No appeal by child over special school decision

LAW REPORT v 28 September 1995 Simon v Special Educational Needs Tribunal and another; Queen's Bench Division (Mr Justice Latham) 25 July 1995

A child had no right of appeal to the High Court against the decision of a special educational needs tribunal; such an appeal could only be brought by a parent of the child concerned or by the local education authority.

Mr Justice Latham dismissed an appeal by Darren John Simon (aged 13, applying by his mother and next friend Kay Simon) against the decision of a Special Educational Needs Tribunal, on 2 February 1995, the effect of which was that the school named in his amended statement of special educational needs was Pimlico School, an ordinary maintained school, as proposed by Westminster City Council, the local educational authority, and not Northease Manor School, a recognised independent special school contended for by the mother.

Philip Engelman (Teacher Stern Selby) for the applicant; J.R. McManus (Treasury Solicitor) for the tribunal; Tanya Calman (Westminster City Council) for the education authority.

Mr Justice Latham said special educational needs tribunals were constituted by the Education Act 1993. An appeal from the tribunal lay to the High Court by virtue of section 181 of the 1993 Act, which added the tribunal to those in respect of which section 11(1) of the Tribunals and Enquiries Act 1992, provided:

If any party to proceedings before [the tribunal] is dissatisfied in point of law with [its] decision . . . he may, according as rules of court may provide, either appeal from the tribunal to the High Court or require the tribunal to state and sign a case for the opinion of the High Court.

By reg 7 of the Special Educational Needs Tribunal Regulations 1994, an appeal was constituted by notice of appeal signed by the parent, naming the child and the authority whose decision was disputed. Regulation 8 provided for a reply by the authority, reg 9 provided for withdrawal of the appeal by the parent. All references to representations were made in terms of representations by or on behalf of the parent or the education authority. Regulation 27 provided for persons other than the parties to attend, but did not include the child itself. The words of reg 30, dealing with the calling of witnesses, "provided that neither party should be entitled to call more than two witnesses to give evidence orally . . .", were the clearest indication as to who was to be considered a party.

In the context of the overall statutory framework, and the procedures provided for in the Regulations, there could be only two parties to such an appeal: the parents on one hand, or the local education authority on the other. The court had no jurisdiction to hear an appeal brought by a child, and in the absence of any application to substitute or join the mother as an applicant, the present motion must be dismissed.

However, all parties had agreed that his Lordship should rule on other points raised in this matter.

Should the appeal have been brought by case stated? Having regard to section 11 of the 1992 Act and Order 94, rules 8 and 9 of the Rules of the Supreme Court, it was clear that an application under Order 55 was appropriate in relation to a decision of the tribunal, but that the tribunal might of its own motion, or at the request of either party, state a case on a question of law. It followed that the present form of appeal was appropriate, as it challenged the decision.

Was the tribunal a proper party to the appeal? Order 55, rule 8, expressly provided for a minister of the Crown or government department, whose decision was appealed against, to appear and be heard. On the principle expressio unius exclusio alterius, a tribunal was therefore not entitled as of right to appear and be heard; but the court had ample power to permit the tribunal to appear in appropriate matters.

Were affidavits sworn by the tribunal chairman, by Westminster's special educational needs assessment and purchasing manager, and by the headteacher at the Pimlico school, admissible under Order 54, rule 7? In his Lordship's judgment they were, in order to answer the applicant's assertion that there was no "relevant evidence" upon which the tribunal could conclude it did.

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