Queen's Bench Division (Mr Justice Turner).
24 February 1995.
A local education authority which maintained a statement of special educational needs specifying that a fee-paying school was suitable for the child's educational needs had made arrangements for the child's education, even though the parents had placed the child in that school before the statement was made, and it was liable to pay the school fees in full.
Mr Justice Turner quashed the council's decision to cease to maintain a statement of special educational needs in respect of W, now aged 17, and directed the council to fund fully W's place at an independent fee- paying school.
W suffered from severe dyslexia and her parents moved her from a maintained school to a fee-paying school, where she had flourished. The council, as education authority, then made a statement of special educational needs which provided that W attend the fee-paying school and for the council to part fund fees until she reached 16, when the council would cease to maintain the statement.
Nicholas Bowen (Teacher Stern Selby) for W; Timothy Pitt-Payne (County Solicitor) for the council.
MR JUSTICE TURNER said that if the council made the arrangements for W to have special educational provision within section 7 of the Education Act 1981 then it was responsible for W under section 4 and liable to pay the whole of her fees pursuant to section 6 of the Education (Miscellaneous Provisions) Act 1953. It was unrealistic for the council to argue that because the parents placed W in a particular school before it made the statement in which the school was named, it was the parents, and not it, who made the arrangements.
On a proper and sensible construction of section 7, it must be one or other of the education authority or the parents who made the arrangements and it could not be both. That was not a possibility contemplated by the Act .The council argued it did not make any arrangements for the provision of education at the school. It was true that the parents made the placement. But that was in light of the council's failure to provide a place at a school which could meet all W's educational and other needs.
For the council to assert that in those circumstances it did not make any arrangements for W's education was a travesty of the real position. It was to make a virtue out of inactivity by the council, itself having failed to provide a suitable school. The very act of making a statement and then agreeing to part fund the arrangement made it hard to imagine words more apt to describe what had been done by the council.
There was nothing in the 1981 Act which was consistent with the power of an education authority to limit the duration of the statement. On a review of the statement, the material was all to the effect that it was not in W's interests for her to be removed. The decision to transfer W to a college of further education after the age of 16 was one no reasonable education authority could have reached.
The court was satisfied that had the council properly directed itself in accordance with its legal duty, it would have made provision for paying the whole of the fees for W, and the court was justified in granting an order of mandamus so that the council must pay to W's parents such part of the fees they had paid since the statement was made. The decision to cease to maintain the statement should be quashed.
The case showed the technical nature of the law in the field of education. At an earlier stage it was open to the applicant to have appealed to the Secretary of State for Education, who had greater powers than the court to correct errors made by education authorities. Although the speed of response was not as great as was desirable in an ideal situation, appeal to the Education Secretary was likely to have one great advantage, which was finality. Resort to legal process to resolve disputes should only be had when all other avenues had been unsuccessfully explored.
Ying Hui Tan, Barrister