- This
is the judgment of the court. Although given on an application for permission
to appeal, it deals with a novel point which has been fully argued before us,
and accordingly we direct that paragraph 6.1 of the Practice Direction (Citation
of Authorities) [2001] 1 WLR 1001, which would otherwise prohibit its citation
in other cases, does not apply.
- IPSEA
(the Independent Panel for Special Education Advice) is a national charity which
provides advice and support to parents of children with special educational needs,
among other things in bringing appeals before the Special Educational Needs Tribunal
("SENT"). They wish to challenge the legality of three paragraphs in the "SEN
Toolkit", non-statutory guidance issued by the Secretary of State to those working
in this field. On 26 March 2002, Newman J refused them permission to apply for
judicial review. This is their application for permission to appeal against that
refusal, adjourned for oral hearing by order of Laws LJ. The hearing has followed
the appeal in E v Newham London Borough Council and the Special Educational
Needs Tribunal [2003] EWCA Civ 000.
- Both
concern the degree of specificity with which the special educational provision
to be made for a child's special educational needs is required to be spelled out
in statements of special educational needs made under s 324 of the Education Act
1996. Section 324(2) requires a statement to 'be in such form and contain such
information as may be prescribed'. Section 324(3) provides that:
"In
particular, the statement shall -
(a)
give details of the Authority's assessment of the child's special educational
needs, and
(b)
specify the special educational provision to be made for the purpose of meeting
those needs, including the particulars required by subsection (4) . . ."
- The
contents of a statement are now prescribed by the Education (Special Educational
Needs) (England) (Consolidation) Regulations 2001, which came into force on 1
January 2002 and replaced the Education (Special Educational Needs) Regulations
1994. Both require that a statement be in a form substantially corresponding to
that set out in Part B of the Schedule to the Regulations. This contains six parts.
The first gives particulars of the child and of the representations, evidence
and advice taken into account by the authority. The second sets out the child's
special educational needs. The third, entitled 'Special Educational Provision',
must 'specify' the objectives which the special educational provision for the
child should aim to meet; the special educational provision which the authority
consider appropriate to meet the needs specified in Part 2 and the objectives
specified in Part 3; and the arrangements to be made for monitoring progress in
meeting those objectives. Part 4 is concerned with the type of school, Part 5
with the child's non-educational needs, and Part 6 with the non-educational provision
to be made for those needs.
- Under
section 324(5), unless the parents make their own arrangements, the local education
authority ("LEA") must arrange that the special educational provision specified
in the statement is made for the child in such manner as they consider appropriate,
and may arrange that any non-educational provision specified in the statement
is made for him. Unusually for statutes dealing with the provision of public services,
therefore, this regime gives the individual child, through his parents, an enforceable
right to the special educational provision laid down in the statement. Not surprisingly,
parents and those advising them are concerned that statements should be as specific
as possible about what is to be provided. Underlying that concern is the fear
that statements will be drafted more with an eye to the resources available than
to the needs of the particular child. As Mr John Wright, Chief Executive of IPSEA,
states:
"In
IPSEA's experience, vaguely written Statements are at the root of many of the
situations which cause parents to seek advice. For example:
* The
major and most common problem facing parents whose children have vaguely worded
Statements is that no particular level of provision is guaranteed. Thus 'regular
speech therapy' is virtually meaningless: Christmas dinner is regular; so is Halley's
comet. Many parents contact IPSEA for advice when their statemented child has
his or her provision reduced. There is little, legally, we can advise them to
do unless the provision in the Statement is specified and quantified. Without
clear and unambiguous quantification (e.g. in terms of number of hours or sessions
a week) children lack the legal entitlement to provision which the law intended
them to have . . . "
- To
meet this concern, the Code of Practice issued under section 313 of the Act states
that the second sub-section of Part 3 of the Statement should set out all the
special educational provision that the LEA consider appropriate for all the learning
difficulties identified in Part 2 and further:
"The
provisions set out in the subsection should normally be specific, detailed and
quantified (in terms, for example, of hours of ancillary or specialist teaching
support) although there will be cases where some flexibility should be retained
in order to meet the changing special educational needs of the child concerned."
That
guidance was originally contained in paragraph 4.28 the 1994 Code of Practice
and is still contained in the current Code of Practice. In July 2000 a revised
draft Code was circulated for consultation and in July 2001 a draft was placed
before Parliament for approval under the Act. This sought to modify the guidance
on quantification. It was withdrawn in response to the Parliamentary debate. In
October 2001, a further draft was placed before and approved by Parliament. In
paragraph 8.37 is repeated word for word the guidance on flexibility in paragraph
4.28 of the 1994 Code.
- The
SEN Toolkit was produced in conjunction with the new Code. It was designed to
give more detailed and practical advice. Section 7 deals with Writing a Statement
of Special Educational Needs. Paragraphs 25 to 42 deal with the 'Provision' section
of a Statement. The applicants argue that this seeks to dilute or water down the
obligation to quantify in just the way that the Secretary of State tried and failed
to achieve through the proposed new Code. They take exception to three particular
paragraphs.
- Paragraph
30 states:
"LEAs
are required to be specific about provision. Provision should normally be quantified,
for example in terms of hours and frequency of support, but there are times when
some flexibility needs to be retained either to meet the changing needs of the
child or to allow for appropriate and alternative responses from within the school
to reflect particular class or school arrangements. If the provision is not quantified,
the detail must still be such that it is clear to parents and professionals what
will be delivered and by what mechanism."
This
is criticised for adding a further category of case in which it is permissible
to depart from the requirement to quantify. In addition to meeting the changing
needs of the child, it is argued, flexibility might be retained to reflect particular
class or school arrangements. Newman J obviously saw some force in that criticism:
"I
am bound to say, although I have heard no detailed argument, that if in any particular
case a statement of special educational needs lacked specificity and quantification
where the changing needs of the child did not require it, reliance by an LEA or
the Tribunal upon this particular paragraph of the Toolkit would be likely to
be of little avail."
- Paragraph
38 of the Toolkit states:
"LEAs
will always need to specify provision but they will need to consider whether there
are times when it would be inappropriate to provide further detail or quantify
provision when a child is placed in a special school or specially resourced provision
in a mainstream school which is funded by the LEA but provided by the school.
In such settings there is a wide range and availability of specialist help and
facilities on site with specific support and equipment provided by the school
and teaching and learning programmes that can be varied day-to-day as required
by the individual pupil. Such resources can therefore be managed flexibly to meet
the child's changing needs. There will be times when a particular pupil regularly
requires resources additional to those generally available and these will need
to be set out in more detail."
This
too is criticised for seeking to promote a lack of specificity for reasons other
than the changing needs of the child and in particular for drawing an impermissible
distinction between children in special schools or specially resourced units and
those in mainstream schools (a criticism particularly made of the statement in
the case of E v Special Educational Needs Tribunal.) Newman J was not disposed
to accept this criticism. The paragraph emphasised that the resources of a special
school could be managed flexibly to meet the child's changing needs. Further,
short of complete withdrawal of a particular provision, 'flexibility for each
child at the school within the provision available at the school would seem in
principle desirable as it might suit the needs of a particular child.'
- Paragraph
39 of the Toolkit states:
"Schools
and LEAs will need to make decisions about the interventions and provision appropriate
to each pupil on an individual basis. This can sometimes only be done by a careful
assessment of the pupil's difficulties in the school and classroom context. It
may therefore sometimes be inappropriate to quantify in advance the action that
might be taken in terms of how much individual tuition a pupil might need, or
how many hours of in-class support may be necessary, or what size of teaching
group may be most appropriate."
This
again is criticised as an impermissible extension to the exceptions to the 'presumption
of quantification' in the new Code. In particular, it refers to matters which
clearly fall within 'staffing arrangements' which are specifically mentioned among
the matters which must be 'specified' under the regulations. Before Newman J,
however, it appears to have been accepted that the implementation of this paragraph
might or might not give rise to a breach of the Code depending upon the needs
of the child. It therefore called for no further comment.
- Overall,
Newman J was conscious that the applicants sought to make a generic attack upon
non-statutory departmental guidance which might or might not lead to unlawful
results in any particular case. He took the view that the guidance given in his
judgment would enable the Toolkit to be used in a way which 'would serve to avoid
any departure from the law in respect of any child'.
- This
has left both parties dissatisfied. The applicants have not succeeded in having
the offending paragraphs of the Toolkit withdrawn. The Secretary of State, on
the other hand, is left with a judgment which accepts the force of the criticism
made of paragraph 30 and that the other paragraphs are capable of being applied
unlawfully in a particular case. Newman J records in his conclusion that 'It emerged
as common ground that the principle of flexibility was available for an LEA and
a Tribunal so long as the decision not to specify or quantify was based upon an
assessment that such a course was to meet the changing needs of the child.' That
has not remained common ground before this court.
- The
parties disagree on three interrelated questions. The first is whether the duty
to 'specify' the matters laid down in the Regulations requires that those matters
be quantified unless a particular exception applies. The second is whether the
only permissible exception is that laid down in the Code, that is where flexibility
is required to meet the changing special educational needs of the child. The third
is whether 'the changing special educational needs of the child' in the Code must
be construed by reference to the definition of special educational needs in section
312(1) of the 1996 Act. This provides that a child has special educational needs
'if he has a learning difficulty which calls for special educational provision
to be made for him'. By subsection (4), special educational provision is 'educational
provision which is additional to, or otherwise different from, the educational
provision made generally for children of his age in schools maintained by the
Local Education Authority (other than special schools).' Any change, it is argued,
must therefore relate to the nature or degree of the child's learning difficulties,
rather than to the wider context of the interaction between those difficulties
and the educational provision made for him.
- The
legal obligation of the LEA and of the SENT is to write a statement which 'specifies'
the matters laid down in the Regulations. If Parliament had meant specification
to mean numerical quantification no doubt it would have said so. (It is worth
noting that, in contrast to the other matters referred to in the schedule, departures
from the national curriculum have to be specified out 'in detail'.) However, the
statement clearly has to spell out the provision appropriate to meet the particular
needs of, and objectives identified for, the individual child. It must be addressed
to the needs of the child rather than to the needs of the system. As Laws J (as
he then was) said in L v Clarke and Somerset County Council [1998] ELR
129 'in very many cases it will not be possible to fulfil the requirement to specify
the special educational provision considered appropriate to meet the child's needs,
including specification of staffing arrangements and curriculum, unless hours
per week are set out.'
- It
follows that any flexibility built into the statement must be there to meet the
needs of the child and not the needs of the system. But the needs of the child
cannot be seen in a vacuum. They may fluctuate for a wide variety of reasons.
Some of these will be related to the child's own state of fitness or health. Some
of these will be related to the interaction between the child and his environment.
It is, of course, possible to diagnose his learning difficulties without reference
to the provision being made to cater for them. But it is not always possible to
prescribe that provision without taking into account the context. The particular
facts of E v Newham London Borough Council and the Special Educational Needs
Tribunal provide a good illustration of such a case. Furthermore, a child
may flourish in one setting within a particular peer group and with particular
teachers, therapists or assistants. Exactly the same numerical input but in a
different peer group or from different people may be actively damaging.
- If
that is the sense in which 'the changing needs of the child' is understood, then
there is no inconsistency between the Code and the Toolkit. Read as a whole, the
Toolkit demonstrates a sensible and sensitive understanding of the fluctuating
needs of the child. The Code is policy guidance for local education authorities.
It does not have to be read as if the statutory definitions were incorporated
by reference.
- Mere
inconsistency between the Toolkit and the Code would not without more render the
Toolkit unlawful. But read in that way, there is also no inconsistency between
the statutory provisions and the Code. The Code requires precision as the general
rule, but provides for flexibility where this will best meet the needs of the
child. In our view, as expressed in E v Newham London Borough Council and the
Special Educational Needs Tribunal, that is what is contemplated by the obligation
to specify the provision to be made for him. It remains the case that vague statements,
which do not specify provision appropriate to the identified special needs of
the child, will not comply with the law.
- For
those reasons, we refuse permission to appeal.