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You are here: BAILII >> Databases >> England and Wales Court of Appeal (Civil Division) Decisions >> Essex County Council v Williams [2011] EWCA Civ 1315 (15 November 2011)
URL: http://www.bailii.org/ew/cases/EWCA/Civ/2011/1315.html
Cite as: [2011] EWCA Civ 1315, [2012] PTSR 713, [2012] ELR 1, [2012] AACR 24, [2011] FLR 1427

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Neutral Citation Number: [2011] EWCA Civ 1315
Case No: C3/2011/1083

IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE UPPER TRIBUNAL
ADMINISTRATIVE APPEALS CHAMBER (Judge Jacobs)
Ref No: S30942009; [2010] UKUT 74 (AAC)

Royal Courts of Justice
Strand, London, WC2A 2LL
15/11/2011

B e f o r e :

Lord Justice Maurice Kay,
(Vice President of the Court of Appeal, Civil Division)
Lord Justice Moses
and
Mrs Justice Baron

____________________

Between:
Essex County Council
Appellant
- and -

Mr Antony John Williams
Respondent

____________________

Ms Fiona Scolding (instructed by Essex County Council) for the Appellant
Mr David Wolfe (instructed by Levenes) for the Respondent
Hearing date : 19 October 2011

____________________

HTML VERSION OF JUDGMENT
____________________

Crown Copyright ©

    Mrs Justice Baron DBE :

  1. The issue in this appeal concerns the age at which a Local Authority's (LA) responsibilities in respect of maintaining a child's Statement of Special Educational Needs ("SEN") come to an end. It is an issue of general importance because there are in excess of 230,000 children in England and Wales with Statements of SEN.
  2. The Factual Matrix

  3. MW was born on the 26th August 1989 (22 years old). She has Down's Syndrome with the result that her functional age is about 10 years or less. She has severe learning difficulties and special vulnerabilities which affect her ability to be independent and self protective. Her physical health, as a result of complications related to her Down's Syndrome, is not as robust as it should be. Despite all these difficulties, she enjoys her life and brings great joy to her parents who love her and who have shown enormous devotion over the years. Their care commands the Court's admiration.
  4. MW has had a Statement of SEN maintained by Essex County Council ("the Local Authority") since about 1992 (when she was 3 years old). She started school at 5 years and attended mainstream education until she was 16 years. In September 2006 she transferred to C College, a school which specialises in pupils with severe and complex learning difficulties from the age of 2 years up to 19 years. It would seem that MW flourished within that environment, particularly enjoying drama lessons.
  5. In February 2008 the Local Authority wrote to MW's parents specifying that they would cease to maintain her Statement of SEN from July 2008 (a short time before her 19th birthday). Her parents did not accept this decision. Consequently, her father, Mr W, engaged the statutory appeals procedure and was successful in the First Tier Tribunal. The favourable decision was on the basis that MW's schooling had been interrupted by ill health and so she should be provided with an additional year's education. The statutory basis for that decision is not clear given that MW was already 19 years when it was handed down. However, it must be accepted that the outcome was in line with the relevant Code of Practice, issued pursuant to Section 313 of Education Act 1996 (the Act). At paragraph 9.61 it provides that
  6. "....Some pupils with statements of special educational needs will need to remain in school after the age of 16. LEA's remain responsible for such pupils until they are 19. There will be occasions where the natural completion of an academic year or completion of a particular course would take pupils with a statement beyond their 19th birthday. The Learning and Skills Council, when it becomes responsible for funding sixth form provision, will, as a condition of funding, require LEA's in those situations to maintain statements until the end of the academic year in which their 19th birthday falls" [emphasis added].
  7. Some months later, on 13th March 2009, the Local Authority wrote to MW's parents once again indicating that they would cease to maintain her Statement. This was on the basis that (a) there was a possibility that the school would not admit M for a further year as she was above their age limit; (b) MW's special educational needs could be met by attendance at a College of Further Education in the locality (which had indicated that it could meet her needs); (c) MW could and should begin to interact socially with young people of her own age group rather than remain at school where all other pupils were at least two years younger.
  8. The Tribunal proceedings

  9. MW's parents did not accept this decision and her father appealed against it on the 14th May 2009. In particular, he did not agree that a College of Further Education (FE) could meet MW's needs. Both her parents wanted MW to have a further transitional year at C College whilst assessments were made for appropriate future provision. They argued, inter alia, that as MW functioned at a level far below her chronological age, she should continue in her placement at secondary school and that establishment should continue to provide her with support and education for such period as she required.
  10. The Local Authority opposed the appeal on the basis that MW was no longer a "child" as defined under Part IV of the Education Act 1996 and that education was available for her at a College of Further Education. They made an application pursuant to Rule 8 (3) of the First Tier Tribunal Rules 2008 to strike out the appeal on the basis that the Tribunal did not have jurisdiction in relation to the proceedings.
  11. On 8th September 2009 a hearing was held before the First Tier Tribunal to determine that issue. The First Tier Tribunal struck out the claim and determined that, whilst there may be a discretion to permit a pupil to remain in school beyond their 19th birthday:
  12. "MW is no longer a child, as defined by s312(5) of the Education Act 1996. Thus this is not a case in which this Tribunal has jurisdiction. The Appeal should be struck out".
  13. The First Tier Tribunal granted MW's father permission to the Upper Tribunal on the basis that MW may still qualify for a Statement if she was following a particular course of education pursuant to section 2 (5) of the Act.
  14. The appeal was heard by Judge Jacobs at the Upper Tribunal on 5th March 2010. He determined that the First Tier Tribunal had had jurisdiction to hear the appeal under Paragraph 11(2)(b) of Schedule 27 of the Act. Moreover, he specifically found that MW fell within the definition of a "child" under Part IV of the Education Act 1996. In particular he stated:
  15. "31. A literal reading of the legislation might suggest that someone aged 19 was no longer entitled to a Statement. That was my initial reaction on studying the papers for this appeal. The duties in respect of a statement are in respect of a child for whom the local education authority is responsible. The definition of child under s312(5) is inclusive, not exhaustive. That means that "child" bears the meaning that it would otherwise bear plus the extended meaning under the definition [emphasis added]. In the Education Act, that means that "child" has the meaning in section 579 extended by section 312(5). Putting them together produces this result: a child is someone "who is not over compulsory school age" or "who has not attained the age of 19 and is a registered pupil at a school." A person who is aged 19 or more does not satisfy either element of that definition. Accordingly, the local education authority was no longer under a duty to maintain that statement. Paragraph 9(2) of Schedule 27 applied with the result that paragraph 9(1) relieved the local education authority of the duties under paragraph 11. Having reached the age of 19, Maria's Statement lapsed.
    32. Having studied the authorities and considered the arguments at the oral hearing, the essential steps in that reasoning are wrong".
  16. Judge Jacobs concluded it was too rudimentary to use age as the definition simpliciter. He accepted the argument put forward on behalf of the parents that MW remained within the definition of "child" because, although she was over the age of 19 years, she was a registered pupil at a secondary school and pursuant of Section 2 (5) of the Act as read in conjunction with section 5, she was entitled to remain in her school until she had completed her course which, I note, in MW's case lead to no particular qualification and had no specific end date. He stated:
  17. "36. ……. The issue that arises is: was it no longer necessary to maintain her statement? I accept Mr Wolfe's (for the Parents) submissions that it is too simple to give the answer no because she has now attained 19. The issue is whether the statement is still necessary despite her age. Her age is relevant but not decisive. The reason is that stages of education are not fixed by rigid cut off dates. Children do not have to move from primary to secondary education as soon as, and only when, they attain a particular age. Secondary education is defined by section 2(2)(a) (ii) to include education suitable for children "who have attained the age of 10 years and six month and whom it is expedient to educate together with senior pupils". Nor does secondary education necessarily end at a particular age. Mr Wolfe also referred me to Section 2(5):
    "(5) For the purposes of this Act education provided for persons who have attained the age of 19 is further education but not secondary education: but where a person –
    (a) has begun a particular course of secondary education before attaining the age of 18, and
    (b) continues to attend that course,
    The education does not cease to be secondary education by reason of his having attained the age of 19"
  18. The Judge reasoned from this that, because every pupil is entitled to remain in secondary school until they have finished the particular course on which they were embarked prior to reaching 19 years, it followed that MW (as she on a course) was entitled to complete it even though she was 19 years. Therefore, he concluded she remained (and needed to remain) subject a Statement and, as such, she should still be regarded as a "child" within an expansive definition of the same. He did not find it necessary to define the meaning of course under Section 2(5).
  19. In summary Judge Jacobs held that:

    a) a literal reading of the provisions might suggest that someone over 19 years was no longer entitled to a statement (indeed that had been his initial reaction to the case);

    b) having studied the authorities and arguments, he considered the essential steps in that reasoning were wrong. As such, provided a statement of SEN had commenced before the child was 19 it did not automatically lapse at 19 years.

    c) the duty to maintain a statement was "not tied to the person remaining a child for which the LEA is responsible" pursuant to the strict definition within Part IV of the Act, and a cut off at 19 years was undermined by the fact in this case that, in reality, provision had been maintained not only to the end of the school year following the age 19 years but beyond.

  20. In the light of his ruling Judge Jacobs allowed the appeal, quashed the First Tier Tribunal's decision and remitted the case back to that Tribunal to be heard on the merits based upon the circumstances as at the date of the hearing and on the evidence then available.
  21. On the 18th June – 16th July 2010 the First Tier Tribunal heard oral evidence and received detailed submissions. They held, inter alia,
  22. "8. In the light of the decision in R(B) v Islington (see below), it seems clear to us that MW's Statement has lapsed and that we no longer have jurisdiction to adjudicate on this appeal. We were clear, even before the Islington decision that the UT decision in this case did no more than raise the possibility that, in certain circumstances, a statement might extend beyond a person's 19th birthday for a limited period and that the first Tribunal should not have dismissed the appeal for want of jurisdiction , but it should have heard the evidence and determined both the jurisdictional and, if necessary factual merits at that stage. The UT decision could not have been, when analysed properly, a precedent for arguing that statements automatically extend beyond the age of 19 until a LA gives notice of ceasing to maintain.
    9. For the sake of completeness, it is right to record that on adjudicating on the factual merits of this case – which we interpret from the UT decision to mean the factual matrix in respect of both the legal issues in as well as the general merits of the appeal – would, in any event, have led us to dismiss the appeal (a) for being outside our jurisdiction given that, at the time of the hearing Maria was aged 20 (and she turned twenty one prior to the close of submissions) and no proper interpretation of the Education Act 1996 could conceivably extend the definition of "child" in Part IV to a person who has attained the age of twenty: and (b) on the factual merits as, in reality, Maria was not actually attending the school but the school was acting as a broker in arranging a package of educational facilities, which, interestingly, included a day per week at the college, proposed by the LA and opposed by her parents."
  23. The First Tier Tribunal (who handed down their decision in September 2010) was persuaded that Judge Jacobs' reasoning was incorrect in the light of the decision R (B) v Islington 2010 EWHC 2539 (Admin) ("Islington"). This was a decision of Cranston J handed down on the 20th August 2010 in which the Judge effectively held that Statements of SEN lapse automatically when a person ceases to be a child which is at 19 years.
  24. Pending the outcome of this appeal, the orders made in the First Tier Tribunal were stayed and MW continued at C College in the sense that, as I understand it, they continued to broker various placements for her.
  25. The Statutory Scheme

  26. The Education Act 1996 provides a comprehensive code for the education of children in England and Wales. It specifies the duties of LAs and defines the 3 stages of education (primary, secondary and further education) which are to be made available to children and young persons, some of which is compulsory.
  27. General Provisions of the Act so far relevant to this case are:
  28. i) Section 2(2) sets out the definition of secondary education

    ""In this Act "secondary education" means-
    (a) full time education suitable to the requirements of pupils of compulsory school age who are either –
    a) senior pupils, or
    b) junior pupils who have attained the age of 10 years and six months and whom it is expedient to educate together with senior pupils of compulsory school age; and
    (b) (subject to subsection (5)) full time education suitable to the requirements of pupils who are over compulsory school age but under the age 19 which is provided at a school at whish education within paragraph (a) is also provided."

    ii) Section 3 defines a pupil as being:

    "(1) In this Act "pupil" means a person for whom education is being provided at a school, other than-
    i. A person who has attained the age of 19 for whom further education is being provided…..
    "(2) In this Act –
    "junior pupil" means a child who has not attained the age of 12; and
    "senior pupil" means a person who has attained the age of 12 but not the age of 19 [emphasis added]."

    iii) Section 2(5) of the Act (set out in full above) contains the provision which extends the meaning of secondary education to enable those who were senior pupils and who have attained 19 years or are over 19 years to finish/complete the course upon which they were embarked prior to reaching that age.

    iv) Section 15ZA provides that LEA must provide education for all children in their area who are over compulsory school age but under 19 and, in particular:

    "(1) A local authority in England must secure that enough suitable education and training to meet the reasonable needs of-
    (a) persons in their area who are over compulsory school age but under 19
    (b) persons in their area who are aged 19 or over but under 25 and are subject to learning difficulty assessment."

    v) Section 579 which details matters of "General Interpretation" defines "child" as follows:

    "In this Act, unless the context otherwise requires:
    "child means a person who is not over compulsory school age"

    Special Educational Needs

  29. Part IV (together with Schedule 27) of the Act deals specifically with Special Needs Education. As already specified there is also a Code of Practice issued by the Secretary of State under section 313.
  30. Section 321(1) imposes a duty on the LEA such that-
    "A local authority shall exercise their powers with a view to securing that, of the children for whom they are responsible, they identify those to whom subsection (2) below applies."
    Section 321(2) provides:
    "This subsection applies to a child if-
    ii. he has special educational needs, and
    iii. it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for."
    Section 321(3) provides:
    "(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 educational 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 312 (5) contains an extension to the definition of 'child' for the purposes of Part IV:
    "(5) In this part
    'child' includes any person who has not attained the age of 19 and is a registered pupil at a school;…"
  31. Part IV sets out the precise steps which the LEA must take in relation to children with special needs. The process of deciding whether a child needs a Statement of SEN begins with a section 323 assessment.
  32. Depending on the outcome, the LEA may then be under a duty to make and maintain a statement. Section 324 sets out this provision:
  33. "(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 parents 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 [emphasis added] a statement of his special educational needs."
  34. The statement must contain the particular child's 'special educational needs' and, in order to ensure that a statement is up-to-date, there are regular reviews (section 328) and any amendments must comply with Schedule 27.
  35. The termination of a statement is governed by paragraphs 9 and 11 of Schedule 27. Paragraph 9 provides:
  36. "(1) A local education authority may not…cease to maintain, a statement except in accordance with paragraph …11."
  37. Paragraph 11 provides:
  38. "(1) A local education authority may cease to maintain a statement only if it is no longer necessary to maintain it".
    (2) Where the local education authority determine to cease to maintain a statement –
    (a) …..
    (b) the parent of a child may appeal to the Tribunal against the determination."
  39. This ensures that parents have access to an independent appeals' procedure which is operated through HMCTS and commences with the First Tier Tribunal. The Tribunal may dismiss the appeal or order the local authority to continue to maintain the Statement in its existing form or with such amendments as may be required.
  40. An exception from the duty to comply with paragraph 11 is set out in Paragraph 9 (2) …insofar as relevant it states-
  41. "(2) Subparagraph (1) does not apply where the local authority –
    (a) cease to maintain a statement for a child who has ceased to be a child for whom they are responsible. [emphasis added]"
  42. Thus, the Act envisages that there will be circumstances in which a statement of SEN will cease to be operative without the local authority having made a positive decision to cease to maintain it. In these circumstances the failure to maintain the statement would be not be subject to appeal to the First Tier Tribunal.
  43. The Parties' cases

  44. The Local Authority's submission is to the effect that the definition of a "child" in Part IV is clear and should be construed in accordance with ordinary language. As such, Section 312(5) requires not only that the child should be a registered pupil but should be a person who has "not attained the age of 19". Miss Scolding (for the Appellant) submits that the words apply specifically to Part IV and are wholly clear. She accepts that there is a measure of discretion given to Local Authorities pursuant to the statutory Guidance which assists and deals with the practical difficulties which may arise if the young person becomes 19 years during the course of an academic year. She points to the fact that the Guidance is in line with (albeit not precisely the same as) the provisions in Section 2(5). Finally, she prays in aid the case of Islington (supra) which she submits provides the proper interpretation of the Statute.
  45. It is the contention of Mr Wolfe, on behalf of the respondent, that:
  46. i. Judge Jacobs was correct in his analysis with the result that there can be no sudden and/or arbitrary jurisdictional cut off a Statement of SEN, per Paragraph 9(2) of Schedule 27, in circumstances where a pupil (like MW) has commenced a course under the age of 19 years and is continuing to undertake those course studies.
    ii. Accordingly, a statement of SEN has to subsist until a positive decision has been made by the local authority to cease to maintain it with the focus being on the particular educational needs of the person in question. The Local Authority's decision is then susceptible to appeal if the parents disagree with it.
    iii. In support of his submissions Mr Wolfe relies upon the Court of Appeal decision in Hill v Bedfordshire 2008 EWCA (Civ) 661 ("Hill"). He submits in that case the Court rejected the notion that statements lapse automatically with the consequence that a determination is always required. He points to the passage of Lord Justice Lawrence Collins (as he then was) in paragraph 109 (see below) where his Lordship stated that the Statute does not use the language of "lapse" and concluded that a LA should determine whether or not "to cease to maintain a statement". He noted that His Lordship accepted that in certain cases a local authority was not bound to give notice of its determination if paragraph 9(2) applies. But, that apart, the Court found that there was no need to give paragraph 9(2) a literal interpretation with the result that paragraph 11 could apply in a case where a child of 18 years had ceased to be a registered pupil at a school where there was every reason to suppose the child may need, and ought to be given, special educational provision.
    iv. In the light of this, Mr Wolfe submitted that provided that the statement of SEN had been issued whilst this child was under 19 years, it had to be maintained until it was not needed. Consequently, in MW's case the Statement of SEN should have been maintained beyond 19 years and the Local Authority were obliged to make a positive (and appealable) decision to bring her Statement of SEN to an end. Furthermore, because MW had been in secondary education prior to reaching 19 years and was undergoing a course of education, she was protected by Section 2 (5) and would remain a "registered pupil" until her course had been completed.
    v. His final submission was to effect that it matters not that she is over 19 years as she remains a "child" because the effect of Section 2(5) is to trump the definitions in Sections 312(5) and 579 given that those requirements are merely inclusive and not exhaustive. Accordingly, Mr Wolfe asserts that MW will continue to remain a "child" until she completes her course whenever that might be. In logic, he accepts that a person with special educational needs may require an extended period to complete a course but Mr Wolfe submits this prospect poses little real difficulty because it is a question of fact upon which the First Tier Tribunal can adjudicate if there is a dispute.

    Case Law and Critique

  47. There have been a number of authorities which deal with the Act and the interplay between paragraphs 9 and 11 of Schedule 27, although none has dealt specifically with the effect of age when a young person is over the age of 19 years. To my mind the two cases which demand detailed consideration are Hill and Islington.
  48. Hill

  49. This was a decision concerning a child who had been educated in a secondary school in Scotland until shortly before his 18th birthday. At that stage the school suddenly went into liquidation with the result that he was left without a placement. He still wished to have the benefit of special educational provision by way of a Statement. The local authority contended his Statement had lapsed automatically because he was no longer a "registered pupil" and was, therefore, not their "responsibility". Moreover, the local authority refused to fund a place (for one year until he attained 19 years) at the "school" which his parents had chosen claiming that it was a college of Further Education.
  50. The appeal concerned how a local authority should respond to the "unusual" situation where someone, who is over compulsory school age but under 19 years, had ceased to be a registered pupil (through no fault of his own) with the result that, technically, he did not fall within the extension to the definition of "child" within Section 579.
  51. The Court determined that the literal reading of section 321(3) would have had the effect that the Local Authority were no longer "responsible" for him because he was no longer a "registered pupil" which, in turn, would have meant that he ceased to be a "child" under the two part requirement set out in Section 312(5). Lord Justice Lawrence Collins determined that this would lead to anomalous results particularly because it had been conceded, that being under 19 years, the pupil could have been immediately enrolled in another secondary school, thereby fulfilling both the requirements under the extended criteria in Part IV.
  52. At paragraphs 107 and 108 Lawrence Collins LJ stated

    "(107) I agree with Irwin J in Wolverhampton that the definition of "child" in section 312(5) is not exhaustive. Consequently, it is not necessary for a person to be a "registered pupil at a school" to be a "child" for the purposes of Part IV of the Act.
    (108) In my Judgment paragraph 9(2) of Schedule 27 is intended to apply to the normal case where a statement ceases to have any point, because the child has left school and there is no possibility to the local authority providing special educational needs up to the age of 18 or 19. ……"

    His Lordship continued in paragraph 109:

    "Paragraphs 9 and 11 do not use the language of "lapse". They assume that in all cases the local authority will determine whether or not "to cease to maintain a statement". In certain cases it is not bound to give notice of its determination. There is no need to give paragraph 9(2) such a literal interpretation that paragraph 11 cannot apply to a case where a child of 16 has ceased to be registered at a school but there is every reason for a continuing belief that the child may need, and be given, special education provision later." [emphasis added].
  53. It is implicit within the rationale of that decision that the "child" came within the first limb in section 312(5) namely he was under the age of 19 years. Indeed it was axiomatic in that case that the child fell within that part and therefore the local authority were still obliged to provide him with secondary education if he wanted it. Additionally, as I have pointed out there was nothing to prevent him registering at another secondary school thereby fulfilling all the requirements of Section 312(5). To my mind, this feature demonstrates the crucial distinction between Hill and this case.
  54. It is obvious that MW cannot take any action to remedy the fact that she is no longer under 19 years because she has grown older due to the effluxion of time. It matters not that she functions at an age which is considerably lower than her chronological age. If Parliament had thought that this was relevant consideration it could have provided for such a situation in the Statute.
  55. In my view Section 312(5) does not contain a definition of "child" per se, rather it provides extended criteria for the purposes of Part IV. As such it extends the definition of "child" (for Part IV only) to include those who are over 16 years and who have not yet reached 19 years. To that extent the "definition" (if it be such) as it was referred to in Hill is exhaustive for nothing can be done to extend it. However, the second criterion, namely being a "registered pupil", is not an exhaustive qualification.
  56. I am clear that, although MW may require continuing education, the obligation to provide it must be seen in the context of the local authority having a continuing "responsibility" for her not merely as a "registered pupil" but as a "child" in accordance with the extended criteria in Section 312(5) including that part which requires her to be under 19 years. It is not right to seek to submit (as Mr Wolfe did) that one part of those criteria can simply be ignored because MW is still undertaking the course which she commenced prior to reaching the specified cut off age. It is clear that Part IV is a distinct and separate part of the Act. Parliament deliberately provided a very specific "definition" within that Part for a child with special needs. The effect of that is to override the wording in Section 2(5) of the Act and this has been specifically acknowledged in the statutory Guidance to which I have referred in detail above. In the absence of absurdity or anomaly it must be taken that this is what Parliament intended. I am clear that there is nothing irrational in drawing a distinction between children with special needs and others. Indeed to do so makes a great deal of sense because Parliament has placed more onerous requirements on Local Authorities in respect of the former group of children.
  57. Islington

  58. This considered the lawfulness (and the rights of appeal that flowed therefrom) of a local authority's decision not to maintain the "child's" Statement of SEN beyond the end of the school year in which he turned 19 years. Cranston J construed the definition of child in line with the ordinary use of language.
  59. He stated:

    "In my view these conclusions follow from the application of well established principles of statutory construction. The duty to make and maintain statements of special educational needs in Part IV of the 1996 Act, as laid down specifically in section324(1), is in relation to a "child". A "child" in this part of the Act includes any person who has not attained the age of 19 and is a registered pupil at a school. That definition is not exclusive, but in my view it cannot be stretched, as the claimant contends, to include a 23 or 30-year old. The identification of a specific age limit, namely 19, cannot mean that the definition of child refers both to those under the age of 19 and to those over that age. Part IV of the 1996 Act does not mean that whatever the age of a potential student the local education authority must consider whether it is necessary to maintain the statement and that there is no upper age limit for a "child" for whom statements have to be provided.
    Primarily, my conclusion follows because any other interpretations would be contrary to the ordinary or every day meaning of the term "child". The law reports are littered with examples of judges coaxing from words and phrases a meaning which is not the ordinary meaning. But that is where the ordinary meaning would result in an inconvenience, injustice or absurdity as a result of its application. Despite the plethora of authorities where the ordinary meaning has not been adopted, to give words an interpretation which is not their ordinary meaning is still an exceptional, not a regular, judicial practice. For a court to adopt that course must be considered with what is found to be the Parliamentary intention. A court must be able to divine a Parliamentary intention that a word is not to have its ordinary meaning.
    Here the ordinary meaning of "child" would not extend to someone who is 23 or 30 years old. Miss Butler-Cole invokes section 2(5) of the 1996 Act in support of her favoured construction. That section relates to types of education. Whatever meaning is given to the notion of "continues to attend that course" in that section, I cannot see how it can lead to a construction under which a person aged 23 or 30, or indeed of no upper age limit, would be regarded as a "child". Section 2(5) cannot have the effect of allowing a person to continue in secondary education beyond the age of 19 and of obliging a local education authority to maintain a statement of special educational needs beyond that age."
  60. I agree with his Lordship's trenchant conclusion. To attempt to construe the legislation in any other way would lead to absurdity. For the Local Authority to be required to "maintain" MW's statement of SEN now that she is over 19 years would not fit within the scheme set out in Part IV which contains a very specific (albeit not exhaustive) definition of "child". To seek to override that by the application of other sections within the Act would fly in the face of what Parliament specified and clearly intended.
  61. There is nothing unclear in the words "who has not attained the age of 19" and, for my part, I am wholly un-persuaded that the ordinary meaning can or, indeed, should be finessed away. The educational courses which special needs students undertake are often ill defined in terms of length and I consider that Parliament must have intended to mark the distinction between special needs students and others to avoid courses continuing, potentially, for many years.
  62. Part IV is a distinct and distinctive code for just that reason. It is no answer to the point that a Tribunal could determine the issue of the length of course as a question of fact.
  63. Parliament placed a specific upper age limit when it extended the definition of "child" after which a local authority ceases to be responsible to maintain a statement under Section 324. Paragraph 9(2) provides that LEAs "cease to maintain a statement for a child who has ceased to be a child for whom they are responsible" [emphasis added]. The legislation did not envisage an indeterminate lengthening of secondary education for this group. Indeed there is specific provision for what is to happen when such a child ceases to be under 19 years and moves from secondary education to Further Education. The Guidance provides a discretionary upper limit which extends the possible provision to the end of the academic year but this does not affect the construction of the Statute. It merely provides a humane discretion to enable a pupil to complete that year.
  64. In the light of this, I have come to the firm conclusion that Section 312(5) is absolutely clear and should be interpreted in accordance with common usage. Most people would consider it absurd to refer to a young adult of 20 years or more as a "child". To do so would be an impermissible corruption of language that is wholly unnecessary. It follows that the Local Authority were not bound to maintain the Statement of SEN in respect of MW because they had ceased to be responsible for her. This case fell squarely within Paragraph 9(2) of Schedule 27 and, as such, the Local Authority were not required to make a formal decision which was reviewable. For all these reasons I would allow the appeal.
  65. Lord Justice Moses:

  66. I agree.
  67. Lord Justice Maurice Kay:

  68. I also agree.


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