Law Report: 22 May 1998: Resources are irrelevant to `suitable education'

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Re T (A Minor); House of Lords (Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Nolan, Lord Steyn, Lord Hutton) 20 May 1998

IN DETERMINING what constitutes "suitable education" for the purposes of section 298 of the Education Act 1993, an education authority may only take account of educational considerations, and the fact that it is short of resources is irrelevant.

The House of Lords allowed the appeal against the decision of the Court of Appeal that the respondent education authority's decision, on financial grounds, to reduce the number of hours of home tuition provided to the appellant was lawful.

The appellant T was born in February 1982 and was thus a child of compulsory school age until February 1998. She had suffered since the age of seven from myalgic encephalomyelitis (ME), in consequence of which she found it very difficult and at times impossible to attend school. From May 1992 onwards her local education authority had provided five hours per week home tuition for her.

From July 1995 onwards it had been provided under section 298 of the Education Act 1993 (now re-enacted in section 19 of the Education Act 1996), which provided that:

(1) Each local education authority shall make arrangements for the provision of suitable full-time or part-time education at school or otherwise than at school for those children of compulsory school age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrange- ments are made for them . . . (7) In this section "suitable education", in relation to the child or young person, means efficient education suitable to his age, ability and aptitude and to any special educational needs he may have.

In September 1996 T's parents were told that, for financial reasons, the education authority was reducing the maximum number of hours of home tuition provided under section 298 from five hours per week to three hours per week. Their application for judicial review of that decision was allowed by Keene J on the ground, inter alia, that the education authority had taken into account an irrelevant factor, ie the shortage of resources, when deciding to reduce the number of hours of home tuition.

The Court of Appeal reversed his decision and T appealed, on the ground that the education authority's decision was unlawful because it had had regard to irrelevant circumstances.

Michael Beloff QC, Tim Kerr and Andrew Sharland (Bates Wells & Braithwaite) for T; Nigel Pleming QC and Rabinder Singh (Sharpe Pritchard, London agents for East Sussex County Council) for the education authority.

Lord Browne-Wilkinson said that the Court of Appeal had held, by a majority, that it was legitimate for the education authority to take into account its shortage of resources when deciding to reduce the number of hours of home tuition. That view had been largely based on the premise that the duty under section 298 was owed by the education authority not to each child individually, but to a class of children.

On the present appeal the education authority had not sought to maintain that view.

There was nothing in the 1993 Act to suggest that resource considerations were relevant to the question of what was "suitable education". On their face those words connoted a standard to be determined by purely educational considerations. That view was much strengthened by the definition of "suitable education" in section 298(7), which spelled out expressly the factors which were relevant to the determination of suitability, namely, the education must be "efficient" and "suitable to his age, ability and aptitude" and also suitable "to any special educational needs he may have".

All those express factors related to educational considerations and nothing else. There was nothing to indicate that the resources available were relevant. The education authority's decision to reduce the hours of home tuition provided to T for financial reasons was, accordingly, unlawful.