and is the responsibility of the other authority’s executive.

(1B) Arrangements made under sub-section (1)(b) above by a local authority (“the first authority”) with respect to the discharge of any of their functions shall cease to have effect with respect to that function if, or to the extent that—

(a)

The first authority are operating or begin to operate executive arrangements, and that function becomes the responsibility of the executive of that authority; or

(b)

the authority with whom the arrangements are made (“the second authority”) are operating or begin to operate executive arrangements, that function is also a function of the second authority and that function becomes the responsibility of the second authority’s executive.

(1C) Subsections (1A) and (1B) above do not affect arrangements made by virtue of section 19 of the Local Government Act 2000 (discharge of functions of and by another authority).

(2)

Where by virtue of this section any functions of a local authority may be discharged by a committee of theirs, then, unless the local authority otherwise direct, the committee may arrange for the discharge of any of those functions by a sub-committee or an officer of the authority and where by virtue of this section any functions of a local authority may be discharged by a sub-committee of the authority, then, unless the local authority or the committee otherwise direct, the committee may arrange for the discharge of any of those functions by an officer of the authority.

(3)

Where arrangements are in force under this section for the discharge of any functions of a local authority by another local authority, then, subject to the terms of the arrangements, that other authority may arrange for the discharge of those functions by a committee, sub-committee or officer of theirs and subsection (2) above shall apply in relation to those functions as it applies in relation to the functions of that other authority.

(4)

Any arrangements made by a local authority or committee under this section for the discharge of any functions by a committee, sub-committee, officer or local authority shall not prevent the authority or committee by whom the arrangements are made from exercising those functions.

…

(12)

References in this section and section 102 below to the discharge of any of the functions of the local authority include references to the doing of anything which is calculated to facilitate, or is conducive or incidental to the discharge of any of those functions”.

The remainder of Section 101 is not relevant to this case.

In this case Mr Rabinder Singh QC (sitting as a Deputy Judge of the High Court) held that Regulation 7 of The Education (Areas to which Pupils and Students Belong) Regulations 1996 meant that the Claimant in that case “belonged to the London Borough of Waltham Forest” albeit that he was residing at a small residential children’s home within the area of Staffordshire County Council.

Mr Singh’s reasoning is set out in paragraph 18 of his judgment as follows:

“18.

In essence I prefer the submissions of counsel for Staffordshire, which were supported for Counsel for JL. My first reason is that the plain words of regulation 7 of the Belonging Regulations apply to this case. Those Regulations are relevant for the purpose of section 579(4) which begins with the words ‘for the purposes of this Act’. Those are general words and are not confined to the question of recoupment. In any event the question of recoupment is now governed by a different Act, the 2002 Act and in particular s 207. Although section 492 of the 1996 Act was repealed, section 579(4) was not. Secondly, as the opening words of regulation 7 make clear in paragraph 1, that regulation applies to the exclusion of any other regulation. If it were necessary to read regulation 23 of the 2001 Regulations is being in some way in conflict with regulation 7 it would follow that regulation 7 takes priority. Thirdly, it is not in truth necessary to read the Regulations as being in conflict in that way. It is possible to read the legislation as a coherent whole in the following way: (1) Regulation 7 governs the question of to which area a child belongs and this helps to determine which local education authority is responsible for maintaining a statement of special educational needs and associated duties. (2) If and when that antecedent question has been determined and a child is to be regarded as belonging to a new education authority, he or she will have moved to that new area and so regulation 23 will become applicable. As counsel for Staffordshire submitted, regulation 23 provides the machinery for transferring the documentation to the new local education authority and also for giving notice to the parent. This is why it lays down quite a short timetable for doing these things. (3) The recoupment regulations operate within their own important but limited sphere to govern financial responsibilities as between local education authorities. This does not affect the antecedent question of which local education authority is responsible for maintaining a statement of special educational needs.

19.

The fourth reason for arriving at the interpretation which I have is that that interpretation sits well, as it seems to me, with the structure of the 1996 Act, in particular section 579(4) which provides for machinery of settlement of disputes between local education authorities by the Secretary of State. It seems sensible that Parliament should have envisaged that there should be machinery to avoid the kind of dispute that has arisen in the present case, which can only be detrimental to the interests of children. My fifth reason is that this interpretation will also serve a useful purpose in that the same authority which is responsible for a child’s needs would be responsible for maintaining the statement of special educational needs, allowing for co-ordination between relevant officials, though no doubt in practice working closely with those who are on the ground in the area where the child is physically present”.

The Claimant submits that I should follow the decision of Mr Rabinder Singh QC and that will inevitably result in finding against the Defendant. The submission is first, that in any event that decision is correct in law and second, that I should not depart from it unless I regard it as clearly wrong. See Mr Stephen Richards QC (sitting as a Deputy Judge of the High Court) in R v Southwark LBC ex-parte Bediako [1998] 30 HLR22 at 25.

Mr Oliver Hyams argues on behalf of the Defendant that the decision of Mr Rabinder Singh QC was wrong in law and that it is the London Borough of Waltham Forest as Interested Party which has the legal responsibility of assessing the educational needs of J.K. and in this case is responsible for the maintenance of the Statement of Special Educational Needs under Section 324 of the Education Act 1996. He submits that J.K. “belongs” within the meaning of Regulation 7 of the 1996 regulations to Haringey which is responsible for meeting the financial costs of the special education provision required by J.K.’s Statement of Special Educational Needs but is not by virtue of Regulation 7 made responsible for the maintenance of the Statement.

In support of his submission Mr Hyams relies on the following matters:

Furthermore, Mr Hyams points to what he calls “good policy reasons” to support his submissions. Thus, for example, if a child is placed a long way away from the area of the local education authority to which it “belongs” for the purposes of the Belonging Regulations, then the local education authority’s officers will be obliged to travel long distances to attend any annual reviews or consult with staff at the school at which the child is being educated. That policy reason does not apply in this case.

Mr Hyams further submits that the key question is whether or not Regulation 7 of the 1996 Regulations can be said in some way to alter the plain meaning of Section 321(3) of the Education Act 1996. He submits that the words in Regulation 7(1) namely:

“This regulation shall apply to the exclusion of any other regulation which would otherwise apply to such a person”.

can only be read as applying to any other regulation and not a provision in primary legislation.

Finally, Mr Hyams submits that Regulation 23 of the Education (Special Educational Needs)(England)(Consolidation) Regulations 2001 is not in conflict with Regulation 7 of the 1996 regulations. He submits that it makes a different provision and is consistent with Section 321(3) of the Education Act 1996. Regulation 7(1) of the 1996 Regulations cannot properly be read as cutting down or nullifying the effect of Regulation 23 of the 2001 Regulation.

Mr Hyams criticises Mr Singh QC’s decision because it focused on Regulation 23 of the 2001 Regulations. He submits that Mr Singh QC did not take into account the fact that Section 321 of the Education Act 1996 must be paramount. Furthermore, he erred in reading the opening words of Regulation 7 of the 1996 Regulations as ousting Regulation 23 of the 2001 Regulations when those opening words were applicable only to the remainder of the 1996 regulations. He submits that the decision of Mr Singh was plainly wrong and I should decline to follow it.

In an alternative submission Mr Hyams submits that by virtue of Section 101(1)(b) of the Local Government Act 1972 it is open to Haringey to arrange for the carrying out of its functions by Waltham Forest. He submits that that is precisely what has happened here: see the letter from the Defendant at bundle page E/47 and the middle section on page 6 of the document to which that letter refers, namely the London Region SEN Project Joint Protocol which is exhibited to the Witness Statement of Amrina Fakir dated 13 March 2009. Ms Fakir is a solicitor employed by the Defendant. Mr Hyams’ submission is that if the Defendant has arranged for its functions to be carried out by the Interested Party then the effect of Section 101(1)(b) of the 1972 Act is that it is the Interested Party which would be the subject of an application for judicial review and not the Defendant which has made the arrangements.

I am unable to accept Mr Hyams’ submissions. I prefer the reasoning of Mr Rabinder Singh QC in the case of R (on the application of L) v London Borough of Waltham Forest and Another and I am more than content to follow it. For the reasons Mr Singh QC gives I am of the view that the legal duty to maintain a statement of special educational needs and ensure that it is applied in practice rests with the Defendant in this case.

In so far as the submissions of Mr Hyams were not considered in the judgment of Mr Singh QC (or were not argued before him) then my conclusions are as follows. First, there is good reason for keeping the distinction between maintenance of the statement and payment for the special educational needs education separate. I can see no good policy reasons for criticising the practical effect of the decision in the L case. No concrete evidence of such practical difficulties has been put before me. Second, I find no conflict between Regulation 7 of the 1996 Regulations and Section 321(3) of the Education Act 1996. Third, the wording of Regulation 7 of the 1996 Regulations is clear. In particular Regulation 7(1) provides:-

“(i)

This regulation shall apply to the exclusion of any other regulation which would otherwise apply to such a person.”

I cannot and do not read Regulation 7(1) as only excluding any other regulation in the 1996 Regulations. The phrase “any regulation” also excludes Regulation 23 of the 2001 Regulations. In any event J.K. has not “moved” to Waltham Forest. His family home remains in Haringey. Regulation 23 has no application to this case.

I turn to Section 101(1)(b) of the Local Government Act 1972. First, there is no statement by the Defendant anywhere in the bundle which asserts that the Defendant has made arrangements for J.K. to be educated within the area of the Interested Party using its powers under Section 101(1)(b) of the 1972 Act. The first time it is raised is in Mr Hyams’ skeleton argument. I do not think that a local authority as a statutory body can attempt to justify its actions by a retrospective reliance on a statutory provision which it did not have in mind when it placed J.K. with the interested party. It clearly acted according to other and different legislation. Second, I do not read the London Region SEN Project Joint Protocol as being anything other than what its title says it is. Thus the introductory rubric says this:

“LEAs subscribing to this joint protocol willingly accept their role as corporate parents and as champions to children in public care. The subscribing LEAs are actively working to improve educational arrangements, provision and outcomes for young people in public care. They acknowledge and accept the expectations of local authorities set out in the Guidance of Education of Children in Care and they have agreed to fulfil or take urgent steps towards fulfilling the responsibilities listed below in respect of pupils with statements of special educational needs in out-of-authority placements”.

The Joint Protocol then sets out a number of ways in which this co-operation will take place. The statutory references given at page 2 of the Joint Protocol do not refer to Section 101(1)(b) of the 1972 Act. I find nothing in the Joint Protocol which conflicts with my conclusions.

For these reasons, this claim for judicial review is allowed against the Defendant. I will hear Counsel as to the exact terms of the Order which the Court should make and as to costs.