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QUEEN v. ISLINGTON LONDON BOROUGH COUNCIL EX PARTE G.A. [2000] EWHC Admin 390 (8th September, 2000)
CO 2559/2000
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
CROWN OFFICE LIST
Royal Courts of Justice
Strand
London WC2A 2LL
08 September 2000
B e f o r e
Mr JACK BEATSON Q.C.
Sitting as a Deputy High Court Judge
THE QUEEN
v
ISLINGTON LONDON BOROUGH COUNCIL
EX PARTE G.A.
- - - - - - - - - -
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
- - - - - - - - - -
MR P BOWEN (instructed by John Ford Morrison, London N1 8LN) appeared on
behalf of the Appellant
MR T KERR (instructed by Islington Council, London N1 2UD) appeared on
behalf of the Respondent
- - - - - - - - - -
Judgment
As Approved by the Court
Crown Copyright ©
MR JACK BEATSON Q.C.
1. The Applicant is a nine year old boy with special educational needs. He has
severe learning difficulties with autistic features secondary to brain damage
acquired through an immunodeficiency state. Since September 1997 he has been a
weekly border at Doucecroft School near Colchester, an independent school run
by the Essex Autistic Society. It takes approximately one and a half hours to
drive the 75 miles from the parents home to the school. The present proceedings
arise out of a decision of the Respondent local education authority dated 25
May 2000 refusing to finance the transport of the applicant to and from
Doucecroft School. Transport has until now been provided by the applicant's
mother or by a family friend. The Applicant's case is that the local education
authority has unlawfully refused to meet the transport costs to and from school
which sections 324(5)(a)(ii), 509, and 19 of the Education Act 1996 empower it
to meet. Originally the claim was that the authority was under an obligation to
meet all transport costs, but, in opening the case on behalf of the Applicant,
Mr Bowen stated that what was being challenged was the decision not to provide
the Applicant with any free transport and that what was sought was sufficient
free transport. Suitable amendments were made to the form 96A.
2. Permission to apply for judicial review was granted on 27 July by Harrison J
who ordered expedition and made an order under section 39 of the Children &
Young Persons Act 1933 to preserve the applicant's anonymity. I will refer to
him as G.A., and any report must suitably disguise his identity.
3. G.A's parents first had contact with the local education authority in 1995.
In March 1996 the authority informed them that it was proposing to carry out a
statutory assessment of G.A.'s special educational needs and, after making the
assessment, that they would make a statement of his needs. There were
discussions between Mr Gurney, the authority's Principal Special Education
Officer, and the parents about a draft statement and possible school
placements. The parents requested that G.A. be placed at Radlett Lodge School.
The authority responded that a placement there would not be an efficient use of
its resources because of the cost of transport and because it considered that
G.A.'s needs could adequately be met at either a local school, Harborough
School, or at Whitefield School Waltham Forest. In a letter dated 20 August
1996 G.A.'s parents stated that, in order to proceed with the application to
Radlett Lodge, they were prepared to seek their own transport solutions but
reserved the right to make further applications regarding transport funding. Mr
Gurney responded on 21 August stating that the authority would agree to a
placement at Radlett Lodge on the basis that it paid the fees and the parents
provided the transport, and that it would be necessary for them to provide
transport throughout the period their son was at the school.
4. In the event neither Radlett Lodge nor Whitefield School were able to offer
a place to G.A.. There were further discussions with the parents, first about
Church Hill School in Norfolk and then, in May 1997, about Doucecroft School
where a place was available. In telephone conversations on 17 July 1997 between
Mr Gurney and G.A.'s father, Mr Gurney stated that the authority could not
agree to his request that it would provide transport for G.A. to Doucecroft and
that it had approached Radlett Lodge and Doucecroft on the agreed basis that
the parents would provide the transport. In response to a question from the
father Mr Gurney stated that the matter of transport was not likely to be
negotiable in the future. I should add that Mr Gurney explained that he had
explored the cost of transport and it was estimated at £95 per trip
including an escort.
5. The statement of special educational needs was made on 12 August 1997 naming
Doucecroft School but stating in Part VI (Non-Educational Provision) that
transport to and from school will be provided by G.A.'s parents at their own
expense. G.A.'s parents have on several occasions asked the local authority to
reconsider its decision on transport. Their case is based on changes of
circumstances since the statement was made, notably deterioration in his health
necessitating more journeys to and from the school than the two a week
envisaged, and deterioration in his mother's health. She now suffers from
stress and depression, and the evidence before me includes a letter dated 15
August 2000 from a psychiatrist who is treating her. Its date makes it
irrelevant in assessing whether the authority made a lawful decision on 25 May
but I note it states that the making of the journeys to and from school is
highly prejudicial to her mental health.
6. Before turning to the circumstances of this case and the authority's
decision, I shall summarise the relevant statutory provisions. Once a statement
has been made, section 324(5)(a) of the Education Act 1996 provides that:
"unless the child's parent has made suitable arrangements, the [local
education] authority
(i) shall arrange that the special educational provision specified in
the statement is made for the child, and
(ii) may arrange that any non-educational provision specified in the
statement is made for him in such manner as they consider appropriate ..."
(emphasis added).
It is clear that non-educational provision under this sub-section includes
transport ( R v Havering LBC, ex p K [1998] ELR 402, 404G per Sedley
J.).
7. A local education authority is also empowered to make arrangements for the
provision of transport "as they consider necessary" for the purpose of
facilitating the attendance of pupils at schools by section 509(1) of the 1996
Act, and, in the case of a child who, by reason of inter alia illness,
may not for any period receive suitable education unless such arrangements are
made, by section 19. By section 509(2) any transport provided pursuant to
arrangements made under section 509(1) must be provided free of charge. Where
the circumstances are such that a parent has a defence to proceedings brought
under section 444 of the 1996 Act for failing to secure the regular attendance
of the child at school, it has been held that the local authority is
bound to provide free transport under section 509: see Surrey CC v
Ministry of Education [1953] 1 WLR 516 and Devon CC v George [1989]
1 AC 573, decisions concerning the statutory predecessors in the Education Act
1944 of sections 509 and 444. By section 444(7) a child at a boarding school
shall not be taken to have failed to attend regularly at the school if he was
"prevented from being present by reason of sickness or any unavoidable cause".
Mr Kerr, on behalf of the authority, submitted that this provision, unlike
section 444(4), relating to day schools, does not afford a defence but defines
the scope of the offence, and that Sedley J's reference to section 444(7) in
R v Havering LBC, ex p K [1998] ELR 402, 405 stating it was a defence
should be treated with caution because it was made in the course of an
unreserved judgment. In the context of whether the local authority is bound to
provide free transport, I do not, however, consider there is a significant
difference between the impact of subsections (4) and (7) of section 444 on
section 509.
8. In November 1997 G.A.'s mother asked the local education authority whether,
in view of G.A.'s medical condition and the strain on her, it could provide
transport even if only for the short term. Mr Gurney replied stating that the
authority would not agree to provide transport because the basis upon which it
agreed to G.A.'s placement at Doucecroft was that the parents would provide
transport at their own expense. In January 1998 G.A. became very ill. This was
later diagnosed as immunoglobulin deficiency with brain damage related to that
illness.
9. In June 1999, following G.A.'s annual review, his father wrote asking the
local education authority to reconsider its stance on transport. The authority
responded on 17 June in similar terms to its response to the earlier request;
the basis upon which it had agreed to G.A.'s placement at Doucecroft was that
the parents would provide transport at their own expense. In September 1999
G.A.'s mother asked the local education authority to reconsider the question of
transport in view of G.A.'s immunodeficiency state (which his father's request
had not mentioned) and because a new treatment G.A. had started to receive in
July involved extra journeys to and from the school. The treatment involves an
overnight stay in hospital every three weeks in order to receive intravenous
infusions of immunoglobulins. She stated that the increased number of journeys,
which she had to provide because it was the only way of doing it that they
could afford, meant that as well as being very wearing, on occasion it was
dangerous for her to drive. On 14 October the authority responded stating that
its position continued to be that it was able to make local provision for G.A.
and had agreed to fund alternative educational provision for him at Doucecroft
in the knowledge that transport would be the parents' responsibility.
10. After this solicitors became involved and, following an exchange of letters
between the parents' solicitors and the authority, on 16 March this year the
solicitors wrote their letter before action asking the authority to reconsider
its decision and setting out the reasons for their view that the authority was
under a legal obligation to finance G.A.'s transport. They relied on sections
509(1) and 19 of the Education Act 1996, the number of days of school G.A. had
missed due to illness or hospital appointments, the fact that his health
remained unusually vulnerable, and the occasions on which G.A. could not be
taken back to the school after a mid-week appointment because of the stress on
his mother. On 29 March the education authority agreed to give the matter "a
completely fresh consideration" and invited further submissions by 14 April. On
31 March the parents' solicitors stated that they did not propose to make any
further submissions.
11. In its decision letter dated 25 May the education authority states:
"the placement at Doucecroft School was agreedand a statement completed on the
basis that the parents took responsibility for transport arrangements.
Islington have always maintained that G's special educational needs could be
met at Harborough School, and there is presently a place available for him at
the school.
Mr. Norman-Bruce finds that there appear to have been to changes in the
position since the beginning of G's placement:
(1) Mrs A appears to have found the travelling more difficult due to health
grounds;
(2) G's health appears to have deteriorated.
However, Mr. Norman-Bruce determines that neither of these factors would appear
to change the position taken when making the initial decision. In fact, these
changes would appear to support the view the G would be better placed at a
school nearer home. He concludes that the decision not to provide assistance
with transport was correct.
We do not agree that Islington has a legal obligation to finance the transport
to and from Doucecroft School as is claimed on behalf of your client, and we
disagree with your interpreetation of the legal position as set out in your
letter dated 16th March 2000.
The position therefore is that your clients continue to be responsible for the
travel provision for G's attendance at Doucecroft Schoool. However, if they
wish G to transfer to Harborough school whee there is a place available and
provision for G;s special educational needs can be made, would the please
contact the Principal Special Education Officer, mr. Peter Gurney."
12. This case has marked similarities to the decision of Sedley J in R v
Havering LBC, ex p K [1998] ELR 402. In that case the statement (albeit in
Part IV), also stated that the child's mother was to be responsible for
providing transport at her own expense, and she was subsequently unable to
maintain transport provision due to her personal circumstances and
unsuccessfully sought local authority assistance. In the present case the local
authority maintains that it would never have agreed to the naming of Doucecroft
except on the basis that the parents would meet the transport costs since it
considered there is a suitable local school. The evidence before me bears this
out. Mr Kerr, on behalf of the authority, submitted the parents in these
circumstances cannot accept the school but not the condition upon which it was
named. This, as Sedley J recognised in R v Havering LBC, ex p K (at p.
408), is a cogent argument, although his Lordship concluded (at p 409),
although with some hesitation, that since the choice of school in that case by
the Special Educational Needs Tribunal was neither predicated nor dependent nor
conditional upon the mother providing transport, the loss of transport did not
undo the statement. His Lordship considered that the authority could consider
whether, notwithstanding what is on the face of the statement, it should be
providing transport for the child and, having found the authority had made an
error of law, he remitted the matter to it.
13. In Mr Kerr's skeleton argument and in his submissions, G.A.'s parents are
also criticised for not appealing against the content of the statement and not
seeking the deletion of the words "at their own expense" from Part VI although
they were made aware of that right. This was a bad point and was not pressed.
The right of appeal given by section 326(1) is one against an authority's
assessment of the child's special educational needs and the special education
provision specified in the statement, including the school named, not against
the non-educational provision, and the letter from the authority enclosing a
copy of the statement in its final form refers only to rights of appeal against
the matters in Sections II and III and the placement in Part IV.
14. On behalf of the parents, Mr Bowen submits that section 324(5)(a)(i)
imposes a duty on the authority to make arrangements for the educational
provision specified in the statement, namely attendance at Doucecroft School,
and that the changes of circumstances both empower the authority to make
arrangements for transport and impose a duty on it to do so. If it considers
that a placement at Doucecroft which involves transport costs is not be an
efficient use of its resources it should amend the statement of G.A.'s special
educational needs.
15. I turn to the submissions made under the different statutory provisions.
Education Act 1996, section 324(5)(a)(ii)
16. Section 324(5)(a)(ii) of the 1996 Act formed the primary basis of the
challenge to the authority's decision. There are two stages in its operation.
The first is whether the authority has power under the section to arrange
transport; the second where the authority is empowered to do so, is whether its
decision to decline to do so is reviewable.
17. Section 324(5)(a)(ii) empowers an authority to arrange that any
non-educational provision (which includes transport) specified in the statement
is made for him in such manner as they consider appropriate "unless the
child's parent has made suitable arrangements". It is common ground that the
court is not the arbiter of what constitute suitable arrangements and the
decision as to suitability of the arrangements made by the parents is for the
authority alone, subject to review on well established principles of
administrative law: R v East Sussex CC, ex parte T [1997] ELR 311, 321;
White v Ealing LBC and the Special Education Needs Tribunal [1998] ELR
203, 224. In the absence of a valid determination that such suitable
arrangements have been made the authority has power to arrange transport.
18. On behalf of G.A., Mr Bowen submits that the authority failed to address
itself to the relevant legal question whether the parents "are making" suitable
arrangements for G.A.'s transport to and from school. The parent's agreement,
recorded in the statement in 1997, is said to do no more than
entitle the authority to conclude that at that time they had made suitable
arrangements. At that time it was envisaged that his mother would transport
him to the school on a Monday and from the school on a Friday, and the
authority did not satisfy itself that the parents would be able to make
suitable arrangements for his transportation more than twice a week or to pay
for regular transportation if his mother was unable to transport him herself.
Mr Bowen submits that their conclusion that the parents continue to make
suitable arrangements for G.A.'s transport is irrational or Wednesbury
unreasonable because (a) it does not take account of the increased number
of journeys, (b) the authority has made no assessment of the parents ability to
pay for transport, (c) it does not take account of the fact that the effect of
the difficulties is that the parents have been unable to secure his regular
attendance at school.
19. Mr Kerr submitted that the conclusion that the parents have made suitable
arrangements is rational because it is founded on the agreement reached on the
telephone with G.A.'s father on 17 July 1997. Mr Kerr's submission goes too
far. It would mean that however catastrophic the changes of circumstances an
authority's decision that the parents have made suitable arrangements would not
be open to challenge where those arrangements were originally made by agreement
with the parents. With regard to factor (c), which depends on whether section
444(7) would apply in any prosecution of the parents in respect of the failure
of the child to attend regularly at his school, Mr Kerr submitted that if G.A.
fails to attend Doucecroft regularly, the parents would not have a defence
insofar as the failure to attend arises from the failure of the parents to
provide or arrange transport..
20. By virtue of section 444(7) no offence is committed in respect of a child
who is a boarder at a school, because of sickness or any unavoidable cause. By
section 579(1) "boarder" includes a pupil, such as G.A., who boards during the
week but not at weekends. While any failure by G.A. to attend because of
sickness, whether when attending hospital for his regular treatment or
otherwise, clearly falls within section 444(7), the position of any failure to
attend because of a lack of transport is not straightforward. This is because,
although "unavoidable cause" can include lack of transport, see R v Havering
LBC, ex parte K [1998] ELR 402, 410, where Sedley J gave as examples
situations in which the means of transport ceased to exist or the passage of
the vehicle is blocked by a natural disaster, the "cause" must relate to the
child and not the parent: Jenkins v Howells [1949] 2 KB 218 and R v
Havering LBC, ex parte K. It was submitted by Mr Bowen that where, as in
this case, the reason for the mother's inability to drive the child to school
is stress, depression and tiredness caused by the health of the child and the
need to take him to and from hospital, the cause "relates" to the child. He
sought to distinguish ex parte K where Sedley J said (p 411) that the
cause relied on in that case (changes in the mother's personal circumstances
including difficulty in making her business viable and taking on modest
commercial premises) "is entirely a cause affecting the mother and her ability
to provide transport. It is only secondarily a cause affecting the child." Mr
Bowen, submitted that it would be extraordinary to impose a criminal sanction
on a person who, because of stress, depression and tiredness caused by the
child's illness, could not get her child to school. While this would
undoubtedly constitute strong mitigation, I accept Mr Kerr's submission that
this does not suffice to preclude the commission of the statutory offence. The
immediate cause of the child's absence relates to the mother, who could, as
G.A.'s mother did on occasion, arrange for somebody else to transport him.
21. The authority relied on the agreement in 1997 in its letters dated 14
November 1997, 17 June 1999, 8 December 1999, and 20 January 2000. The letter
dated 14 October 1999 states that the authority has reconsidered the request
"...in the light of new developments ... concerning [G.A.'s] health". The
decision letter of 25 May 2000 states that there are two changes of
circumstances; the deterioration in G.A.'s health and the fact that his mother
" ... appears to have found the travelling more difficult due to health
grounds". Although these letters do consider some of the changes of
circumstances, they do not take account of the increased number of journeys or
the parents' ability to pay for transport. With regard to finance, Mr Kerr
submitted that finance was not put in issue in the letter before action and
that the invitation to make further submissions was not taken up. I note,
however, that the mother stated in her letter of September 1999 that the only
way the parents could afford to provide the transport was by her doing the
driving, a matter not challenged or tested by the authority The statement in
the decision letter that the changes support the view that G.A. would be better
placed at a school nearer home may be a reference to the fact that the
difficulties have meant the parents have been unable to secure his regular
attendance at school, but this is not clear.
22. I have concluded that it was irrational or Wednesbury unreasonable
to conclude that the arrangements made in 1997 remained "suitable" despite the
changes of circumstances and factors (a) and (b) above.
23. The next question is whether the authority's decision not to exercise the
power is reviewable. Mr Kerr contended that the mother's difficulties, while
rendering the parents' obligation more onerous, do not negate it. He also
submitted that since the local authority had made it clear from the outset that
the placement was dependent on the parents being responsible for providing and
paying for transport, it cannot be an improper exercise of the authority's
discretion under section 324 for it to decline to pay for transport. This
argument was put in a number of ways. As well as in the context of section
324(5)(a) it was put more broadly, as a question of contract or estoppel, by
which the parents were precluded by their agreement from relying on any
illegality or irrationality. Alternatively, Mr Kerr submitted that they were
shut out by the principle of ex turpi causa since the parents were
seeking to rely on their own failure to take G.A. to school in breach of their
obligation under section 444 as a reason for the authority to reconsider the
question of transport. It was said that ex parte K is distinguishable
from the present case because Sedley J there found that the placement was not
transport dependent. Mr Kerr's argument is cogent but I do not consider that
the authority can lawfully fetter its statutory discretion for all time by
relying on the agreements the parents made in 1997. Once there has been a
relevant change of circumstances, the authority must reconsider the matter in
the light of the circumstances applying at that time. In the circumstances of
this case I do not consider the ex turpi causa maxim bars the applicant.
Any wrongdoing would be by the parents, not G.A., and, for the reasons given in
the context of my consideration of section 444(7), the nature and gravity of
such wrongdoing, which (see R v Wandsworth LBC, ex p O The Times 18 July
2000) determine whether it applies, are not sufficient to demand the exclusion
of relief.
24. Mr Bowen submitted that factors (a) to (c) in paragraph [18] above mean
that in declining to exercise the power they are in breach of their duty under
section 324(5)(a)(i) to make arrangements for the educational provision
specified in the statement, namely attendance at Doucecroft School. He also
submitted that, in taking account of their belief that G.A.'s needs could be
met at a local school not named in the statement, the authority took into
account an irrelevant consideration and applied the wrong legal test. Thirdly,
he submitted that reliance on Harborough, the local school, was irrational or
Wednesbury unreasonable given its inappropriateness for G.A. because it
was a day school without the facilities the evidence before me indicated he
needs.
25. The second and the third of these submissions are not unrelated. With
regard to the third, clearly the parents have never considered that Harborough
School would be an appropriate placement.. But this is not a matter for this
court. In any event, while the evidence provides some support for the parents'
view, it goes nowhere what would be necessary for a conclusion that the
authority's view that the school is appropriate is irrational. This is a matter
that should be determined in the normal way by the procedure set out in
paragraphs 9-10 of Schedule 27 to the 1996 Act, i.e. notice of the proposal to
the parents who have a right to make representations and, where the authority
and the parents cannot agree, a right of appeal to the specialist tribunal set
up by statute for this purpose.
26. Mr Bowen's second submission is based on R v Havering LBC, ex p K
[1998] ELR 402. Sedley J, who was primarily concerned with section 509 of the
1996 Act, held that the authority had no right to conclude that the child
should be at a school not named in the statement. His Lordship stated (at p.
408) that "if it were open to a local education authority ... simply to review
the statement, particularly when it is a statement that has been amended by the
specialist tribunal set up by statute for this purpose there would be little
point in having the statement. It would be possible, by sidewinds, for any
statement to find itself being informally reviewed and in effect amended by a
body which had no power to do either of those things." The statement there had
been amended after an appeal to the Special Education Needs Tribunal but that
is not in my view a material distinction. Whether or not a case has been to the
tribunal one effect of allowing informal changes would be to deprive parents of
their right to appeal under Schedule 27 of the Act against an authority's
assessment of the child's special educational needs and the special education
provision specified in the statement, including the school named.
27. There was in fact a way in which the authority could have sought to protect
its position. There is no reason why more than one school should not be
specified in a statement if, in the view of the education authority, more than
one school would equally answer the child's needs. This was done in Re C
[1994] ELR 272, where the second school named was the one the child's parents
preferred, which the authority agreed to include on the basis that the parents
were to be responsible for all travelling expenses and arrangements. It was not
done in the present case. Had Harborough been named as the authority's
preferred school and Doucecroft named as the school G.A.'s parents preferred
which the authority only agreed to include on the basis that the parents were
to be responsible for travelling expenses, the authority could satisfy its duty
under section 324(5(a)(i) by making arrangements for attendance at either
school. But the parents would, had that been done, had a right of appeal
against the naming of Harborough School, whereas, as noted, they had no right
of appeal against the requirement that they bear the cost of transport. While
that was not done, Mr Bowen noted that it is open to the authority to seek to
achieve this result by proposing an amendment to the statement. He submitted
that what the authority is doing by not seeking an amendment to the statement
and refusing to reconsider the matter, perhaps pending such an amendment, is to
leave the parents in a "Catch-22" situation. They either continue with the
present placement but G.A. would not get a suitable education because of his
absences, and his mother's condition would worsen. Alternatively, they accept
the authority's proposal of Harborough School which they consider unsuitable
but do so in circumstances in which they are deprived of an appeal to the
tribunal.
28. I have concluded that in this respect there is no material difference
between section 509 and section 324(5)(a)(ii), and the authority, in taking
account of its belief that G.A.'s needs could be met at a local school not
named in the statement, took into account an irrelevant consideration and
applied the wrong legal test.
29. I turn to the submission that factors (a) to (c) in paragraph [18 ] above
mean that in declining to exercise the power to provide transport the authority
is in breach of its duty under section 324(5)(a)(i) to make arrangements for
the educational provision specified in the statement, namely attendance at
Doucecroft School. Factor (c) depends on whether section 444(7) would apply in
any prosecution against the parents, and I have concluded that, to the extent
that the absences were caused by the mother's stress, depression and tiredness
it would not. It would, however, apply where the absences were due to G.A.'s
sickness, whether because he had to attend hospital for his regular treatment
or otherwise. With regard to the two other factors, even though I have
concluded that they mean it is irrational to conclude that the arrangements
made in 1997 remain suitable, it is not the case that if the local authority
gives proper consideration to these factors it is bound to decide to provide
transport. Accordingly, the matter must go back to the authority which must
reconsider its decision giving proper consideration to all the changes of
circumstances and not taking into account of its belief that G.A.'s needs could
be met at a local school not named in the statement.
Education Act 1996, sections 509 and 19
30. I can deal with these provisions more briefly. For the reasons given above
I consider that the authority is only under a duty to provide transport under
section 509(1) where G.A.'s absences are due to his sickness, whether on the
occasions he attends hospital for his regular treatment or otherwise. leave it
out of account at this stage. But the factors vitiating the authority's
exercise of its discretion under section 324(5(a)(ii) also vitiate the exercise
of its discretion under section 509(1). There remains the possibility of the
authority, exercising its discretion in accordance with the law, of
considering it necessary to provide transport under section 509, whether
entirely, or as the case was put on behalf of G.A., to the extent that his
parents are not making "suitable arrangements" for his regular attendance at
Doucecroft School. The authority should therefore reconsider its decision under
this section.
31. Section 19 provides that 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 arrangements are made. It was not
contested that "arrangements" under section 19 are not limited to purely
educational provision and include transport. Nor was it contested that in
considering decisions as to what is suitable education for the child, the Court
exercises its normal supervisory jurisdiction.
32. Mr Kerr submitted that the authority's decision letter responded to the
submissions concerning the different sections, including section19, mentioned
in the letter before action in a composite way indicating that it disclaimed
any responsibility on its part to act under section 19. There is, however, an
important distinction between section 19 and the other provisions. It is
established (see R v East SussexCC, ex p T [1998] ELR 251) that in the
exercise of discretion as to what was "suitable education" under section 19 a
local authority cannot take into account the resources of the authority.
Resources are, however, relevant to the exercise of discretion under
sections 509 and 324(5)(a)(ii). It is therefore important to address the power
under section 19 specifically. The composite way in which the decision letter
was phrased makes it impossible to conclude that the authority has so
addressed it. The authority should therefore also reconsider its decision under
section 19.
33. I am, as Sedley J was in ex parte K, aware of the battle lines that
have been drawn around a child who needs an education. On the one hand there
are the views on the part of the officers of the authority that the authority
made it clear from the outset that G.A.'s placement at Doucecroft was dependent
on the parents being responsible for providing and paying for transport, and
the parents had agreed to this. The authority had determined that a placement
at Doucecroft involving transport costs would not be an efficient use of its
resources and if the local authority now is to meet these costs it would be at
the expense of others with special needs in the borough. Moreover, in view of
the deterioration in his health they consider G.A. would be better placed at a
school nearer home. On the other side there are the parents, who wish to
preserve the placement at Doucecroft despite the undoubted logistical
difficulties. One consequence of these judicial review proceedings is that
there will be before the authority a fuller explanation of the reasons why the
mother cannot cope with the increased number of journeys so that it can come to
a more fully informed conclusion than the one that it was able to make
previously. I hope that, since the new term has started, it will be possible
for the authority to consider the matter urgently.
34. As far as relief is concerned, the applicant is entitled to certiorari to
quash the decision made on 25 May. I shall hear counsel as to whether any
further relief is called for, but if it is it must be upon the basis of
findings that I have expressed.
- - - - - - - - - -
MR BEATSON QC: May I ask, did you receive a copy of the draft
judgment?
MR BOWEN: Yes.
MR BEATSON QC: Although I did not give you 48 hours notice, are you
happy to treat this as being handed down?
MR KERR: Yes, my Lord, I have actually only spotted one typing error.
MR BEATSON QC: I would be very grateful if you could let me have it. You
did not receive it because I had technological difficulties on Wednesday, which
were overcome.
MR KERR: My Lord, it was paragraph 25, the penultimate line on the page,
I think the word "near" may have been omitted from the end of the line.
Paragraph 25, the penultimate line of the page.
MR BEATSON QC: "It goes nowhere near".
MR KERR: I think that is what your Lordship meant. My solicitor has
drawn my attention to one other, which is on page 2, the last sentence of
paragraph 1, it should be "Form 86A".
MR BEATSON QC: Yes, I am very grateful. For the reasons given in the
judgment handed down, I rule that the Applicant is entitled to
certiorari to quash the Council's decision made on 25th May and it has
to go back to the Council.
MR BOWEN: I am obliged. Your Lordship indicated that it might be
appropriate to consider further relief today. I have drafted a minute which I
will hand up to you (same handed).
MR KERR: I have seen it. I have a slightly different proposal which is
much the same.
MR BEATSON QC: Let me hear Mr Bowen.
MR BOWEN: The first order reflects the amendment that I suggested you
made to the Form 86A in relation to the relief sought. I have inserted,
"between the Applicant"----
MR BEATSON QC: That is "any".
MR BOWEN: So, clearly, that reflects your Lordship's judgment
already.
"(2) There be a declaration that the Respondent is obliged to
provide the Applicant with free transport to and from his school sufficient to
ensure that the Applicant receives a suitable education."
That also follows from your Lordship's judgment. Mandamus----
MR BEATSON QC: Save, of course, that the authority is going to have to
decide again what it considers "suitable education".
MR BOWEN:
"(3) Mandamus to issue requiring the Respondent to reconsider it
decision in accordance with the judgment of the Court within 7 days of the date
hereof."
Bearing in mind the urgency with which this matter has been heard during
vacation, I think the local authority should also move with speed to ensure
this can be sorted out as soon a possible.
Number (4) was a proposal which I had hoped that instead of No (3) -- if I can
agree with my learned friend that he is not in a position to agree (4), that
will have to come out.
In No (5), it will reflect the fact that the Applicant has been successful in
this matter.
"The respondent to pay the Applicant's reasonable costs and
disbursements occasioned by this application and, if not agreed:
(a) the Respondent to pay 75% of the said costs or a sum that the Respondent
considers reasonable, whatever is greater, within 28 days of receipt of the
Applicant's bill of costs; and
(b) there be detailed assessment in relation to the remainder."
That is not, I have to say, a usual costs order. I have found myself in
situations where I have been arguing with local authorities over a year
afterwards where nothing has been paid because the whole bill is in issue, and
I think it only appropriate that at least a proportion of those costs should be
paid, bearing in mind that the Applicant is legally aid and that the firm will
not be paid -- they are a legal aid firm -- and they should be entitled to have
some payment sooner rather than later, so I would ask that your Lordship make
the order in those terms.
MR BEATSON QC: Yes, Mr Kerr.
MR KERR: My Lord, I would invite your Lordship to take the course that
is often taken where one is dealing with a responsible local authority, who has
unsuccessfully defended a judicial review, which is to grant a declaration
rather than certiorari to accept a formal undertaking to the Court,
which I am in a position to give, in lieu of mandamus. Certiorari
and mandamus are not necessary when there is a clear declaration of
invalidity of the decision, which I accept there must be, and a clear
undertaking to reconsider the matter urgently.
Can I just address myself to how that fits into the draft that my learned
friend has handed up? In relation to his order No (1), I would propose that
instead of certiorari that "a declaration be made that the decision" etcetera,
and then add the words "was invalid" at the end of the sentence, so it is
exactly to the same effect, but it is declaratory relief instead of
quashing.
In relation to point No (2), we do not accept that it follows from your
Lordship's judgment, for the reasoning already put, and the difficulty in the
last few words of the sentence, but in relation to No (3) I am in a position to
offer a formal and clear undertaking that the Respondent will reconsider, I
think one can usefully say, the decision referred to at paragraph (1) above.
Then we would submit, in the usual form, "in accordance with law", which means,
as your Lordship knows, in accordance with your Lordships's judgment. We are
prepared to say that that will be done urgently, irrespective of any question
of appeal, which I will come to later, but seven days is very short, given that
my clients are not here. I received telephone instructions yesterday in
relation to what I am putting to your Lordship now but, as to the seven days, I
simply do not know whether people will be back from holiday.
MR BEATSON QC: I noticed at the hearing, that in fact at one time it was
contemplated that more evidence was going to be put in by someone who was
coming back after the end of August. I had assumed, as you took no point on
that, that that point had gone away, but it is similar.
MR KERR: The person was the decision-maker himself, Mr Norman Bruce, who
took the view that the letter was sufficient.
I do not know whether he is back. It is not necessarily the case that he would
be the only decision-maker, he may well be back by now and it may be that seven
days would be no problem. I am certainly in a position to say that this will be
considered urgently.
MR BEATSON QC: You resist seven days on the grounds that you do not know
whether that is possible.
MR KERR: We do not want to be put in a position of having to come back
for an extension, that would not be sensible.
So far as No (4) is concerned, it may well be that that is the sort of formula
that is thrashed out, but it is not something that I have been able to get
instructions on.
MR BEATSON QC: Yes.
MR KERR: So far as No (5) "costs" is concerned, my Lord, I invite your
Lordship, as I have already flagged this up at the substantive hearing, that in
the event a result of this kind should be the outcome of the case, and I would
have some submissions to make on costs.
What I am inviting your Lordship to do, in the circumstances of this case, is
to make no order as to costs, apart from Legal Aid Taxation. I put that forward
on this basis -- which I had already flagged up at the main hearing -- that in
the letter of 16th March (which was the formal letter before action). We need
not go back to the bundles, but for your Lordship's note it is pages 43 to 45
of the long bundle. The request that was made was for the LEA to decide that it
would finance free transport. There was no mention in the letter of partial
funding, it was simply put on the basis of section 509(1) and the use of the
word "free" in that section. That was, as your Lordship will recall, followed
up by an invitation to make further submissions on factor or law and, on 31st
March - for your note, page 126 of the bundle - the response was:
"We do not propose to make any further submissions in fact and
law."
The reason given for that was:
"Our letter dated 16th March outlines fully our view of the legal
position."
Of course, that was then found not to be the case. We discovered that that
letter was not the full legal position on my friend's case, a couple of days
before the hearing, when we received paragraph 11 of the skeleton argument
which did not deal with part funding the first time.
MR BEATSON QC: Were you there, was the authority there at the leave
stage?
MR KERR: Yes, my Lord.
MR BEATSON QC: This change was not canvassed?
MR KERR: No, my Lord. As you may recall, the relief sought in the Form
86A, paragraph 1, we still have. At page 2 of the bundle was a very much
starker form of mandamus than that which my friend now puts forward in
his draft order. It is quite simply mandamus requiring the respondent to
provide the applicant with free transport to and from school. That it what we
came to resist.
The further submissions of fact and law that could have been made but were not
ought, in my submission, to have included the reconsideration point which is
now the outcome of the case. It would be too bold for me to say, in those
circumstances, that I should have some costs up to a certain date or whatever,
because that would not help anyway with my assisted opponent. My Lord, in my
submission, in the light of that background, it would not do justice to my
clients to order them to pay the whole of the costs of the other side in the
normal way.
My Lord, the only other point that I add, by way of footnote to that, is that
in view of the agreement that was reached in 1997, albeit that your Lordship
distinguished between the position of the parents giving agreement and the
child, your Lordship may feel, that in the circumstances, the parents, at any
rate, have had enough generosity from Islington's public funds, and that is
what I say on the subject of costs. My Lord, the only other point I have to
deal with is permission to appeal. Your Lordship may want to hear Mr Bowen.
MR BEATSON QC: I will hear Mr Bowen on costs.
MR BOWEN: My Lord, it is a bold submission that the respondent makes in
relation to costs, dealing with the reasons why his authority should not pay
costs. The way it is put is, that we have always asked from the beginning for
all our costs to be paid. Two points have been made about that: the first is
that it is very clear from what Mrs A said in her statement (which you will
find at page 54 of the bundle at paragraph 19):
"Basically I want the LEA to transport G from the home to school
and vice versa each week. All I am asking for is two journeys a week. I accept
there may be weeks where a third journey is needed because of a hospital
appointment, and I would not mind having to deal with this. I am worried that
if we pursue the transport issue, the LEA will withdraw G's placement..."
I cannot find it now, but the offer has been made in the past that Mr and
Mrs A would make available their own car. All they ask is for the LEA to
provide a driver and, if necessary, an escort.
MR BEATSON QC: It may not have been a very practical offer, given
insurance and other problems.
MR BOWEN: The point is, we have been open to offers of settlement in
this case from the outset. It has always been open to the LEA to come back to
us and say, `look, we are not going to pay all your costs, but how about we
reach some agreement, so we can take the strain of you, Mrs A, and still ensure
between us, consistent with both our duties, that G is receiving suitable
education.' They have not done that. They have never ever made an offer.
The second point to be made is that, notwithstanding my learned friend's
protestations at the full hearing that this is something that had been sprung
on them, of course, he went on to fight the case. If the point that we said
was, `well, we would like to amend it to insert the word "any" in relation to
the decision challenged and the relief sought', my learned friend could say,
`if you had said that at the outset then, of course, we would have agreed this,
and we would have had no need to come here', then I think he might at least
have half a leg to stand on. As it is they have from the outset made their
position very clear, they resist not only paying all costs, but they resist and
have resisted paying any of the costs of transportation. That is the case that
they have put and that is the case upon which they have lost. A costs order
should follow in the usual way.
MR BEATSON QC: Do you have anything to say to me about his submissions
about the form of relief? Is it convenient to do that before we get to
permission for appeal?
MR BOWEN: I can deal with it now, or I can deal with it in relation to
the submissions on permission to appeal.
MR BEATSON QC: You might as well deal with it now, as I have heard Mr
Kerr.
MR BOWEN: In relation to his suggestion that there be only a
declaration, I take the point, of course, that certiorari is a
discretionary remedy, but my learned friend has given no reason why your
Lordship should refuse to grant certiorari in a case where it has been
plainly found that on every single point that was argued, the local authority
were wrong. His only reason is that they are a responsible authority. They have
given no evidence to support that, other than to say, well, they are a local
authority. If his submission was right then certiorari would never be
issued against any local authority or education authority. Simply to stand up
and say, we are a responsible authority having lost, in my submission, is not a
reason----
MR BEATSON QC: Are you saying they are not responsible and they need
certiorari?
MR BOWEN: The relief sought follows, as night follows day, from your
Lordship's judgment. Indeed, you stated in your judgment that certiorari
would be granted and that is in the body of your order already. Of course, it
is open to your Lordship to reverse that now, but I merely point out that the
only reason that my learned friend gives for refusing, is the fact that they
are a local education authority. If that is a reason then, of course,
certiorari would never be issued, however wrong a decision of a local
authority.
The comfort that it gives to my clients is that they have not only your
Lordship's judgment, but an order. Of course, in the absence of an order, your
judgment is the law, but they do not have an order which states very plainly
what it is they have been arguing about for many months.
I would ask that your Lordship grant certiorari in the same terms that I have
set out.
MR BEATSON QC: I must say, I am not minded to make the declaration that
you have set out in No (2) because, as was common ground at the hearing,
ultimately it is going to be a matter for the local authority to determine
lawfully what suitable education the Applicant requires and, in that sense, it
is not clear to me what that would add to either certiorari or
mandamus, or an undertaking in the form Mr Kerr has proposed.
MR BOWEN: It follows from the thrust of your Lordship's judgment that if
G is not receiving suitable education, and I have in mind, in particular,
section 19, that the local authority's duty is triggered to provide such
transport arrangements as are necessary to supplement the transport
arrangements that G is already receiving, so as to ensure that he thereby
receives suitable education.
The comfort that that order will give and the effect it will have, is to ensure
that the local authority cannot turn around and say, we are not going to
provide you with any transport at all. They had to focus -- and it is clear
from your Lordship's judgment, in any event -- their mind on this question. It
is just an additional comfort that G's parents will have, knowing that when the
local authority go back and reconsideration this decision -- and it has to be
borne in mind that they have reconsidered the decision, perhaps ten or 12 times
already and got it wrong on every occasion, that would be suitable----
MR BEATSON QC: I only saw three or four in the papers.
MR BOWEN: I would say three or four.
MR BEATSON QC: I think I understand your point. What about
mandamus as opposed to the undertaking, and urgently as opposed to seven
days. Seven days is a short time.
MR BOWEN: It is. The case was heard very quickly for precisely the
reason which was explained on the last occasion, term is beginning----
MR BEATSON QC: Has term begun?
MR BOWEN: It starts this Monday. As for whether it would be
mandamus or an undertaking, I have very little to say on that. What I
would ask for is that there be liberty to apply in any event as there is
nothing to stop us coming back. It would be appropriate in this case, bearing
in mind that the proceedings may have to be reactivated in due course.
MR BEATSON QC: I am grateful. I think I will deal with the orders before
permission. I am going to make the order of certiorari in the form of No
(1) in Mr Bowen's draft minute. I am not going to make a declaration with
regard to the form that is drafted in No (2).
With regard to the point covered in No (3), that on the undertaking of the
respondent council to reconsider the decision referred to in No (1), in
accordance with the law, urgently, and, if possible within seven days, I make
that further order. There will be liberty to apply.
As far as the costs are concerned, the Applicant won, and I accept Mr Bowen's
submissions that he is entitled to his costs. I have not heard Mr Kerr on the
matter dealt with in No 5(a) of Mr Bowen's draft minute and I do not know if
that is resisted?
MR KERR: We would invite your Lordship to make the usual order, detail
assessment and not to make any special order, as there is nothing to justify
departure from the ordinary course. We do not have a schedule in court
today.
MR BEATSON QC: I am going to make a detailed assessment in relation to
costs. I am not going to make the order that they pay 75% within 28 days.
Will you be able to draw up the order between you for the court now?
MR BOWEN: I have a clean copy onto which I have written the amendments
your Lordship has made, so I can hand that to your learned associate.
MR KERR: My Lord, in relation to permission to appeal. The application
very shortly is put on the following basis. It is partly a question of asking
the Court of Appeal to look at the construction of the statutory provisions, in
particular, the section 509 point which, we submit, merits the consideration of
the Court of Appeal.
Your Lordship may recall that this is a field of law in which two Court of
Appeals have disagreed with each other, not necessarily in a manner that would
impact on the result of this case should it go further, but it is a difficult
area of law. I am referring to the decisions in Re C and the subsequent Dyford
case in which Butler-Sloss LJ roundly rejected the reasoning of Staunton LJ.
MR BEATSON QC: Not on my point.
MR KERR: No, my Lord. This is a difficult area so far as construction is
concerned, particularly of section 509. My Lord, more broadly, we would be
inviting the Court of Appeal to adopt, if you like, a lower intensity of
review, having regard to the nature of the right in play. I say this with due
difference to your Lordship and with some trepidation, but we would be
submitting to the Court of Appeal that the approach that your Lordship adopted
was too intense a review, having regard to the nature of the right in play. It
is an important right, but not a human right, for example, the right to life
etcetera, but the degree of scrutiny. Perhaps we are being over anxious, but
the correct approach would be to look at the material before the local
authority and ask the question whether there was material before it entitling
it to come to the conclusion, to which we would be submitting the answer was
"yes" and not to, if you like, adopt what we would call the "fine tooth comb"
approach to the decision-making process which we fear your Lordship has done to
our detriment, as regards the outcome. My Lord, that is our application.
MR BOWEN: My Lord, the point on which my learned friend seeks to
persuade your Lordship that your judgment is wrong -- rather than this, raises
any particular point of interest which the Court of Appeal may wish to consider
-- is that you have adopted too intense a review under
Wednesbury----
MR BEATSON QC: A fine tooth comb point.
MR BOWEN: Of course, the basis upon which your Lordship found that the
decision was irrational was that there had been irrelevant considerations taken
into account. One does not need to know how intense the review is to see that
irrelevant considerations were taken into account.
Secondly, the question of intensity to review is an interesting one but does
not arise in this case. Your Lordship did not seek to adopt a super Wednesbury
type approach as it is some times referred to, it was never suggested that it
was necessary by me, I never sought to invoke any particular Convention right,
and the classic Wednesbury test which your Lordship applied was the suitable
one. I do not think my learned friend can go any better than that.
As far as the question of whether this raises a point of particular public
importance or interest for the Court of Appeal, really that ought to be a
decision that the Court of Appeal takes for themselves.
MR BEATSON QC: I think Mr Kerr you must ask the Court of Appeal for
permission.
MR KERR: So it be.
© 2000 Crown Copyright
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