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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> D (A Child), R (on the application of) v Birmingham City Council  EWHC 1319 (Admin) (12 June 2009)
Cite as:  ELR 398,  EWHC 1319 (Admin)
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QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| The Queen on the application of D
(a child acting by her mother and Litigation Friend AD)
|- and –
|Birmingham City Council
Paul Greatorex (instructed by Birmingham City Council) for the defendant
Hearing date: 3 June 2009
Crown Copyright ©
Mr Justice Silber:
II The Statutory Background
"[The] child's special educational needs, in terms of the child's learning difficulties which call for special educational provisions, as assessed by the authority".
III The Issues
i) Whether the claimant is correct in the assertion that the January 2009 decision should be set aside as the defendant failed to amend the SSEN and thereby ignored the views of its own educational psychologist (Ground 1):
ii) Whether, as the claimant contends, the defendant acted in an irrational manner and ultra vires its powers under the 1996 Act and/or the Regulations when it reached the January 2009 decision that the claimant's SSEN "should not be amended as regards provision or placement even though, as recorded in successive versions of the SSEN, she has made no or no real progress in literary skills from the age of 9" (Ground 2); and
iii) Whether the claims can be rejected because there was an alternative remedy available to the claimant and/or there has been a delay which precludes the claimant from succeeding (Issue 3).
IV Ground 1
"Literacy skills – 8 years and 8 months – this made her two years behind
Spelling – 8 years and 9 months".
"this recent test was four years after the last test done. Since the last test there have been two years progress hence [the claimant] has made two years progress in four years".
1. "Part 2 of the statement should describe all the child's learning difficulties identified during the statutory assessment. It should also include a description of the child's current learning- what the child can and cannot do" (the word "all" was emphasised in the original) (paragraph 8.32).
2. The purpose of the annual review is that it:-
"..should aim.. (iv) to consider the continuing and appropriateness of the statement in the light of the child's performance during the previous year, and any additional special educational needs that have become apparent in that time, and thus to consider whether to cease to maintain the statement or whether to make any amendments including any further modification or disapplication of the national curriculum.." (paragraph 9.7).
3. "Amendments [to the SSEN] are likely to be recommended if:-
- Significant new evidence has emerged which was not recorded on the statement" (paragraph 9.30).
"The authority having carefully considered the contents of the report has decided to make the following recommendations:-
"(a) the review report does not recommend any changes to [the claimant]'s statement of special educational needs. The Authority does not propose to make any amendments to the statement and recommends that it should continue to be maintained in its present form without any changes…".
"37 ... The function of the court is not to take the primary decision but to ensure that the primary decision-maker has operated within lawful limits…the essential concern should be with the lawfulness of the decision taken: whether the procedure was fair, whether there was any error of law, whether any exercise of judgment or discretion fell within the limits open to the decision maker, and so forth . . ."
V Ground 2
"She has clearly made progress with both literacy and numeracy skill. Especially her numeracy. Continue support strategies which are still working".
VI Ground 3