Case law: eleven important judgements |
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‘Case law’ is the law which is developed by the courts as they make their judgements on cases brought to them by parents who believe that either the LEA or the Secretary of State for Education is failing to fulfil their legal duties, or that the Special Educational Needs Tribunal has made an ‘error in law’ in judging their appeal. Most cases come to court under judicial review and are heard by judges sitting in the High Court. Not all judgements have implications for other children. The ones summarised here do, however, and IPSEA uses them regularly as part of our advice to parents. Caution: these summaries of case law are meant to help you understand the decisions but may not accurately represent the full legal effect of a case. If in doubt, seek legal advice. |
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R vs The Secretary of State for Education and Science, ex parte E (1991) |
E was a 13-year-old boy with literacy and numeracy problems. His statement referred to both of these as special educational needs in part 2, but specified only provision to meet the literacy problems in part 3. The LEA’s explanation was that as the numeracy difficulties were not serious enough for them to have to make any provision (i.e. they could be met from the school’s own resources), they did not have to specify this provision in part 3. The parents disagreed and appealed to the Secretary of State and then the divisional court, which upheld their appeal. The Secretary of State appealed to the court of appeal, and lost. The final judgement included these rulings: “A child has special educational needs if he has a learning difficulty which requires special educational provision. Of course a child may have more than one learning difficulty. If the special educational provision which the child requires for all his needs can be determined, and provided, by his ordinary school, then no statement is necessary. But once the local education authority have decided that they are required to determine that some special educational provision is provided for him, they have to maintain a statement for him under section 7 in respect of that child, not in respect of any particular learning difficulty that he may have. Then the statement must specify in part 2 the authority’s assessment of the special educational needs of the child ... and in part 3 the special educational provision to be made for the purpose of meeting those needs ... The local education authority is obliged to determine the special educational provision that should be made for the child in respect of each and every educational need identified in the statement ... ... the duty of the authority is then to arrange that the special educational provision specified in the statement is made for the child. It may be that in some cases, or in relation to some particular needs, it will not be possible for the authority to fulfil that duty without themselves providing the requisite special educational provision. But where the authority take the view that the school is able to provide some part of the special educational provision which the child requires, then they will fulfil their duty by arranging that the school do so provide that part of the special educational provision.” The Ex parts E judgement means that part 2 of a statement should not be worded vaguely, like this: ‘Jenny has a variety of special educational needs, as revealed by her assessment’. Also, part 3 of a statement should not be written like this: ‘Jenny should receive the help appropriate to her needs’. If your child’s statement does not spell out each of her special educational needs in part 2, or if it doesn’t describe provision to meet each of those needs in part 3, you should challenge it on the grounds that it is contrary to the judgement in Ex parte E. |
The Ex parte E judgement means that part 2 of a statement should not be worded vaguely, like this: ‘Jenny has a variety of special educational needs, as revealed by her assessment’. |
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L vs Clarke and Somerset County Council (1997)See also legal advice on the duty to specify |
The parents of a boy with dyslexia appealed to the Tribunal against parts 3 and 4 of his statement. Their concern with part 3 was that it failed to set out the number of hours of help the boy should receive under the statement. The Tribunal refused to order that the statement be made more specific by the help being quantified and the parents appealed to the High Court on this point, which they considered to be an error in law. The judge ruled: “A requirement that the help to be given should be specified in the statement in terms of hours per week was not an absolute and universal precondition of the legality of a statement ... however ... 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.” |
“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.” |
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R vs Hereford and Worcester County Council, ex parte P (1992) |
This was a challenge to the arrangements made for transporting a boy with Down’s Syndrome to a special school. The parents believed that the journey would take so long that their son would arrive at school in no fit state to learn anything. The judge ruled as follows: “it is implicit in section 55(1) of the Education Act 1944 that the LEA is under a duty to make such arrangements as it considers necessary for a child to reach school without undue stress, strain or difficulty such as would prevent him from benefiting from the education the school has to offer ... it follows that where a child with special educational needs requires transport to get him to school the transport which the LEA proposes to make available must therefore be non-stressful transport … ” |
“Where a child with special educational needs requires transport to get him to school the transport which the LEA proposes to make available must therefore be non-stressful transport.” |
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R vs Surrey County Council Education Committee ex parte H (1983) |
In this case, the High Court ruled: “There is no question of Parliament having placed the local education authority under an obligation to provide a child with the best possible education ... or to educate him or her to his or her maximum potential.” This is an important judgement to bear in mind if you are arguing for a place in a specialist independent school for your child. You must not rest your case on proving how good the school is or how well it will meet your child’s needs. Both the LEA and the Tribunal may agree with you that the independent school is the best possible option for your child, but they may still decide that one of the LEA’s school can meet his needs. So, your task is to present as much evidence as you can which shows that the school the LEA is offering, or any other school it could offer, cannot meet your child’s needs as these are described in the statement. It helps if you have a full and detailed part 2. |
Your task is to present as much evidence as you can which shows that the school the LEA is offering, or any other school it could offer, cannot meet your child’s needs as described in the statement. |
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R vs Lancashire County Council ex parte M (1989) |
In this case, known as the ‘Lancashire judgement’, M had a statement which specified speech therapy provision under part 3 as ‘special educational provision’. When that provision was not made, the LEA claimed that they had made a clerical error when writing the statement and that speech therapy must always be ‘non-educational provision’ on the grounds that speech therapists are employed by health authorities. M’s parents challenged this interpretation of the law by seeking judicial review and were successful, in that the court ruled that speech therapy could be either a medical provision or an educational provision, depending on the nature of the child’s needs for the therapy; and, that the question of who employed the therapists was irrelevant to this decision. The LEA appealed against this judgement, but it was upheld by the court of appeal. The judgement included this comment, which is still the only guidance parents have as to whether their child’s needs for any kind of therapy is ‘medical’ or ‘educational’: “To teach an adult who has lost his larynx because of cancer might be considered as treatment rather than education. But to teach a child who has never been able to communicate by language, whether because of some chromosomal disorder ... or because of social cause ... seems to us just as much educational provision as to teach a child to communicate in writing.” Many LEAs still tell parents that speech therapy belongs under the heading ‘non-educational provision’ (i.e. part 6 of a statement, where no-one has a strict legal duty to provide it). They still tell parents that this is because speech therapists are employed by health authorities. However, the Lancashire judgement specifically rejected this argument. It is the child’s need for therapy which is of key importance. The main task for parents is to argue that their child’s need for speech therapy is ‘educational’ rather than ‘medical’. All you have to go on is the judge’s comment above, drawing the distinction between a need for speech therapy following surgery on your larynx (medical) and the need for speech therapy due to chromosomal disorder or social cause (educational). Obviously, under this distinction, the majority of children with special educational needs have speech therapy needs which are ‘educational’ and which therefore should be set out in part 2 of a statement. All Down’s Syndrome children, for example, have an ‘educational’, not ‘medical’, need for speech therapy, according to the distinction made in the Lancashire judgement. Many LEAs openly disregard the Lancashire judgement. Why? Because once the need for speech therapy is accepted as ‘educational’, it must be set out under part 2 of the statement as one of the child's ‘special educational needs’. And, once the need is set out under part 2, then according to ex parts E, the speech therapy provision must be specified under part 3, so that the ultimate responsibility for making the provision then rests with the LEA. They may ask the health service to provide the therapists but, if that isn’t possible, the LEA themselves must make the arrangements needed and cover the cost. The message for parents is: ‘Get your child’s need for speech therapy written into part 2, as a special educational need, and the rest should follow’. Although there is no equivalent to the Lancashire judgement covering other therapies (e.g. occupational therapy), the same argument has been used successfully by parents wanting to make their child’s occupational therapy secure. That is, by arguing that the need for occupational therapy is educational rather than medical, they get the need written into part 2 of the statement. The provision to meet that need must then be specified under part 3, which guarantees the help, as the LEA is ultimately responsible for making the ‘special educational provision’. |
The message for parents is: ‘Get your child’s need for speech therapy written into part 2, as a special educational need, and the rest should follow.’ |
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B vs Isle of Wight Council (1997) |
This is probably the only case to reach the High Court on the issue of whether physiotherapy and occupational therapy can be special educational provisions, as opposed to medical provisions. In giving his decision, the judge made the following comment: “No doubt the council were right to accept that some occupational therapy and some physiotherapy might be educational in some cases, but I cannot think this would be other than exceptional.” This is an unfortunate comment and reveals a certain lack of experience on the judge’s part, given that for a great many children with special educational needs (for example, those with cerebral palsy), therapies are central to the special educational provision. Not surprisingly, this is the part of the judgement most often quoted by LEA officers. Parents and their advisers, however, should be aware of a further comment made by the judge, which can be quoted in support of the view that these decisions can only be made on an individual basis. “All that anyone can do when judging whether a ‘provision’ is educational or ‘non-educational’ is to recognise that there is an obvious spectrum from the clearly educational (in the ordinary sense of that word) at one end to the clearly medical at the other, take all the relevant facts into account, apply common sense and do one’s best.” By putting it this way, the judge was establishing criteria for making a decision on occupational therapy and physiotherapy very similar to the criteria set out in the Lancashire judgement on speech therapy -- that is, it all depends on the nature of the needs of the individual child. |
“There is an obvious spectrum from the clearly educational (in the ordinary sense of that word) at one end to the clearly medical at the other, take all the relevant facts into account, apply common sense and do one’s best.” |
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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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Crane vs Lancashire County Council (1997) |
The parents in this case appealed to the High Court when they lost a Tribunal appeal to have their child placed in a mainstream school. The judge dismissed the appeal but, in a comment on the issue of efficient use of resources, set out how LEAs and Tribunals must address this issue in future. In summary, the judge ruled that a two-stage process was required in reaching a decision. First, an LEA or Tribunal must establish whether one alternative was in fact more expensive than another was. Then, if so, they must make the decision as to whether the additional expenditure involved in meeting the parent’s preference was justified: “... one has to look at the figures, decide whether there is an additional cost, and then do a balancing exercise weighing the additional cost against the parents’ preference ... it is partly a factual exercise and partly a balancing exercise.” |
“... One has to look at the figures, decide whether there is an additional cost, and then do a balancing exercise weighing the additional cost against the parents’ preference ... it is partly a factual exercise and partly a balancing exercise.” |
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R vs Oxfordshire County Council ex parte Pittick (1995) |
Sam Pittick attended his local his mainstream school, with a statement which provided him with 20 hours of learning support. His parents were happy with the level of support and with his placement, believing that Sam, like other children with Down’s Syndrome, could have his needs best met in a mainstream school. Then his parents heard from other parents that the LEA, Oxfordshire, was informing schools that they would, in future, have to meet the cost of the first five hours of a child’s statemented provision. It seemed to Sam’s parents that this would jeopardise his chances of being accepted by a mainstream secondary school come the time for transfer as, in doing so, the school would be also accepting responsibility for meeting the cost of five hours of his learning support. Also, Sam’s parents were unhappy at his present school having suddenly to find extra money for Sam from their special needs budget, and particularly concerned that this should not result in provision being reduced for other pupils at the school who also had special educational needs but who did not have the protection of statements. Sam’s mother, Ann Pittick, advised and supported by IPSEA, approached a solicitor in order to apply for judicial review of the LEA’s actions. It took over a year for the case to be heard. The judge ruled that it was not unlawful for the LEA to obtain agreement from a school, after a statement had been finalised, that part of the cost of the special educational provision set out on the statement should be met from the school’s own budget. The judge said.. “So far as can be gleaned from the papers, it was in about mid-1992 that the [LEA] began to explore the possibility that the school might pay out of its own budget for five hours of the ancillary support; and this was in the context of a wider initiative by which the cost of special provision being made for children with statements who were being educated in mainstream schools might, in part, be funded by the school, rather than in its entirety by the authority out of its central budget ... The [LEA’s] decision ... could, of course, only be put into effect with the concurrence of the school ... In the ordinary course of things, before the advent of the Education Reform Act 1988, it was no doubt factually inherent in the day to day administration of section 7(2) of the 1981 Education Act (which places on LEAs the duty to arrange the special educational provision set out in a statement) that the local authority would be bound to pay for the provision. Under the system of delegated budgets provided for by the Act of 1988, local authority schools ... have the power, within the limits of their budget, to decide how the money allocated to them shall be spent ... if in a particular case the school agrees to deploy some of its budget resources towards the cost of special educational provision for one of its children, there is no conceivable breach of section 7(2) ... But if ... the school were suddenly to turn round and say that they were no longer prepared to apply any part of their budget to the cost of the 20 hours extra support, it is undoubted that the [LEA] would immediately have to meet the full cost. The provision would in any event be secure.” |
LEAs can share the cost of statemented provision with schools by agreement, but must bear the whole cost if the school decides to end the arrangement . |
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R vs Cumbria County Council ex parte P (1994) |
P’s statement referred to speech therapy under part 3 but in such vague terms that his father did not have a clear idea of how much help to expect for his son. The speech therapist’s advice recommended three hours a week. P received one hour per week. The statement did seem to be specific, however, about the money that would be spent on P’s provision: ‘P’s needs entitle him to extra funding at Band Level 3. This is now £6,000 a year.’ P’s father obtained professional advice that three hours of speech therapy a week could not be obtained for the annual sum of £6,000. He concluded that the reason why his son was not receiving the therapy he needed was that the figure of £6,000 acted as a ceiling on the spending that could be made on his son’s special educational provision. He therefore sought judicial review in order to challenge the legality of the LEA’s banding policy, in that it seemed to place a fetter on the LEA’s ability to give P the provision which his needs called for. The appeal failed, but the judge’s comments on the situation provide useful guidance to other parents facing a similar problem. This is an extract from the judgement: “… the County has a policy of allocating pupils with special educational needs into various bands or categories. All but one of these of these have a cash figure against them. Pupils are categorised according to the degree of impairment as assessed by the authority into 12 categories set out in a document entitled the Cumbria Scheme for Local Management of Schools ... I am not persuaded that it is illegal. The scheme does not indicate any unwillingness by the authority to have regard to the need for securing that special education provision is made for pupils who have special educational needs … Nor does the scheme as such fetter the authority’s discretion as to what is contained in the statements of any of its statemented pupils ... I am not persuaded that the authority regarded itself in any way as being fettered by the figure of £6,000 ... There is, in my judgement, no need to specify such a figure in the statement. I am told, and can well believe, that many parents are pleased to know the amount of extra money which their offspring received compared with the generality of pupils. If in the present case nothing other than a sentence on the lines of ‘£6,000 is allocated to pay for all P’s needs’ has appeared in part 3 of the statement I would have regarded this as not complying with the requirements of specificity contained in the statute and regulations. The reason for that is that the appeal process becomes impossible to operate if the parent, and indeed the Secretary of State, does not know what the nature of the provision is which the authority intends to make. However, that is not this case ... Failure to have appropriate material in the statement and appendices: I have already touched on part of this and found room for criticism. There are other matters in respect of which there seems further such room ... I understand and sympathise with the uncertainty in which the parents found themselves following the way in which their son’s statement has been dealt with … The statement is unsatisfactory in several respects and the authority ought to produce a new statement as soon as is compatible with their duties of consultation and consideration and that the authority ought to produce it in such a form as makes it clear to P’s parents what the authority consider their son ought to receive by way of special educational provision and non-educational provision for his profound communication difficulties. Then the parents will be in a position to appeal if they wish to.” |
Bands, cash figures or positions on a matrix are not enough to satisfy the law’s requirement to specify provision in part 3 of a statement. |
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Phelps (A.P.) v. Mayor etc. of London Borough of Hillingdon, Anderton (A.P.) (By Her Mother and Next Friend) v. Clwyd County Council, In Re G (A.P.) (A Minor) (By His Next Friend), Jarvis (A.P.) v. Hampshire County Council (2000)See the fuller treatment of negligence at: |
Ms Phelps, as an adult, sued her LEA (Hillingdon) for failing to diagnose her dyslexia. The High Court judge ruled in 1997 that an educational psychologist had been negligent in failing to detect dyslexia and awarded damages. Hillingdon appealed against the judgement above and the court of appeal overturned the original ruling, on the grounds that failing to ameliorate the effects of dyslexia is not ‘an injury ’ and that the educational psychologist did not owe a duty of care directly to the child. In summary, the House of Lords reversed the decision of the Court of Appeal in Phelps and has made it more possible for individuals to bring claims for compensation. The judgement is long but it is possible to extract key principles:
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An educational psychologist had been negligent in failing to detect dyslexia. Local authorities and schools can be held vicariously liable for the negligent actions of staff members including educational psychologists, teachers, education officers etc. |
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