A v London Borough Of Southwark

B e f o r e :

THE HONOURABLE MR JUSTICE BENNETT ____________________

____________________

(Transcript of the Handed Down Judgment of Smith Bernal Wordwave Limited, 190 Fleet Street London EC4A 2AG Tel No: 020 7421 4040, Fax No: 020 7831 8838 Official Shorthand Writers to the Court)

David Wolfe (instructed by Ole Hansen and Co.) for the Claimant Julian Milford (instructed by Winckworth Sherwood) for the Defendant ____________________

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Mr Justice Bennett :

The Claimant who was born on the 1 July 1987 and is therefore nearly 17 years old, seeks an order compelling the Defendant to implement paragraph 1 of a consent order by Mr Justice Elias on 16 June 2003 made in judicial review proceedings. The terms of that order were as follows:-

The dispute in this case centres round paragraph 1 as I shall explain in due course.

The background is somewhat lengthy but I shall endeavour to summarise it concisely. The Claimant is now 16 years old and has for a number of years been a person with special educational needs. From 1994 onwards he has had a Statement of Special Educational Needs ("SSEN") maintained by the Defendant. On 6 February 2004 the Special Educational Needs Disability Tribunal ordered the Defendant to stop maintaining the Claimant's SSEN. The grounds for that decision were that the Claimant was 16, his special educational needs could be met most appropriately in a college of further education, and therefore the Defendant was not responsible for meeting the Claimant's needs.

The Claimant experiences generalised learning difficulties. His age equivalent scores for reading accuracy, reading comprehension and spelling are some 7 to 8 years behind his chronological age. His age equivalent scores for basic numbers skills are 6 to 7 years behind his chronological age. He experiences and has experienced significant difficulties with basic skills of literacy and numeracy.

In February 2002 the Claimant was attending St Joseph's College in Lewisham, a secondary school. For reasons into which it is unnecessary to go, he ceased to attend that school. In the autumn of 2002 and the spring of 2003 a number of expert reports were commissioned which made certain recommendations. These reports were obtained because the Defendant had agreed to make a statutory reassessment of the Claimant.

In April 2002 the Claimant's solicitors wrote to the Defendant that the Defendant had a legal obligation to provide suitable education for the Claimant and it was failing to meet his needs. The Claimant was no longer attending school and a request was made for a reassessment and to provide home tuition for the rest of the school term. On 13 May 2002 the Defendant wrote to the Claimant's solicitors that the request for reassessment had been referred to the SEN Manager for a decision.

It was not until 26 September 2002 that a letter was written on behalf of the Defendant agreeing to carry out a reassessment of the Claimant's special educational needs. The reassessment was put into operation and reports obtained.

On 3 January 2003 the Claimant's solicitors wrote to the Defendant's solicitors enclosing Mrs Davies' written contribution to the reassessment. Mr Wolfe, counsel for the Claimant, referred me to a passage in that statement as follows:-

On 16 January 2003 a letter written on behalf of the Defendant said that the target date for the completion of the reassessment was the 31 January with a draft statement being issued by the 31 March 2003.

On 26 March 2003 the Claimant's solicitors intimated that they were seeking permission for judicial review and enclosed the draft grounds.

On 7 April 2003 the Claimant, by his mother and litigation friend Mrs Davies, began judicial review proceedings. The orders that were sought were as follows:-

Grounds of resistance were filed by the Defendant.

On 28 May 2003 the Claimant apparently agreed to start at the Hampton and Rose Training Centre, a vocational establishment, on Monday 2 June 2003 for 4 days a week. On the Friday of each week the claimant was to attend a Brightstar programme with effect from Friday 13 June 2003. The Claimant also had an option to attend a one day a week on a course starting in September 2003 at Southwark College which could offer him basic literacy and numeracy skills. However on 30 May 2003 the Claimant's solicitors made it clear that in the long term Hampton and Rose Training Centre, which did not follow a compulsory National Curriculum, was not an appropriate education and did not meet the recommendation of the Claimant's educational psychologist. The Claimant's solicitors also sought an explanation why the Defendant could not pay for a tutor to teach numeracy and literacy at home for the current term.

On 13 June 2003 the Defendant's solicitors wrote an important letter to the Claimant's solicitors. On the same day the Defendant produced the SSEN in respect of the Claimant. The letter made it clear that the Defendant had considered Mrs Davies' comments "and has today issued a final statement for A." For the remainder of the term A was to have access to at least 6 hours literacy and numeracy tuition per week at Hampton and Rose from a qualified tutor. From 1 July 2003 onwards the Claimant was to have access to the Life Skills/Entering to employment programme that would consist of a number of matters and in particular:-

The letter continued:-

The SSEN is to be found at page 77 of the bundle. The Claimant's special educational needs were graphically and accurately described under Part 2. Part 3 set out the special educational provision as follows:-

This, then, is the background leading up to the order made by Elias J. on 16 June 2003. On 18 September 2003 the Claimant brought new judicial review proceedings. A mandatory order was sought to require the Defendant to provide special education in accordance with (a) the SSEN of 13 June, and (b) the agreement made on 16 June namely to provide 5 hours each week with individual teaching support as per paragraph 1. It was alleged that the Defendant had failed to deliver the service as promised in a number of particulars set out in pages 14 and 15 of the bundle, but in particular that individualised numeracy and literacy sessions had not taken place.

On 10 October 2003 a letter was written on behalf of the Defendant to the Claimant's mother as follows:-

The mother, as she was entitled to do so, appealed against the decision set out in the letter of 10 October 2003 to the Tribunal. The Tribunal heard the parties on 27 November 2003 and 23 January 2004 and gave its decision in writing on 6 February 2004. Meanwhile Elias J., on 17 December 2003, had given the Claimant permission in the judicial review proceedings yet urged the parties to go to mediation.

The Tribunal's reasons are to be found at page 123 of the bundle. The Claimant became 16 on 1 July 2003. He had been removed from the roll of his last school, namely St Joseph, on 7 June 2002, and was during the summer of 2003 attending Hampton and Rose Training Centre. It noted that the SSEN provided that the Defendant would fund the attendance at Hampton and Rose till the end of the summer term and thereafter his education would be funded by the Learning Skills Council with effect from the 1 July 2003.

The Claimant's case in front of the Tribunal was that the Claimant needed full time education covering numeracy and literacy if he was ever to be able to achieve his ambition of training to be a plumber. His mother further believed that the Claimant would attend college 5 days a week for literacy and numeracy and would consider attending a Sixth Form. It was noted that the Defendant thought that basic numeracy and literacy courses were not available in local Sixth Form forms attached to schools.

The conclusions of the Tribunal were as follows:-

Order

The LEA shall cease to maintain a Statement of Special Educational Needs."

Following the Tribunal's decision, on 10 February 2004 the defendant wrote to the Claimant's solicitors that it was ceasing to maintain the SSEN and suggested that the judicial review proceedings should be withdrawn. The Claimant's solicitors subsequently suggested that the Claimant would be appealing to the High Court from the Tribunal. However no appeal was ever pursued. On 30 March 2004 the Claimant notified the Defendant that the Claimant was proceeding with the judicial review proceedings in that the Defendant had failed to abide by the consent order of 16 June.

It is common ground between the parties that the Defendant has not provided the 5 hours each week of individual teaching support as per paragraph 1 of the order of 16 June.

The Claimant's case, put shortly, is that the duty of the Defendant to arrange the provision in the SSEN dropped away as a result of the Tribunal ordering the Defendant to cease to maintain the SSEN. However that does not bring an end to the Defendant's obligations or the Claimant's claim in relation to the order of 16 June 2003. It is submitted that paragraph 1 is free-standing from the SSEN and was never expressed to be dependant on it. Thus the fact that the SSEN may have ceased to have existed does not absolve the Defendant of complying with the order in paragraph 1. Further, as a matter of construction paragraph 1 is independent of the SSEN.

It is the Defendant's contention, as advanced by Mr Milford on its behalf, that upon a proper construction of the order of 16 June the only possible conclusion is that the duties in the consent order exist only so long as the Claimant's SSEN was maintained by the Defendant. The Tribunal had ordered the Defendant to cease to maintain the Statement. Accordingly the obligations in the consent order fell away.

It is common ground between Mr Wolfe and Mr Milford that I should construe the agreement contained in the consent order by ascertaining the common intentions of the parties, applying the principles enumerated by Lord Hoffman in Investors Compensation Scheme Limited v West Bromwich Building Society [1998] 1 WLR 896, at 912H to 913E:-

The Claimant's submissions

Mr Wolfe submitted that for a proper understanding of the agreement/order of 16 June 2003 it is necessary to look at the statutory framework in the Education Act, 1996. Section 8 defines compulsory school age between 5 years old and "at the end of the day which is the school leaving date for any calendar year (a) if he attains the age of 16 after that date but before the beginning of the school year next following." There is no dispute that the Claimant ceased to be of compulsory school age on 27 June 2003.

Section 19(1) provides:-

Section 19(4) provides:-

Young person is defined by section 579 as:-

Section 321 provides:-

Section 324 lays upon a local education authority a duty to make and maintain a Statement of a child's special educational needs if, following an assessment under section 323 of the child's education needs and any representation by the child's parent, it is necessary for the local education authority to determine the special educational provision. Subsections (2), (3) and (4) are concerned with the content of the Statement. Subsection (5) provides for the authority to carry out the special education provision in the Statement and arrange any non-educational provision specified in the Statement. Section 326 provides for appeals against the Statement. Schedule 27, paragraphs 9 and 11 provide as follows:-

It is therefore submitted that on 27 June 2003 the Defendant ceased to maintain a Statement as the compulsory school age limit was then reached and because the Claimant had not been on the school roll since June 2002. I was referred to a passage in the judgment of Collins J. in Wakefield Metropolitan District Council v Evans [2001] EWHC Admin 508, in particular paragraph 26 and 27 where he said:-

At paragraph 28 he said:-

Thus, it is submitted that the SSEN was to "self-destruct" (Mr Wolfe's words) on 27 June. Section 19(4) gave the Defendant the power to make provision for the Claimant as a young person until 18 years of age. Paragraph 1 of the agreement/order was not intended to come to an end on 27 June. On a proper construction it is free standing and independent of the SSEN. It survived the coming to an end of the SSEN on 27 June. A further passage in the judgment of Collins J. in Evans is prayed in aid at paragraph 25. It is thus said that the Claimant had a legitimate expectation that paragraph 1 would be implemented irrespectively of the continuation or demise of the SSEN.

The Defendant's submissions

Mr Milford submitted that since on the plain wording of paragraphs 2 and 3 of the agreement those paragraphs are expressly referable to the SSEN the Defendant is no longer bound by them because of the Tribunal's decision. Mr Wolfe does not dispute that. Mr Milford further submitted that the reference in paragraph 2 to "the specialist assistance" must be a reference to the assistance specified in paragraph 1. Since paragraph 2 expressly refers to the SSEN "the specialist assistance" is referable only to paragraph 1.

Looking at the matter in the general context, the way in which local education authorities provide specialist assistance to pupils with special educational needs is by putting in place funding to ensure such assistance is delivered. Provision cannot sensibly be separated from the obligation to fund.

In the more particular context, the consent order was the product of a claim by the Claimant to enforce the Defendant's statutory duties to him under the 1996 Act. It would be very surprising, therefore, if, as a result of compromising the action, the Defendant had agreed to make provision for the Claimant more onerous than, and/or separate from, that required by the 1996 Act, at the very least in the absence of express words indicating that was its intention. When a comparison is made between the terms of the SSEN and the consent order the latter mirrors the former. The only difference is that the SSEN indicates how the Defendant will make provision i.e. by providing resources costed at Band C. The effect of the SSEN and the consent order is exactly the same. Thus the consent order was a means of ensuring that the Defendant complied with its duty under the SSEN. All that the court had power to order was for a) the Defendant to provide a SSEN (which it did) and b) to carry out what was in the SSEN. There was no power for the court to order the Defendant to carry out any act outside its duties encompassed under the SSEN. If the Claimant did not agree with the content of the SSEN his remedy was to appeal to the Tribunal, which his mother did on his behalf.

Mr Milford challenged the proposition that the statement "self-destructed" on 27 June 2003. Under Schedule 27 the Defendant was able to treat the SSEN as being maintained unless and until it determined to cease to maintain it or until so ordered by the Tribunal. That is what the Defendant did. On 10 October it determined to cease to maintain it, but because of the appeal the statement was maintained until the decision of the Tribunal in February 2004.

Section 19(4) did not give the Defendant the power claimed for it by Mr Wolfe. In G v Westminster City Council [2004] EWCA Civ 45 the Court of Appeal was concerned with section 19, and in particular s. 19(1). At paragraph 42 Lord Phillips M.R. giving the judgment of the Court said:-

In my judgment this claim for judicial review fails. The judicial proceedings initiated in April 2003 were concerned with the provisions of the SSEN. They were a means to force the Defendant to produce one and to produce one whose content would be favourable to the contentions of the Claimant namely to receive his education in a school. The Defendant formed the view that the Claimant should be educated in a college of further education for the reasons it gave to the Tribunal. The Tribunal carefully assessed the merits of the SSEN. It found, with its specialist knowledge, and upon the evidence, that there was no school placement suitable for the Claimant and that the Claimant's needs (of which it was abundantly aware) should be met (and appropriately so) in a further education setting. It therefore ordered the Defendant to cease to maintain the SSEN. The Defendant's duties in that regard thereupon ceased.

At all times the Claimant was advised by counsel and solicitors. In my judgment the agreement of 16 June 2003 was reached upon the basis of the SSEN, it having by then been made by the Defendant. The Defendant had therefore complied with its statutory duty i.e. to make the SSEN. There was nothing further for the court to order in that respect. However the Claimant, I suspect, was apprehensive about the Defendant carrying out that which it said it would, namely to provide additional resources equivalent to 5 hours support per week "focusing on the acquisition of basic literary and numeracy skills" (see page 79). The Claimant wanted that part of the SSEN actually recorded in the Consent Order so that it could be enforced under a Court Order and not by way of further judicial review proceedings on the SSEN.

I do not accept that either of the parties believed that the SSEN would "self-destruct" on 27 June 2003. I consider each believed it would continue until the Defendant determined to cease to maintain it or until the Tribunal resolved the appeal. (Indeed that is exactly how the parties thereafter acted.) If the statement was to "self-destruct" on 27 June, what, I ask rhetorically, was the point of the ICT provision being in place by 26 June i.e. for 1 day?

I accept Mr Milford's submission that "the specialist assistance" in paragraph 2 is a reference to paragraph 1. Paragraph 1 was lifted straight out of the SSEN for the purposes of enforcement by order rather than by further judicial review proceedings. Further, I would have expected that if both parties had intended paragraph 1 to be independent of the existence or demise of the SSEN suitable words would have been incorporated making that clear. They were not.

That, in my judgment, is sufficient to dispose of this claim. For completeness sake, I consider that Mr Milford's submission on s.19(4) are correct. However, even if Mr Wolfe may be right, I do not accept that in looking at the agreement as a whole the Defendant could be said to have been acting under the power in s.19(4) when it concluded the agreement. Nor do I think it necessary to decide whether, as a matter of law, the SSEN did "self-destruct" on 27 June. The parties intended, on 16 June, that it should continue until the Defendant determined to cease to maintain it or any appeal therefrom.

MR JUSTICE BENNETT: I hand down the judgment in the case of A v the London Borough of Southwark.

I make the following order, which has been agreed by counsel:

Nothing should be published which could lead to the identification of the claimant;

The application for judicial review is dismissed;

The claimant is to pay the defendant's costs on the usual LSC funded basis; and

The claimant's costs to be assessed pursuant to the Community Legal Service (Costs) Regulations.