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||Neutral Citation Number:  EWHC 2539 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
||Royal Courts of Justice
London WC2A 2LL
||20th August 2010
B e f o r e :
MR JUSTICE CRANSTON
||THE QUEEN ON THE APPLICATION OF B
||THE LONDON BOROUGH OF ISLINGTON
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MS V BUTLER-COLE (instructed by LEIGH DAY) appeared on behalf of the Claimant
MS L SEYMOUR (instructed by LONDON BOROUGH OF ISLINGTON) appeared on behalf of the Defendant
HTML VERSION OF JUDGMENT
Crown Copyright ©
MR JUSTICE CRANSTON:
- The claimant in this application for judicial review challenges the decision of the London Borough of Islington ("the council") that it will not maintain a statement of special educational needs beyond the end of the school year in which a young person turns 19, and that therefore this claimant's statement lapsed in July 2010. His case is supported by a decision of the Upper Tribunal, AW v Essex County Council  UKUT 74, and it is on that basis that Wyn Williams J granted permission. The council submits that there is no obligation to continue to provide a statement for the claimant since he is 19 years old. Moreover, where a claimant such as this has reached that age there is no obligation that it should make a determination that the statement should cease, because it does so as a matter of course.
- The claimant turned 19 years old on 4 January 2010. He has so far spent 3 years undertaking various different courses at the La Swap Sixth Form located at the Acland Burghley School, a comprehensive school in North London. He wishes to stay on at Acland Burghley School to undertake some new A level courses. He is a dystonic quadraplegic with cerebral palsy. That effects his physical and communication skills. Despite those impairments, he has achieved above age-expected levels in some national curriculum subjects. Independent psychological assessments describe him as being a boy who absorbs knowledge rapidly and can make imaginative leaps. His intellectual ability falls well within the above average range. His complex educational needs arise from the contrast between his above average intellectual ability and his marked physical difficulties. He uses a range of communication methods, including definite yes and no head movements, verbalising, independent hand and eye pointing, "switch use", typing with facilitated communication training and a range of technological aids.
- The special educational needs statement, amended on 20 July 2004, set out as one of the main objectives that he should follow a carefully planned educational programme, including the national curriculum. The statement detailed the need for him to have the provision of 55 hours worth of learning support assistance per week on an individual basis provided by two learning support assistants. It also set out that the learning support assistants should attend training sessions given by a physiotherapist/occupational therapist. Under that statement he was to be provided with 14 hours per week specialist teacher support from a teacher trained in facilitated communication training and the use of augmentative and alternative training aids and techniques.
- In a letter from his mother dated 1 March 2010 it is explained that the claimant's health has not been good since January 2009 when he began to suffer from bouts of extreme stress and anxiety. The claimant's mother also describes how the provision of the "eye gaze" system was not made until the end of November 2009, so it was not available for proper use until early this year. The claimant's mother further explains that it had been agreed that the claimant should continue his studies at La Swap, because it would be impractical to meet his educational needs elsewhere. The basis for that reasoning is that that school has developed considerable expertise in meeting his needs, both educational and care, and that has led to good examination results. It is at that school that the specialist teaching is available, as well as the necessary physical alterations and the availability of a quiet study room.
- A note of a meeting of experts, along with the claimant's mother, dated 22 April 2010 registers the claimant's view that he would like to stay on at Acland Burghley School. The note also records that it was not unusual, in the view of one of the experts, for a student with special needs to take up to 4 years to complete their A levels. There is reference in this note to the claimant moving on to adult services.
- A "moving on assessment", dated 8 July 2010, clarifies the position that the claimant might take up to two more years to complete A levels. It records that there is no other suitable provision identified locally and that it is not practicable for the claimant to switch placements in the middle of his studies, both because of the logistics of managing a new timetable and because it is essential that the staff have appropriate training, essential to his needs.
- The relevant statutory provisions relating to statements of special educational needs are contained largely in part IV and schedule 27 of the Education Act 1996 ("the 1996 Act"). Three aspects of that Act, other than those in that part and schedule, featured in the present judicial review. Two of these are contained in the introductory part of the Act. Section 2(5) provides that for the purposes of the Act education provided for persons who have attained the age of 19 is further education, not secondary education, but where a person has begun a particular course of secondary education before attaining the age of 18, and "continues to attend that course", the education does not cease to be secondary education by reason of that person having attained the age of 19. Section 14 of the Act is entitled "Functions in respect of provision of primary and secondary schools" and obliges a local authority, in sub-section 1, to secure that sufficient schools for providing primary and secondary education are available for their area. The third provision is in part X of the Act, "Miscellaneous and general". That, defines a child in section 579 as follows:
"579 General interpretation.
(1) In this Act, unless the context otherwise requires—
..."child" means a person who is not over compulsory school age..."
Part IV of the 1996 Act is entitled "Special educational needs" and begins with a definition section, section 312. That section contains the definition of special educational needs: a child has special educational needs for the purposes of the Act if he has a learning difficulty which calls for special educational provision to be made for him. There are also definitions of "learning difficulty" and "special educational provision". Section 312(5) then contains the definition of child:
"(5) In this Part-
"child" includes any person who has not attained the age of 19 and is a registered pupil at a school."
- The marginal note to section 313 is "Code of practice". It requires the Secretary of State to issue and revise a code of practice "giving practical guidance" in respect of the discharge by local authorities of their functions under part IV of the Act. Sub-section 2 obliges local authorities to have regard to the provisions of the code. Paragraph 9.61 of the code has a bearing on this judicial review and reads as follows:
"The school remains responsible for convening annual review meetings until such time as the pupil leaves school. Some pupils with statements of special educational needs will remain in school after the age of 16. LEAs 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 will take a pupil with a statement beyond their 19th birthday. The Learning Skills Council, when it becomes responsible for the funding of sixth form provision, will, as a condition of funding, require LEAs in those situations to maintain statements until the end of the academic year in which their 19th birthday falls."
- Section 321 of the 1996 Act imposes a general duty on local education authorities towards children for whom they are "responsible". Under sub-section 1 a local education authority must exercise their powers with a view to identifying those to whom sub-section 2 applies. Sub-section 2 applies to a "child" if he has special educational needs and it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for. Sub-section 3 then sets out for the purposes of Part IV the children for whom a local education authority are regarded as being "responsible":
"(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 or the funding 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."
The procedure for the assessment of educational needs of a child is set out in Section 323 of the 1996 Act. That leads to the duty under section 324(1), to make and maintain statements if there are special educational needs. It provides as follows:
"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."
- Section 326(7) gives effect to schedule 27 in relation to the making and maintenance of statements under that section. Schedule 27 of the Act contains within paragraphs 9 and 11 the procedure for ceasing to maintain a statement:
"9 (1) A local authority may not cease to maintain, a statement except in accordance with paragraph 11.
(2) Sub-paragraph (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...
11 (1) A local authority may cease to maintain a statement only if it is no longer necessary to maintain it.
(2) Where the local authority determine to cease to maintain a statement—
(a) they shall give notice in writing of that fact to the parent of the child, and
(b) the parent of the child may appeal to the Tribunal against the determination.
(2A) A notice under sub-paragraph (2)(a) must inform the parent of the right of appeal under sub-paragraph (2)(b) and contain such other information as may be prescribed."
The case law
- Three authorities were at the centre of the submissions in this judicial review. The first was Wolverhampton City Council v Special Educational Needs & Disability Tribunal & Smith  EWHC 1117 (Admin);  ELR 418. In that case the child was born in November 1988. His mother withdrew him from school in May 2004, in other words shortly before his 16th birthday. The local authority and other agencies met and agreed that his needs would best be met by an organisation called notschool.net, with a view to his attending a further education college in September 2005. However, he decided that he no longer wished to attend the college and continued to be educated through notschool.net. In July 2006 the local authority wrote to his mother to explain that his statement had lapsed at the end of June 2005, when he ceased to be of compulsory school age, was not a registered pupil at a school and was intending to attend college in September 2005. The issue was whether the tribunal had jurisdiction to hear the mother's appeal. It was held that it did. The decision of Irwin J is authoritatively summarised at paragraph 105 of the Court of Appeal decision in R(Hill) v Bedfordshire County Council  EWCA Civ 661;  LR 660:
"105. Irwin J held that (a) A was a "child" within the meaning of Part IV of the 1996 Act; (b) the local education authority was not "responsible" for A under the definition in section 321(3) of the Act; (c) but on the facts of the case, where the local education authority had continued to maintain a statement in relation to A for a year after he reached compulsory school age, a letter saying that the statement had "lapsed" was in fact a decision to cease to maintain the statement; (d) a right of appeal existed under schedule 27, paragraph 11(2), in relation to a decision to cease to maintain a statement for a child, even if the LEA is no longer "responsible" for that child; (e) under paragraph 9(2) a local education authority may lawfully cease to maintain the statement where they are no longer "responsible" for a child, but where it has chosen to act as if in compliance with the duty under paragraph 11(1) to maintain a statement as long as it is necessary to do so (even they were under no obligation to do so), the SENDIST [tribunal] on appeal had the power to restore the statement."
In the course of his reasons in the Wolverhampton case Irwin J said that it was clear that the definition of child in section 312(5) was inclusive but not exhaustive. That was obvious, he said, from the reflection that any child for whom educational provision is arranged pursuant to the power under section 319, other than at school, would not be a registered pupil at a school, even if they were under compulsory school age: paragraph 17. Nor, held Irwin J, was the simple definition in section 569 sufficient. There were individuals who must, for the purposes of part IV of the Act, be treated as a "child" even though they were over compulsory school age, a point made explicit by the definition in 312(5), but also envisaged by the opening words of section 579(1): paragraph 18. Taking all the provisions in Part IV and the definition section together, Irwin J held that a child, for the purposes of the Act, must at least include any person who has not attained the age of 19 for whom the local education authority is "responsible". In the course of his reasoning Irwin J referred to an earlier decision of Turner J in S v Essex County Council & the Special Educational Needs Tribunal  ELR 718:
"I do not dissent from the analysis set out by Turner J in the case quoted above. For the reasons I have set out, complemented by those he has given, in my judgment the term "child" for this part of the Act must extend at least as far as any individual under the age of 19 in respect of whom the LEA does or might owe obligations under part IV of the Act."
- Irwin J observed that the local education authority's obligation concerning the creation and maintenance of a statement under section 324 is not tied to a requirement at the time the obligation arises, that a child should be one for whom the local education authority is "responsible," although it is a prerequisite under section 323, before the obligation to assess arises: paragraph 22. Irwin J then found as a matter of fact that there was a determination by Wolverhampton to cease to maintain the statement of special educational needs in relation to the child in that case in late June/early July 2006. The statement did not lapse. The local education authority had not been "responsible" for him for a year and no obligation to maintain the statement through to the end of June 2006, never mind beyond, could proceed from "responsibility". If the statement had lapsed once he was both no longer of compulsory school age and no longer educated at a school, it would have lapsed in 2005: paragraph 30. At paragraphs 39 to 41 Irwin J summarised his conclusions. In particular at paragraph 40 he said that both as a matter of statutory construction and for reasons of policy the right of a parent to appeal pursuant to paragraph 11(2) of schedule 27 on a determination to cease to maintain a statement persisted in circumstances such as those present where, as a matter of fact, the authority had continued to maintain a statement.
- R(Hill) v Bedfordshire County Council involved a child who attended a private school in Scotland named in his statement of special educational needs. It was intended that he should remain there until he was 19 years old, but the school went into liquidation when he was 18. His parents then enrolled him at another educational establishment. The local education authority informed him that he was no longer 18 years old and no longer registered at a school. Thus his statement of special educational needs would lapse when he attended the other educational establishment. There were two issues in the case, the first not relevant to this judicial review. As regards the second issue, the judge had held that the local education authority should have given notice of its intention to cease to maintain the statement of special educational needs and notice of the right of appeal. The judgment of the Court of Appeal was given by Lawrence Collins LJ (as he then was). May LJ and Sir Peter Gibson agreed.
- Lawrence Collins LJ set out in relation to the second issue the rival contentions of the parties. The local authority position was that it was no longer responsible for the child once he reached his 18th birthday and was no longer registered at the school, or at any rate once he attended the other educational establishment. Where a child ceased to be a child for whom the local education authority was responsible, it could cease to maintain a statement without giving notice, and there was no right of appeal. By contrast the claimant's case was that the other educational establishment was a school and that the authority had to give notice of the intention to cease the statement and of his right to appeal to the tribunal. If the local authority did not agree that the other educational establishment should be included in the statement it had to name another school and he, the claimant, could then appeal that decision.
- Lawrence Collins LJ said that he did not find the answer easy. The legislation had failed to deal explicitly with what he described as "one unusual situation", namely, the case where a person who was over the compulsory school leaving age had left school, in other words "is not a registered pupil at a school" and "over compulsory school age", under section 321(3)(d), but where a question had arisen as to whether he or she should have the benefit of special educational provision: paragraph 88. That question was a narrow one: paragraph 89. The answer was to be found in schedule 27 of the 1996 Act, and depended on the relationship between paragraphs 9 and 11: paragraph 90. Lawrence Collins LJ then addressed that issue and the meaning to be given to section 321(3). In the course of his reasoning he agreed with Irwin J in Wolverhampton that the definition of child in section 312(5) was not exhaustive. Consequently it was 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 1996 Act: paragraph 107. In his judgment paragraph 9(2) of schedule 27 was intended to apply to the normal case where the statement ceased to have any point, because the child had left school and there was no possibility of the local education authority providing for special educational needs up to the age of 18 or 19: paragraph 108. Lawrence Collins LJ then held on the facts that the decision of the local education authority in that case was indeed a decision to cease to maintain the statement:
"112. In these unusual circumstances it seems to me it that on the facts the authority determined that the statement ceased in circumstances which were not those envisaged by paragraph 9(2) and that it should have given notice in accordance with paragraph 11(2)."
- The decision which was the basis for Wyn Williams J granting permission in this case is AW v Essex County Council  UKUT 74. That was a case where the appellant was 19 in August 2008. She had Down's Syndrome and had had a statement of special educational needs since 1992. On 13 March 2009 the local education authority wrote to her parents saying that they would cease to maintain her statement on 31 August 2009 and explained that her needs could be met at a further education college. After outlining the statutory provisions and the authorities, the judge said that on a literal reading of the legislation, which coincided with his initial reaction, someone aged 19 was no longer entitled to a statement. He then analysed the authorities. None of the cases dealt precisely with the issue before him and were principally concerned with ensuring that the right of appeal under paragraph 11(2)(b) was effective. He added:
"33...I am not bound by the decisions in Essex and Wolverhampton as they were given in a coordinate jurisdiction: Chief Supplementary Benefit Officer v Leary  1 WLR 84. However they are consistent with the approach of the Court of Appeal in Bedfordshire [in other words Hill] by which I am bound and the court cited Wolverhampton with approval."
The judge continued that the duty to assess under section 321 arose only in respect of a child. That was not the case for the duty to make and maintain a statement, citing Irwin J in Wolverhampton at paragraph 22:
"34...The result is that those duties are not tied to a person remaining a child for which the local education authority is responsible. That allows for the possibility that it may be necessary to maintain a statement beyond the age of 18."
At paragraph 35 of his judgment the judge then said that paragraph 9(2) of schedule 27 was limited to cases in which it was obvious that there was no further purpose for a statement. That in his view was the effect of the reasoning of Lawrence Collins LJ at paragraph 108 of the Hill decision. In the case before him there was scope for argument about whether the appellant remained a child when she attained 19. The case was not sufficiently clear-cut to be one of those straightforward cases which came within paragraph 9(2): paragraph 35.
"36. Accordingly, the local education authority could only determine M's statement under paragraph 11(1) of schedule 27. The issue that arises is: was it no longer necessary to maintain the statement? I accept Mr Wolfe's argument 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 transfers between stages of education are not fixed by rigid cut off dates."
In that regard the judge referred, inter alia, to section 2(5) of the 1996 Act. Accordingly he held that the lower tribunal had made an error of law in deciding to strike out the proceedings. It should have heard the case and decided on the merits as to whether it was any longer necessary to maintain the statement.
The claimant's case
- In her cogent submissions on behalf of the claimant Miss Butler-Cole contended that the definition in section 312(5) of child is inclusive, and is inclusive in respect of both the elements, there being nothing on the face of the definition to limit the inclusivity solely to the issue of being a registered pupil at a school. In her submission, a "child" for the purposes of Part IV of the 1996 Act could be a 19-year old, a 23-year old or indeed a 30-year old. Consequently, as long as a person remains at a school they can maintain that they remain entitled to a statement of special educational needs. Miss Butler-Cole invoked section 2(5) of the 1996 Act, which she contended cleared a path for the inclusive definition, in that secondary education does not cease to be such simply by virtue of the fact of a child having turned 19. An interpretation of the special educational needs provisions of the Act so as to limit the responsibility on authorities for secondary education, by imposing a strict cut off at age 19, would be inconsistent with section 2(5). In her submission the council's own position was that the claimant's statement of special educational needs continued beyond 19, since he had turned 19 in January 2010 but the Council had continued it to the end of the academic year. In her submission paragraph 9.61 of the code of practice provided no support for the council's position that a statement of special educational needs lapses at the age of 19. The code cannot be used to interpret the statute. Moreover, in her submission paragraph 9.61 demonstrated an intention to ensure that there was no gap in funding where a child's secondary education had not been completed by the age of 19. The council's analysis went against that contention and resulted in a lacuna which the code of practice sought to avoid. In her submission, the Upper Tribunal in the AW decision had correctly decided the issue.
- Part IV of the 1996 Act imposes a statutory duty on a local education authority to maintain statements of special educational need until a person reaches the age of 19. That statutory duty is clear, but in my view it only requires a local education authority to maintain a statement until the person's 19th birthday. At that point a local education authority has no further obligations under Part IV of the legislation. Thus in this case there was no obligation on the council to continue to provide a statement of special educational needs for the claimant, since he had turned 19. Further, as here, the statement lapsed because the claimant reached the age of 19. There was no obligation upon the council to make a determination that the statement would cease because that followed as a matter of course.
- 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 section 324(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 interpretation 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 consistent 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 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.
- The statute book as a whole gives no support to the claimant's contentions. In R(A) v Croydon London Borough Council  UKSC 8;  1 WLR 2557;  All ER 469 the Supreme Court considered the statutory definition of "child" in the Children Act of 1989, section 105(1), where a child means a person under the age of 18. In this jurisdiction that Act is the preeminent legislative instrument dealing with children. As would be expected, the age specified for a "child" in other legislation turns on its particular purpose. Thus in the Housing Act 1996 "child" means a person under the age of 18 (s. 158(1)), but in section 55(1) of the Child Support Act 1991 "child" means a person who has not attained the age of 16, or has not attained the age of 20 and satisfies such conditions as are prescribed. (A person who is or has been party to a marriage or civil partnership is not a child for the purposes of that Act: s.55(2)). None of this supports the argument that a 23 or 30 year old could be a "child" under the 1996 Act. But the matter does not stop there. The UN Convention on the Rights of the Child, ratified by the United Kingdom some 20 years ago, states that a child means every human being below the age of 18, unless under the law applicable to the child, maturity is obtained earlier.
- For the purposes of local authority funding of the education of those with special educational needs, I cannot see that it would be inconvenient, unjust or absurd, or contrary to the Parliamentary intention, to adopt the ordinary meaning of the term "child". There is some support for this conclusion as regards the implications for local authorities in the 1996 Act itself, which makes local authorities responsible for primary and secondary education: sections 2, 5 and 14. The council submits that if the claimant is successful it would create a potentially limitless obligation on it and other local authorities to fund children of any age. Whilst Miss Butler-Cole is correct to refute that submission by contending that the effect of her approach is that where a child has turned 19 the local authority must simply consider whether to maintain the statement, not that it has to do so, and that age would be only one factor in that consideration, it nonetheless seems to me that the concern raised about the funding priorities of local authorities is not trivial.
- Miss Butler-Cole was correct in her submission that the code of practice cannot be used to determine the construction of the primary legislation under which it is constituted. Paragraph 9.61 of the code states that local authorities remain responsible for pupils with special educational needs until the age of 19. I accept that that is not determinative, but it does lend some support, in my view, to the ordinary meaning of the term "child": it is a clear and unequivocal statement of the Secretary of State's position about the meaning of the term. The code of practice then contemplates that a local authority may continue a statement until the end of any given academic year. That is an eminently sensible suggestion but casts no light on the meaning on "child".
- At one point in the claimant's argument the fact that the local authority in this case had continued the statement when he was over 19 was said to evidence an inconsistency in approach. In my view the fact it continued the statement until the end of the academic year, beyond the 19th birthday of the claimant, cannot somehow create an obligation, if that is what is suggested, which the council would not otherwise have, to maintain the statement yet further. In my view there was nothing inconsistent in the council's conduct in its decision to continue the statement. It cannot be in a worse position because it has allowed the claimant to finish the academic year in which he turned 19. The council was acting consistently with the code.
- I turn now to the authorities. Before proceeding to AW, it is important to take stock of the metes and bounds of Wolverhampton and Hill. First, as Miss Butler-Cole acknowledges, neither case addresses directly the issue which arises in this case; in both cases the claimants were under 19. Both cases sought to extend the meaning of the statutory wording in order to avoid specific anomalies. The focus in both was on someone who was no longer one for whom the local authority was responsible, since he was not registered at a school. That, on a strict application of schedule 27, meant that the right of the parent to appeal a determination to cease to maintain the statement did not arise. In both cases it was held that the appeal right could be invoked because of the specific factual context. In Wolverhampton, Irwin J concluded that the local authority had chosen to make a determination as to whether to continue the claimant's statement. In Hill, Lawrence Collins LJ described as "the anomalous results" of a local authority being responsible for a child, such responsibility being based upon the child being at school, but the school going into liquidation. On that basis the term "registered pupil at a school" was effectively construed so as to include a person who would like to be registered at a school but was unable to do so because the school had closed. It was in those special, factual contexts that "child" was given the more extensive meaning than set out in section 312(5). In my view there is no basis in either Wolverhampton or Hill for a construction of the term "who has not attained the age of 19" in the definition, section 312(5), so as to include persons over the age of 19.
- As to the decision in AW, in my respectful view it is wrong. There are unfortunate drawbacks in the judge's reasoning. In my view, paragraph 34 of that decision fails properly to apply the decision in Wolverhampton by mistaking the finding that the obligation to create and maintain a statement is not tied to a requirement that the local authority be responsible for a particular child, with a finding that it is not tied to the requirement that the person in question be a child. In paragraph 35 of the decision the judge found that the effect of Hill at paragraph 108 is that paragraph 9(2) of Schedule 27 is limited to cases in which it is obvious that there is no further purpose for a statement, and concluded that there is scope for argument about whether the claimant remained a child despite attaining 19. That is not what Lawrence Collins LJ actually decided. It is clear from paragraph 108 that the issue which Lawrence Collins LJ was addressing was the issue of a local authority's responsibility for a child, not who is a child. Crucially, however, in my view AW does not grapple with the ordinary meaning of the term "child" and why on the accepted principles of statutory construction it should be departed from in the context of applying the definition in section 312(5).
- Thus, in my view "child", in the context of the funding of special educational needs statements under the 1996 Act, means a person up to the age of 19. That accords with the ordinary meaning of the term, and neither the statutory context nor the authorities compel a different conclusion.
- In the course of the judgment of the Upper Tribunal in AW, the judge commented that he was not bound by the decisions of Essex and Wolverhampton, as they were given in a coordinate jurisdiction, but he was bound by the Court of Appeal decision in Hill. In this judgment I have refrained from following his decision. That comment, and my decision, require some explanation.
- The implications of the Upper Tribunal being a superior court of record under its constituting legislation were explored in the scholarly judgment of Laws LJ in R(Cart) v the Upper Tribunal  EWHC 3052 (Admin);  2 WLR 2012;  All ER 908. There, in a discussion of the scope for judicial review of the Upper Tribunal, Laws LJ described the Upper Tribunal as an authoritative, impartial and independent source for the interpretation and application of the relevant statutory texts: paragraph 94. For some considerable time this court has accorded the respect which Laws LJ's characterisation in Cart implies to the decisions of the Upper Tribunal's predecessor bodies, in particular those of the Asylum and Immigration Tribunal. Thus, this court has regularly followed the AIT's judgments on specific points, such as the approach to forged or fraudulent documents, as well as its country guidance cases.
- The mutuality of respect constitutionally required of judicial institutions demands that the Upper Tribunal follow decisions of this court. That is also essential to our system of precedent, which not only has strong utilitarian justifications, such as increased certainty, greater predictability and reduced cost, but also acts as a constraint on the judiciary, who lack the democratic mandate of elected officials. This court has long accepted that although strictly speaking we are not bound by the decisions of other High Court judges, judicial comity and the common law method oblige us to follow them. The exception is if we are convinced that a previous decision is wrong: see Cross and Harris, Precedent in English Law, 4th Edition 1991, 122-123.
- Those are the principles I have applied here. In my view, for the reasons I have given, I have respectfully concluded that the construction which the judge has placed on these sections of the 1996 Act in his decision in AW is wrong. It is on that basis I have refused to follow it.
- A judge in this jurisdiction cannot be unmindful of the impact on individuals of his or her decisions. The effect of my decision is that the council does not have to fund the claimant under Part IV of the Education Act 1996 to continue to attend school to complete his A levels. This amazing young man, who suffers from severe limitations as a result of cerebral palsy, has overcome his physical disabilities to such an extent that he has been able to obtain GCSEs and study for A levels. It will be of small, if any, comfort to him for me to wish him well in his further studies. In my view the law on this matter could not be clearer and I must give effect to it.
- MS SEYMOUR: My Lord, I would ask for my costs. I do not know if that is to be disputed, if it is I can make a submission, or whether it is just a question of the form of the order.
- MISS BUTLER-COLE: I don't know if I can oppose the principle of costs, but just to point out that the claimant is legally aided. Could I say the effect of your decision is that the defendant does not have to fund the claimant to continue to attend school to complete his A levels. You will be aware that there is a separate question which will now arise about the other statutory powers and duties not in the Education Act and I wonder if you could ask that you make it clear that the effect of the decision is that they do not have an obligation to fund him under the Education Act, not a general rule in conclusion.
- MR JUSTICE CRANSTON: Yes, of course I will. As you can understand I have had to do this all very hurriedly. You are absolutely right on that, I shall do that in the corrected judgment.
- MISS BUTLER-COLE: My Lord, I do ask for permission to appeal. I hear what you said about the law being absolutely clear, but in my submission we now have two contrasting judgments, the Upper Tribunal and this judgment, which come to opposite conclusions, which is not a helpful position to be in. I would ask for permission to appeal on the grounds that in this judgment the approach taken to statutory construction is wrong. My Lord, I would also ask that you take into consideration the question of timing in considering whether to grant or suggest that the claimant takes the more common route to apply directly.
- MR JUSTICE CRANSTON: Yes.
- MS SEYMOUR: My Lord, we are in a slightly difficult position: we accept that there is a point of interest, we say that there is an issue with regard to two conflicting judgments, however we do say that at the end of the day this is clear. That, as you found, my Lord, the statutory position is clear, the decision in AW is clearly wrong, and that although it is understandable why the claimant might seek permission to appeal in this case, it will in fact do nobody any good and on that basis we do oppose the application for permission.
- MR JUSTICE CRANSTON: Do you want to say anything more.
- MISS BUTLER-COLE: You have my submissions.
- MR JUSTICE CRANSTON: I think for the reasons Miss Seymour has given -- it is so clear -- I am going to refuse permission.
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