X County Council v DW & Ors

A point has arisen in the context of care proceedings as to the respective functions of the family court when exercising its jurisdiction under Part IV of the Children Act 1989 and of the Special Educational Needs and Disability Tribunal (“SENDIST”) when hearing an appeal pursuant to section 326 of the Education Act 1996. It may be convenient not just to the parties but also to a wider audience if I amplify, albeit comparatively briefly, certain observations I made during the course of the hearing.

The relevant facts can be stated very shortly. I have for some time been hearing care proceedings in relation to a 10-year old boy who I will refer to as SW. SW suffers from autistic spectrum disorder and associated behavioural difficulties of a kind that suggests he needs special education. His parents profoundly disagree. They believe him to be an academically able child who is perfectly capable of coping with mainstream schooling, notwithstanding that they have in fact been educating him at home. After a contested interim hearing I made an interim care order on 28 May 2004 in favour of the local authority, X County Council. X County Council is also the local education authority and on 10 December 2004 it made a statement of special educational needs in accordance with section 324 of the Education Act 1996. Part 4 of that statement identified a particular school – which I shall refer to as the Y school – as the school specified in the statement. It is a special school maintained by X County Council. On 14 December 2004, at the conclusion of what had been intended to be the final hearing of the care proceedings, I gave judgment in favour of the local authority. However, for reasons quite unconnected with the point with which I am here concerned, I decided to renew the interim care order rather than make a final care order. The care proceedings will accordingly be returning for further consideration by me in due course. I approved an interim care plan which provided for SW to be educated at the Y school.

As it happens therefore – and hardly surprisingly given that X County Council is involved in both capacities – there is no conflict of any kind between the local education authority’s statement of special educational needs and the local authority’s care plan. Both recognise that SW has special educational needs arising out of his autistic spectrum disorder and both contemplate that SW will be educated at the Y school. The local authority and the children’s guardian, however, are concerned as to what the consequences would be were SW’s parents to exercise their right of appeal to SENDIST under section 326 of the Education Act 1996 and were SENDIST to exercise its powers under section 327 in such a way as to conflict with the care plan I have approved.

I need not go through the scheme of the Education Act 1996 in any detail. As is well know, section 324 provides for the making by the local education authority in appropriate cases, and after assessment in accordance with section 323, of a statement of special educational needs. Part 2 of the statement describes the child’s special educational needs, Part 3 sets out the special educational provision to be made to meet those needs, and Part 4 identifies the placement at which the provision is to be made. Usually that provision will be made in a school. But section 319(1) provides that:

“Where a local education authority are satisfied that it would be inappropriate for –

(a)

the special educational provision which a learning difficulty of a child in their area calls for, or

(b)

any part of any such provision,

to be made in a school, they may arrange for the provision (or, as the case may be, for that part of it) to be made otherwise than in a school.”

Section 324(5) provides as follows:

“Where a local education authority maintain 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 … is specified in the statement, the governing body of the school shall admit the child to the school.”

It will be noticed that there is no compulsion on a parent to accept the special educational provision specified in the statement. Parents are free to make other “suitable arrangements” for their children. It is only if they do not that the local education authority is under a duty to arrange the special educational provision and that a maintained school specified in the statement is under a duty to admit the child.

Appeals to SENDIST are regulated by section 326. Section 326(1) provides, so far as relevant for present purposes, that:

“The parent of a child for whom a local education authority maintain a statement under section 324 may appeal to the Tribunal … ”

Section 576 (1) provides that:

“In this Act, unless the context otherwise requires, “parent”, in relation to a child or young person, includes any person –

(a)

who is not a parent of his but who has parental responsibility for him, or

(b)

who has care of him,

except that in section 499(8) it only includes such a person if he is an individual.”

Section 576(3) provides that:

“In subsection (1) “parental responsibility” has the same meaning as in the Children Act 1989.”

The effect of all this, as Mr Oliver points out, is that in the present case the local authority, in its capacity as SW’s corporate parent, is a “parent” for the purposes of section 326: see Fairpo v Humberside County Council [1997] ELR 12 at p 16.

Sections 326(3)-(5), defining the powers of SENDIST when hearing an appeal, provide as follows:

“(3)

On an appeal under this section, the Tribunal may –

(a)

dismiss the appeal,

(b)

order the authority to amend the statement, so far as it describes the authority’s assessment of the child’s special educational needs or specifies the special educational provision, and make such other consequential amendments to the statement as the Tribunal think fit, or

(c)

order the authority to cease to maintain the statement.

(4)

On an appeal under this section the Tribunal shall not order the local education authority to specify the name of any school in the statement (either in substitution for an existing name or in a case where no school is named) unless –

(a)

the parent has expressed a preference for the school … or

(b)

in the proceedings the parent, the local education authority, or both have proposed the school.

(5)

Before determining any appeal under this section the Tribunal may, with the agreement of the parties, correct any deficiency in the statement.”

Unless SENDIST makes an order under section 326(3)(c) the statement will remain in force, albeit amended perhaps by SENDIST. But, whether or not the statement has been amended, section 324(5) will continue to apply to it. So there is no more compulsion on a parent to accept the special educational provision specified in a statement which has been approved or amended by SENDIST than in the case of a statement which has not.

A statutory appeal lies from SENDIST to the High Court on a point of law pursuant to section 11 of the Tribunals and Inquiries Act 1992. But the only persons who can exercise this right of appeal are the parent or the local education authority; the child himself cannot appeal: S (A Minor) v Special Educational Needs Tribunal [1995] 1 WLR 1627, affirmed on appeal [1996] 1 WLR 382, and Fairpo v Humberside County Council [1997] ELR 12 at pp 15-16. However, this limitation on the right of appeal would not necessarily prevent the child, or someone on the child’s behalf, applying to the Administrative Court for judicial review of a decision by SENDIST, assuming the grounds for such an application were to be made out.

On one level of abstraction the present case is merely an example of a category of cases with which the Family Division has long been familiar. There are, for example, the problems posed for a family court when it is seeking, whether in private or public law proceedings, to protect a child who is at the same time subject to the immigration control powers of the Secretary of State for the Home Department: see In re Mohamed Arif (An Infant) [1968] Ch 643, R v Secretary of State for the Home Department ex p T [1995] 1 FLR 293, Re A (Care Proceedings: Asylum Seekers) [2003] EWHC 1086 (Fam), [2003] 2 FLR 921, and R (Anton) v Secretary of State for the Home Department, Re Anton [2004] EWHC 2730/2731 (Admin/Fam). Similar issues arise when care proceedings are brought in relation to a baby who is accommodated with its mother in a prison mother and baby unit: see London Borough of Islington v TM [2004] EWHC 2050 (Fam) referred to in R (Anton) v Secretary of State for the Home Department, Re Anton [2004] EWHC 2730/2731 (Admin/Fam) at para [39]. And the issues are conceptually no different when the Family Division is concerned with an incompetent adult whose carers have invoked the inherent jurisdiction of the High Court at the same time as there are disputes as to the provision by the local authority of services under the community care legislation (the National Assistance Act 1948, the Chronically Sick and Disabled Persons Act 1970 and the National Health Service and Community Care Act 1990): see A v A Health Authority, In re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, and R (A, B, X and Y) v East Sussex CC and Disability Rights Commission (No 2) [2003] EWHC 167 (Admin), (2003) 6 CCLR 194.

In just the same way the Family Division is familiar with the problems which may arise out of the intersection of the differing responsibilities of the family court and the local education authority when considering the education of a ward of court: see In re B (Infants) [1962] Ch 201 and In re D (A Minor) [1987] 1 WLR 1400 and the discussion of those two cases in A v A Health Authority, In re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, at paras [49], [53], [57]-[58], [115]-[116].

I need not rehearse all the learning to be found in these judgments. I can take it as read. For present purposes the key principles can be summarised very shortly as follows.

(1) Deciding where a child should go to school is an aspect of parental responsibility: In re Z (A Minor) (Identification: Restrictions on Publication) [1997] Fam 1 at p 26.

(2) Where the court has made either an interim or a final care order parental responsibility is shared with the local authority: sections 33(3)(a) and 31(11) of the Children Act 1989. Subject to the limitations in sections 33(4) and 33(6), section 33(3)(b) confers on the local authority the “power … to determine the extent to which a parent … of the child may meet his parental responsibility for him.” Accordingly it is, in the final analysis, for the local authority and not for the parent to decide where a child in care should go to school. Section 33(3)(b) does not, however, prevent the parents of a child in care exercising their right of appeal to SENDIST under section 326 of the Education Act 1996: see Fairpo v Humberside County Council [1997] ELR 12 at p 18.

(3) A parent can decide where a child is to go to school only in the sense of deciding as between two or more schools each of which is willing to accept the child as a pupil. A parent cannot compel a privately run school to accept a pupil who the school is, for any reason, unwilling to admit. Nor, unless the parent can point to some statutory provision – in the Education Act 1996 or elsewhere – compelling the school to accept a pupil, is the position in principle any different merely because the school in question is a state school.

(4) Neither a local authority (in its capacity as corporate parent of a child in its care) nor the family court is in any better position than a parent to compel a school to accept a pupil. The Family Division, even when exercising its powers under the inherent or wardship jurisdiction, cannot compel an unwilling private organisation to provide a ward of court with education: see Re C (A Minor) (Wardship: Jurisdiction) [1991] 2 FLR 168 (independent school refusing to admit ward of court). Nor can the Family Division exercising its powers, whether under the Children Act 1989 or under the wardship jurisdiction, compel an unwilling education authority to provide a child with education. The Family Division cannot properly exercise even the wardship jurisdiction so as to interfere with the statutory duties of education authorities. If an education authority is to be compelled to admit a pupil it can only be because the relevant legislation so provides. And any dispute as to whether the education authority is exercising its powers properly raises matters of public law to be determined by reference not to the principles of family law but to the principles of substantive public law applied by the Administrative Court: see A v A Health Authority, In re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, at paras [49], [53], referring to In re B (Infants) [1962] Ch 201 and In re D (A Minor) [1987] 1 WLR 1400.

(5) In the same way, the Family Division cannot dictate to SENDIST how it is to exercise its statutory jurisdiction in relation to a child who happens to be a ward of court or subject to a care order. The functions of the family court under the Children Act 1989 and of SENDIST under the Education Act 1996 are, by and large, separate and distinct. The family court and SENDIST are performing different functions. The family court when exercising its powers, either under the Children Act 1989 or in wardship, necessarily has to apply a different test from the test that SENDIST applies. Of course, everyone at the end of the day is, in a sense, concerned with the same thing – the child’s educational needs and welfare – and therefore so far as the child’s education is concerned the ultimate questions for both the family court and SENDIST are very similar: see A v A Health Authority, In re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, at paras [115]-[116]. But different tests nonetheless apply. So far as concerns SENDIST the matter is regulated by sections 324 and 326 of the Education Act 1996. In contrast the family court has to apply the principle in section 1(1)(a) of the Children Act 1989 that the child’s welfare is the paramount consideration.

(6) Given that the ultimate questions for both the family court and SENDIST are so similar there is no reason to jump too readily to the conclusion that they will end up coming to different conclusions. If they do, then the resulting problem becomes one of public law, to be resolved by reference not to the principles of family law but to the relevant principles of substantive public law: see A v A Health Authority, In re J (A Child), R (S) v Secretary of State for the Home Department [2002] EWHC 18 (Fam/Admin), [2002] Fam 213, at para [116].

(7) The family court cannot dictate to SENDIST how it is to determine an appeal under section 326 of the Education Act 1996. Nor, of course, can SENDIST voluntarily surrender to the family court its statutory obligation to determine such an appeal. But in practical terms SENDIST will have to take into account any order made or views expressed by the family court. As Hoffmann LJ said in R v Secretary of State for the Home Department ex p T [1995] 1 FLR 293 at p 297 when considering the respective functions of the family court and the Secretary of State in relation to a child who is subject to immigration control:

“Clearly, any order made or views expressed by the court would be a matter to be taken into account by the Secretary of State in the exercise of his powers. If he simply paid no attention to such an order, he would run the risk of his decision being reviewed on the ground that he had failed to take all relevant matters into consideration.”

In the same way, if SENDIST fails to take adequately into account any relevant order or judgment of the family court it will run the risk of its decision being reviewed by the High Court – reviewed either by way of statutory appeal or on an application for judicial review.

(8) However, the Administrative Court cannot strike down a decision of SENDIST, nor will a statutory appeal to the High Court necessarily succeed, merely because SENDIST’s view as to where and how the child should be educated differs from that of the family court judge. The family court and SENDIST are performing different functions and applying different statutory criteria. A statutory appeal from SENDIST lies only on a point of law. And a decision of SENDIST can be challenged by way of judicial review only on the basis of the familiar principles governing all claims for judicial review: illegality, procedural irregularity or irrationality. As Hoffmann LJ went on to observe in ex p T at p 298:

“The court and the Secretary of State are performing different functions. It does not follow that because the court, applying its criteria of the welfare of the child, refuses to dismiss the application, the Secretary of State should not exercise his powers of deportation or removal. He may therefore take the view that whatever the court may decide about the welfare of the child, policy requires removal or deportation. Provided that such a decision is not irrational or procedurally irregular, the court cannot declare it unlawful.”

(9) This means that there may end up being a theoretical impasse, the family court taking one view as to where and how the child should be educated and SENDIST (or the High Court following a statutory appeal or a judicial review) taking another. But in the light of section 324(5) of the Education Act 1996 this impasse is more theoretical than real. In the final analysis, the family court is no more bound in practical terms by a decision of SENDIST than is a parent. There is no compulsion on a parent to accept the special educational provision specified in a statement of special educational needs, even if it has been approved or amended by SENDIST. Parents are free to make other “suitable arrangements” for their children. And the family court is in no worse position than a parent. No doubt the family court will pause before differing from the carefully considered view of SENDIST. But SENDIST can no more dictate to the family court how it is to exercise its powers under the Children Act 1989 than the family court can dictate to SENDIST how it is to determine an appeal under section 326 of the Education Act 1996. And if the family court is able to make other “suitable arrangements” for the child’s education – if, in other words, it can find some other suitable school which is willing to accept the child as a pupil – then the family court is not obliged to agree that the child be sent to the school identified in Part 4 of the statement.