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.

Start your day with The Independent, sign up for daily news emails
  • Get to the point
Latest stories from i100
Have you tried new the Independent Digital Edition apps?
Independent Dating
and  

By clicking 'Search' you
are agreeing to our
Terms of Use.

iJobs Job Widget
iJobs People

Ashdown Group: HR Manager Shared Services - Uxbridge, - 1 Year contract

£50000 per annum: Ashdown Group: HR Manager Shared Services - Uxbridge, Stock...

Recruitment Genius: Graduate Human Resource Officer and Executive Assistant

Negotiable: Recruitment Genius: This is an exciting opportunity to join one of...

Ashdown Group: HR Assistant (Events business) - Central Manchester - £20K

£18000 - £20000 per annum + Benefits: Ashdown Group: HR Assistant (Events busi...

Recruitment Genius: Project Engineer

Negotiable: Recruitment Genius: This privately-owned company designs and manuf...

Day In a Page

Not even the 'putrid throat' could stop the Ross Poldark swoon-fest'

Not even the 'putrid throat' could stop the Ross Poldark swoon-fest'

How a costume drama became a Sunday night staple
Miliband promises no stamp duty for first-time buyers as he pushes Tories on housing

Miliband promises no stamp duty for first-time buyers

Labour leader pushes Tories on housing
Aviation history is littered with grand failures - from the the Bristol Brabazon to Concorde - but what went wrong with the SuperJumbo?

Aviation history is littered with grand failures

But what went wrong with the SuperJumbo?
Fear of Putin, Islamists and immigration is giving rise to a new generation of Soviet-style 'iron curtains' right across Europe

Fortress Europe?

Fear of Putin, Islamists and immigration is giving rise to a new generation of 'iron curtains'
Never mind what you're wearing, it's what you're reclining on

Never mind what you're wearing

It's what you're reclining on that matters
General Election 2015: Chuka Umunna on the benefits of immigration, humility – and his leader Ed Miliband

Chuka Umunna: A virus of racism runs through Ukip

The shadow business secretary on the benefits of immigration, humility – and his leader Ed Miliband
Yemen crisis: This exotic war will soon become Europe's problem

Yemen's exotic war will soon affect Europe

Terrorism and boatloads of desperate migrants will be the outcome of the Saudi air campaign, says Patrick Cockburn
Marginal Streets project aims to document voters in the run-up to the General Election

Marginal Streets project documents voters

Independent photographers Joseph Fox and Orlando Gili are uploading two portraits of constituents to their website for each day of the campaign
Game of Thrones: Visit the real-life kingdom of Westeros to see where violent history ends and telly tourism begins

The real-life kingdom of Westeros

Is there something a little uncomfortable about Game of Thrones shooting in Northern Ireland?
How to survive a social-media mauling, by the tough women of Twitter

How to survive a Twitter mauling

Mary Beard, Caroline Criado-Perez, Louise Mensch, Bunny La Roche and Courtney Barrasford reveal how to trounce the trolls
Gallipoli centenary: At dawn, the young remember the young who perished in one of the First World War's bloodiest battles

At dawn, the young remember the young

A century ago, soldiers of the Empire – many no more than boys – spilt on to Gallipoli’s beaches. On this 100th Anzac Day, there are personal, poetic tributes to their sacrifice
Dissent is slowly building against the billions spent on presidential campaigns – even among politicians themselves

Follow the money as never before

Dissent is slowly building against the billions spent on presidential campaigns – even among politicians themselves, reports Rupert Cornwell
Samuel West interview: The actor and director on austerity, unionisation, and not mentioning his famous parents

Samuel West interview

The actor and director on austerity, unionisation, and not mentioning his famous parents
General Election 2015: Imagine if the leading political parties were fashion labels

Imagine if the leading political parties were fashion labels

Fashion editor, Alexander Fury, on what the leaders' appearances tell us about them
Phumzile Mlambo-Ngcuka: Home can be the unsafest place for women

Phumzile Mlambo-Ngcuka: Home can be the unsafest place for women

The architect of the HeForShe movement and head of UN Women on the world's failure to combat domestic violence