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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> B, R (on the application of) v London Borough of Islington [2010] EWHC 2539 (Admin) (20 August 2010) URL: https://www.bailii.org/ew/cases/EWHC/Admin/2010/2539.html Cite as: [2011] PTSR 716, [2010] EWHC 2539 (Admin), [2010] ELR 794 |
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2A 2LL |
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B e f o r e :
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THE QUEEN ON THE APPLICATION OF B | Claimant | |
v | ||
THE LONDON BOROUGH OF ISLINGTON | Defendant |
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MS L SEYMOUR (instructed by LONDON BOROUGH OF ISLINGTON) appeared on behalf of the Defendant
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Crown Copyright ©
MR JUSTICE CRANSTON:
Introduction
Background
Statutory framework
"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 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."
"(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."
"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
"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 [2000] 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."
"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)."
"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 [1985] 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
Discussion
Addendum
Conclusion