London Borough of Bromley and Special Educational Needs Tribunal and Others, QBD and CA (1999) ELR 260

This judgment confirmed that a child's need for occupational therapy, physiotherapy and speech therapy could be a 'special educational need' and that the therapies to meet these needs could be specified in Part 3 of a Statement as 'special educational provision'. Although the status of these therapies had been considered by earlier judgments (in the case of speech therapy, in the Lancashire judgment, in the case of occupational and physiotherapy in B v Isle of Wight Council (1997) ELR 279 the Bromley judgement is important because of the detail of the discussion.

The child, S, was 12 at the time of the judgment. He had quadriplegic cerebral palsy and impaired vision. He was unable to walk, sit up or stand and was totally reliant on adults for all his mobility needs apart from head movements. He was unable to wash, dress, toilet or feed himself. He was able to understand only a small number of words in contexts which were familiar to him and was considered to be functioning overall below the level of a one-year-old.

The Special Educational Needs Tribunal ordered that S's needs for occupational, physiotherapy and speech therapy were 'educational' and the therapies were 'special educational provision' for S. The LEA appealed against this decision to the High Court.

The judgment at Queen's Bench Division took as a starting point the definition of 'education' in the Shorter Oxford English Dictionary, one part of which is: 'the process of nourishing or rearing; the process of bringing-up; the systematic instruction, schooling or training given to the young ... in preparation for the work of life.'

The Court considered evidence provided by an educational psychologist who was supporting the parents at the tribunal 'that the purpose of education for S was to maximise his control over his own environment and that education for S involved a series of over-learning the basic functions of his day: eating, drinking, toileting, dressing, etc and co-operating about them'.

The LEA's appeal hinged on the argument that the tribunal had been wrong to regard these as educational needs and provisions. The parents argued that education for S would not be to teach him modern languages or physics but 'to teach him so that he may be prepared for the very limited work of his life.'

The High Court was supportive of the parents' and the tribunal's interpretation:

'If, as is undoubtedly clear, S needs to learn eating and drinking skills then, as it seems to me, to assist him in learning those skills will be an educational provision for him.'

A further ground on which the LEA appealed was that the tribunal in its Order had not quantified the amounts of therapy to be specified in the amended Statement. Their argument was that if the tribunal had made clear how much therapy was needed, they could possibly have demonstrated their ability to provide the required level from within their own provisions. The judge considered L and Clarke v Somerset County Council, and in the light of this earlier judgment made the following decision:

'At first sight the appellants (the LEA) seemed to have a good point in complaining that the number of hours should have been specified. However, Mr Gordon, in reliance on L and Clarke v Somerset County Council (1999) ELR 129, argues that it will not always be possible to specify the number of hours and that, he says, is the case here. L and Clarke v Somerset County Council was a decision of Laws J. He held that whilst there could be some cases where flexibility should be retained it was plain that statute required a very high degree of specificity. It is clear that very often specification of hours a week will be necessary and there will then be a need for that amount of therapy to be provided. However, the real question in relation to any particular statement is whether it is so specific and clear as to leave no room for doubt as to what has been decided in the individual case.

I start with the fact that Part 3 of the current statement does not attempt to specify any number of hours. It would not be possible to do that. The tribunal's decision was that the therapy should be provided as an integral part of S's day and throughout his waking day. Thus when S is awake there will need to be available language therapy and the other therapies, not of course constantly but as required so that the lessons may be constantly impressed upon him. In the circumstances, I reject this complaint.'

This aspect of the case is unique in two ways: it features an LEA appealing on the ground that special educational provision should be quantified in a Statement (as opposed to defending the position that quantification is not required). Also, it contains the only actual example in case law of a child who does not require their Statemented provision to be quantified: as such, the very exceptional nature of S's needs, provisions and placement give an indication of how rare non-quantification should be.

A child's need for occupational therapy, physiotherapy and speech therapy could be a 'special educational need' and the therapies to meet these needs could be specified in Part 3 of a Statement as 'special educational provision'.

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