Independent Panel for Special Education Advice (IPSEA)	Defending children's right to special education provision
"Disabled children's rights to education upheld after High Court climb-down by Secretary of State" March 2002 Back to home page	The High Court this week found that guidance from the Secretary of State to LEAs on writing statements of special educational needs was "confusing and apt to give rise to error." IPSEA had referred the guidance (Chapter 7 of the SEN Toolkit) to the High Court via an application for judicial review on 31 December 2001, believing that it seriously misled LEAs on their legal duty to quantify in their Statement of SEN the help a child with special educational needs should receive. John Wright of IPSEA explained the charity's concerns over the wording of the Toolkit: Unless a Statement spells out exactly how much help a child should receive, there is no guarantee of any particular level of help being provided. The law, case law and the SEN Code of Practice all make clear that provision in a Statement should be quantified, unless flexibility is required to meet the changing needs of the individual child. But the Toolkit added to this in paragraph 30 by stating: "… there are times where 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." We feared that this unlawfully extended the grounds on which LEAs could refuse to quantify provision in Statements and therefore sought the Court's view on the matter. In Court, Counsel for the Secretary of State claimed that it was not her intention to add to the grounds on which an LEA could refuse to quantify provision: classroom and school arrangements would only become relevant after it was established that the individual needs of a child required their Statement to be 'flexible'. Similarly, it was claimed that the additional grounds for failing to quantify provision listed elsewhere in the Toolkit (when a child attends a special school and when the LEA cannot decide what provision is needed) only applied after it was established that the changing needs of the individual child called for flexibility. As John Wright explains, IPSEA believes this line of defence to be a significant climb-down by the Secretary State: Whilst we are delighted that the Secretary of State has disavowed the aim of allowing LEAs to refuse to quantify provision solely on the grounds that school or classroom arrangements required it, it is difficult to avoid some cynicism, given that her defence in Court rested entirely on the alice-in-wonderland argument that "or" means "and". The Judge dealt with the issue as follows: Paragraph 30 of the Toolkit specifically invites the application of flexibility when it is not to meet the changing needs of the child, but "to allow for appropriate and alternative responses from within the school to reflect particular class or school arrangements." Counsel on behalf of the Secretary of State disavowed any intention to encourage flexibility in any case where it was not required for the changing needs of the child. It was stated that the words in question should be regarded as reflecting, as a matter of policy, that there could be and should be flexibility within schools, which in turn reflected particular class or school arrangements, all of which would nevertheless meet the needs of the child but which too rigid prescription in the statement could prevent. I am bound to say that if that was the intention underlying paragraph 30, then the use of the words 'either to meet' and 'or to allow' were not necessary. Further, as drafted, it seems to me that an LEA might well be led to a conclusion that flexibility, and therefore lack of specificity and quantification, would be permissible solely on the grounds that 'class or school arrangements' called for it. For example, because resource consequences could give rise to particular class or school arrangements being altered within the year before the next review in connection with the child took place. I am bound to say … 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 of little avail. Drawing the Secretary of State's attention to his belief that the Toolkit should be rewritten, Judge Newman concluded: I regard the paragraph as confusing and apt to give rise to error. Since it does not reflect the intention of the Secretary of State it would be highly desirable for attention to be given to it so that its purpose is clear. As yet there has been no response by the Secretary of State to this judgment, but IPSEA will be writing to Estelle Morris asking for an assurance that the Judge's advice will headed and that the Toolkit will be rewritten as a matter of urgency. IPSEA was represented by David Ruebain, of Levenes Solicitors, and David Wolfe, of Matrix Chambers.

Independent Panel for Special Education Advice (IPSEA)

Defending children's right to special education provision

"Disabled children's rights to education upheld after High Court climb-down by Secretary of State"

March 2002

The High Court this week found that guidance from the Secretary of State to LEAs on writing statements of special educational needs was "confusing and apt to give rise to error."

IPSEA had referred the guidance (Chapter 7 of the SEN Toolkit) to the High Court via an application for judicial review on 31 December 2001, believing that it seriously misled LEAs on their legal duty to quantify in their Statement of SEN the help a child with special educational needs should receive.

John Wright of IPSEA explained the charity's concerns over the wording of the Toolkit:

Unless a Statement spells out exactly how much help a child should receive, there is no guarantee of any particular level of help being provided. The law, case law and the SEN Code of Practice all make clear that provision in a Statement should be quantified, unless flexibility is required to meet the changing needs of the individual child. But the Toolkit added to this in paragraph 30 by stating: "… there are times where 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."

We feared that this unlawfully extended the grounds on which LEAs could refuse to quantify provision in Statements and therefore sought the Court's view on the matter.

In Court, Counsel for the Secretary of State claimed that it was not her intention to add to the grounds on which an LEA could refuse to quantify provision: classroom and school arrangements would only become relevant after it was established that the individual needs of a child required their Statement to be 'flexible'. Similarly, it was claimed that the additional grounds for failing to quantify provision listed elsewhere in the Toolkit (when a child attends a special school and when the LEA cannot decide what provision is needed) only applied after it was established that the changing needs of the individual child called for flexibility.

As John Wright explains, IPSEA believes this line of defence to be a significant climb-down by the Secretary State:

Whilst we are delighted that the Secretary of State has disavowed the aim of allowing LEAs to refuse to quantify provision solely on the grounds that school or classroom arrangements required it, it is difficult to avoid some cynicism, given that her defence in Court rested entirely on the alice-in-wonderland argument that "or" means "and".

The Judge dealt with the issue as follows:

Paragraph 30 of the Toolkit specifically invites the application of flexibility when it is not to meet the changing needs of the child, but "to allow for appropriate and alternative responses from within the school to reflect particular class or school arrangements." Counsel on behalf of the Secretary of State disavowed any intention to encourage flexibility in any case where it was not required for the changing needs of the child. It was stated that the words in question should be regarded as reflecting, as a matter of policy, that there could be and should be flexibility within schools, which in turn reflected particular class or school arrangements, all of which would nevertheless meet the needs of the child but which too rigid prescription in the statement could prevent. I am bound to say that if that was the intention underlying paragraph 30, then the use of the words 'either to meet' and 'or to allow' were not necessary. Further, as drafted, it seems to me that an LEA might well be led to a conclusion that flexibility, and therefore lack of specificity and quantification, would be permissible solely on the grounds that 'class or school arrangements' called for it. For example, because resource consequences could give rise to particular class or school arrangements being altered within the year before the next review in connection with the child took place. I am bound to say … 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 of little avail.

Drawing the Secretary of State's attention to his belief that the Toolkit should be rewritten, Judge Newman concluded:

I regard the paragraph as confusing and apt to give rise to error. Since it does not reflect the intention of the Secretary of State it would be highly desirable for attention to be given to it so that its purpose is clear.

As yet there has been no response by the Secretary of State to this judgment, but IPSEA will be writing to Estelle Morris asking for an assurance that the Judge's advice will headed and that the Toolkit will be rewritten as a matter of urgency.

IPSEA was represented by David Ruebain, of Levenes Solicitors, and David Wolfe, of Matrix Chambers.