B, R (on the application of) v Metropolitan Borough Of Wirral & Anor [2000] EWCA Civ 262 (19 October 2000)

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION (MR JUSTICE MAURICE KAY)
Royal Courts of Justice
Strand, London, WC2A 2LL
Date: 19th October 2000

B e f o r e :
LORD JUSTICE POTTER
LORD JUSTICE MAY
and
LORD JUSTICE TUCKEY
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THE CROWN
– and –
(1) METROPOLITAN BOROUGH OF WIRRAL
(2) GOVERNORS OF ELLERAY PARK SCHOOL
ex parte
`B’

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(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)
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Richard Clayton Esquire (instructed by PG Manson, Solicitor for the Metropolitan Borough of Wirral)
Nicholas Bowen Esquire (instructed by Rust, Moss & Co, Lancashire for the appellant)

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Judgment
As Approved by the Court
Crown Copyright ©

POTTER LJ:
INTRODUCTION
1. This is an appeal from the judgment and order of Maurice Kay J dated 17th February 2000 whereby he refused an application for judicial review on behalf of B, a child of eight, by her father and next friend. The grounds of complaint were the alleged failure of the Metropolitan Borough of Wirral as a Local Education Authority (“the LEA”) to comply with the order of a Special Educational Needs Tribunal (“the Tribunal”) issued on 2nd December 1998, following which the LEA subsequently produced a statement of Special Educational Needs which did not reflect the precise wording of the order of the Tribunal. The relief sought was inter alia (1) a declaration that the LEA have been in continuing breach of their statutory duty pursuant to section 324(5)(a)(i) of the Education Act 1996 (`the 1996 Act’) in failing to comply with the Tribunal order; (2) an order of Mandamus compelling the LEA to comply with the decision of the Tribunal; (3) a declaration that the governing body of Elleray Park School are in breach of s.317(1)(a) of the 1996 Act. The substance of the complaint is that the order of the Tribunal, properly read, and the terms of the statement subsequently produced, require that the LEA provide one-to-one teacher support to B. throughout every hour of every day that she is present at Elleray Park School and that such support has not subsequently been supplied to B. The LEA, on the other hand, contend that the order of the Tribunal was, and plainly contemplated, that such one-to-one support should be “available” to B. from a suitably experienced assistant or assistants, but that the LEA is not in breach of duty if it does not provide at all times to B. the exclusive and dedicated support of a single assistant. The LEA contends that the statement relied on by the appellant was produced in error and that the LEA are not under a duty to make provision for B’s special needs other than in accordance with the order of the Tribunal. The judge found in favour of the LEA in respect of both contentions.
THE HISTORY OF THE PROCEEDINGS
2. B. has severe athetoid cerebral palsy arising from the circumstances of her birth. She is a child who has special educational needs within the meaning of Part IV of the 1996 Act. Her schooling has at all material times been at Elleray Park School, a special primary school for children with complex learning difficulties. She has been the subject of successive assessments and statements of special educational needs since February 1994. For some years her parents have sought to persuade the LEA that her needs are such that she requires a full time, one-to-one, support assistant at school, that is to say a support assistant exclusively assigned or dedicated to her.
3. In 1996 The LEA agreed to provide B. with ten hours of individual support and issued a final statement to that effect. Although this fell short of what her parents were seeking they did not exercise their right to appeal to the Tribunal under s.326 of the 1996 Act. On 10th July 1998, the LEA, following a review of B’s needs, issued an amended statement of special educational needs which included the following:
“B. needs access to individual support throughout the week to support a programme devised to specifically focus on her communication, computer skills and ability needs. The LEA will support this programme by the addition of 12½ hours individual support from a welfare assistant. Whilst the school would ensure that at relevant times appropriate support is available from its delegated budget …”
B’s parents were not satisfied that the provision specified was sufficient and appealed to the Tribunal, not only upon the issue as to full-time dedicated support, but also on an issue as to the amount of specialist therapy that B. should receive.
4. On the day of the hearing before the Tribunal, agreement was reached between Mr Moss, the solicitor representing the parents and Miss Royle, a General Inspector representing the LEA upon the wording of the provision to be made. The agreement was explained to the Tribunal and resulted in the Tribunal making a decision dated 19th November 1998, formally issued on 2nd December 1998, ordering the LEA to make various amendments and which provided in relation to the paragraph of the statement quoted above:
“Amend existing paragraph … by deleting the existing first sentence and inserting the following in its stead:
`One-to-one support to be available to B. for every hour of every day that she is in school, such provision to be made by a suitably experienced assistant or assistants’.
In the second sentence … the wording is amended by deleting the words `the relevant’ which are replaced by the words `all other’. In addition the following words are deleted: `from its delegated budget’.”
There is no dispute that the wording promulgated by the Tribunal reflects the wording which the parties finally agreed. The principal issue between the parties has been what those words mean or were intended to mean when agreed.

5. The decision of the Tribunal was in the form of an order requiring the LEA to amend the statement in the manner specified in accordance with section 326(3)(b) of the 1996 Act. In January 1999 the LEA sent to B’s parents an amended statement signed by Miss Royle which, unhappily, did not reflect the decision of the Tribunal as worded above in relation to the first sentence. The amended version of the first sentence read:

B. needs one-to-one support for every hour of every day that she is in school, such provision to be made by a suitably experienced assistant or assistants.” (emphasis added)
The circumstances in which the amended statement was issued and sent to B’s parents were as follows.
6. On 8th January 1999 the appellant’s solicitors wrote to the LEA complaining that no amended statement had yet been issued to reflect the Tribunal order. According to Miss Royle, by the administrative error of an unnamed clerk, an amended version of the statement was produced which read as quoted in paragraph 5 above. This did not accurately reflect the order of the Tribunal. Instead, on the same day, Miss Royle signed an amended statement in which the first sentence read:
“One-to-one support to be available to B. for every hour of every day that she is in school, such provision to be made by a suitably experienced assistant or assistants.” (emphasis added)
This version replicated the order of the Tribunal (see paragraph 4 above). It was placed on the LEA file as the relevant working document, and has since been treated by the LEA as the statement made and maintained by it under s.324(1) of the 1966 Act.

7. Unfortunately, by further error, the inaccurately amended statement (see paragraph 5 above) was also sent to the appellant’s solicitor together with an explanation as follows:

“B’s Statement was modified on December 11th 1998 in accordance with the directions of the SEN Tribunal. A copy of the amended Statement is on our database. Unfortunately an administrative error resulted in the non-amended version of the Statement being sent to Mr and Mrs B.. I apologise unreservedly for this mistake. There was no intention on the part of the Authority to refuse to comply with the Tribunal direction. I have sent a copy now to Mr and Mrs B. apologising and enclose a copy of the correct Statement for your information.”
8. On 24th February 1999, following supply of a timetable concerning B’s care, B’s solicitors wrote asserting that the LEA was in breach of its statutory duty in that it had failed to comply with the Tribunal’s order, inter alia because one-to-one support was not being provided at all times. It asked for:
“Specific details of the support and who is present at the time, particularly in relation to one-to-one support, specific details for every hour of every day that B. is in school as to who is providing that dedicated one-to-one support for her.”
9. On 2nd March 1999 the LEA replied:
“The purpose of providing a copy of the timetable was to show the level of support which B. receives since it should be clear from the initials on the timetable who is supporting B. throughout the day. There is no point in the day when support is not available … .
With regard to the one-to-one support, I would again draw your attention to the timetable. Since staff are entitled to breaks at lunch it is impossible to have the same names responsible for B. all day. Moreover, there are times when more than one person is assigned to her, not in order to abdicate responsibility but because the school recognise, for example – that one person alone cannot toilet B.. For areas involving toileting, breaks etc there will always be a number of staff responsible and the personnel may change in mid-activity. Children who are wheelchair dependent and who cannot propel themselves must have someone with them to access playtime. During the hydropool activity there are never more than two children in the pool (size determines this) and two adults are always present.
In class activities it is recognised that B. is unable to spontaneously respond to any physical demands and that sometimes she will not want to respond to questions without prompting. At these times it would be the responsibility of the NNEB in the class to ensure that B. participates. At other times B’s teacher may be working on a one-to-one activity with her will be addressing the whole class e.g. during Literacy and Numeracy Hour. It is educationally unsound to assign one person to work with one child all day; that is not to say however that the individual support does not happen or is not available. You will have noted on the timetable that support staff have been nominated but if that person is unavailable for any reason the school must be able to change the personnel.”
10. On 5th March 1999, B’s solicitors replied:
“In relation to the 1-to-1 support, Mr and Mrs B. readily recognise that this support cannot be provided by the same individual throughout B’s time in school. This, of course, would be a nonsense. However, Mr and Mrs B. do require confirmation from your Authority that for every hour of every day that B. is in school, she is receiving exclusive one-to-one support, since Mr and Mrs B’s concern is that at varying times in the day, B. will be receiving support from an assistant/teacher, who at the same time is also responsible for the support of other children. Accordingly, confirmation is sought from your authority that at all times the support to B. is provided exclusively for B. and that the individual responsible at any given hour of a day is giving that support exclusively to B. and having no responsibility whatsoever at the time for any other child.”
11. The LEA replied that the Tribunal order did not use the word “exclusively” and stated:
“… I would suggest that had you intended this to be the case you would have requested this as part of the SENT hearing. The wording is, I recall, precisely as you demanded and we agreed. One-to-one support is available for every hour of every day that B. is in school and as such the Statement is complied with”.
12. Having received that letter and taken further advice, the appellants did not issue proceedings but waited until the new academic school year in September 1999 to see if exclusive one-to-one provision were put in place. Being of the view that it was not and that, in practice, B. only received dedicated one-to-one support for twelve and a half-hours each week (as set out in her solicitor’s letter of 5th October 1999), proceedings were threatened.
13. Meanwhile, on 22nd October 1999, the LEA (under Miss Royle’s reference) wrote:
“… my comments are … based on the copy of the timetable attached which Mr and Mrs B. have already seen.
1. You will note that there is a named member of staff with responsibility for B. at all times of the day. It was in my view quite clear at the Tribunal that one-to-one support should be available to B. and that this was the wording which you dictated to the Chair of the Tribunal and which the members agreed.”
14. Having set out the specific provision which would be made for particular types of speech and language therapy, the letter ended:
“Mr and Mrs B. should be assured that all the professionals involved with B. are aware of her difficulties and believe that they work together to ensure that her needs are met on a daily basis.”
THE JUDGMENT OF MAURICE KAY J
15. In the witness statements before the judge there was no difference upon the wording of the Tribunal’s order which the parties had agreed. The appellant’s solicitor, Felix Moss, stated:
“7. …. I took the view that the wording which Miss Royle and her witnesses were prepared to agree and was set out at sub-paragraph (b) of the tribunal order was sufficient to establish the principle that B. had a need for one-one support for every hour of every day that she was in school.
8. The agreement was reached following a conversation with Miss Royle prior to the case being called on for hearing. We agreed, not in the presence of the head or deputy-head, the wording which was subsequently incorporated into the order and thereafter the amended statement. Miss Royle was happy to agree the formula “one-one support to be available to B. for every hour of every day that she is in school such provision to be made by a suitably experienced assistant or assistants”.
No issue at all was raised as to the meaning or impact of those words which I thought, and still think, were clear and unambiguous.
9. I was content with that amendment and told Miss Royle that nothing else was necessary.”
He went on to state that it was Miss Royle, rather than himself who went on to require inclusion of a further sub-paragraph (b) to paragraph 6 to the effect that:
“The LEA will support this programme by the addition of 12½ hours individual support from a welfare assistant whilst the school would ensure that at all other times appropriate support is available.”
He said that Miss Royle explained that, unless such provision was included, the school would avoid its obligation to make the provision for B. for the rest of the week.
16. Miss Royle took no issue as to the wording agreed, but did not accept the way in which Mr Moss alleged paragraph 6(b) was included. She stated:
“I did not, to my recollection, discuss how the wording might be interpreted and, in particular, did not make the remarks alleged in paragraph 9 of Mr Moss’ affidavit. At no point was the issue of exclusivity discussed.
17. There was also a dispute between Mr Moss and Miss Royle as to what happened before the Tribunal, when the matter came before it following the agreement reached. Mr Moss stated that when the Tribunal were told by him, and Miss Royle confirmed, the wording of the agreement reached, there were interventions by the potential witnesses who accompanied her (the head-teacher and his deputy) to the effect that they were not in agreement with either the amendment on therapy or on welfare, support, saying that they did not dispute the need for such provision but that their budgets were overstretched and they could not afford to provide such a high level of assistance and support. He said that Miss Royle nonetheless emphasised that she had the authority as the representative of the LEA to enter into the agreement. Miss Royle, on the other hand, denied the events described. In his statement, B’s father supported the account of Mr Moss, while Mr Quaife, the headteacher of Elleray Park School supported Miss Royle.
18. In the light of this conflict, Mr Bowen, who appeared for the appellant, invited the judge to hear oral evidence as to what went on before the Tribunal and as to what was in the minds of the parties as to the extent of their obligations pursuant to the wording agreed. The judge declined to do so, he said:
“I have already referred to a factual dispute about who said what and to whom at the Tribunal. There is also a dispute about the provenance of the two statements and, in addition, I am invited to draw inferences from subsequent correspondence as to what the LEA thought at the time about the parameters of its obligations. On behalf of B, Mr Bowen invited me to hear oral evidence from those who dispute what went on at the Tribunal but I declined to do so. No order had been sought prior to the hearing and, in any event, as there is no dispute between the parties as to what wording was agreed between Mr Moss and Miss Royle (and which was accurately reflected in the decision of the Tribunal), there was nothing to be gained in conducting an investigation into what any of those present may have said about the agreement or its interpretation. I see no need to go outside what the Tribunal decided and what “the statement” provides. I shall therefore consider, first, the issue as to which is the appropriate statement and, secondly, the construction of the appropriate statement.”

19. The judge then turned to deal with the question of identifying the form of statement under the terms of which B. was entitled to have her needs provided i.e. was it that retained and acted upon by the LEA or the one said to have been sent in error to B’s parents. Having criticised the efficiency of the LEA in making and circulating a statement which did not reflect the decision of the Tribunal, he said he had no doubt that a mistake was made, accepting the explanation of Miss Royle in that respect. That being so, he held that the appropriate statement was `the one which faithfully replicates the wording of the Tribunal decision’ i.e. that retained and relied on by the LEA. He rejected the submission of Mr Bowen that the statement circulated in error gave rise to a statutory duty to make provision for B. in accordance with it. In this respect he stated:

“Now, once the tribunal has ordered the authority to amend a statement pursuant to section 326(3)(b), it is not open to the authority to amend it in a manner at variance with a decision of the Tribunal. The idea that there may be a statutory duty to give effect to a statement which is at variance with a decision of a Tribunal which the authority has a statutory duty to implement is absurd. In my judgment, Ex Parte M [i.e. R -v- Lancashire County Council, Ex Parte M] [1989] FLR 279 does not avail the Applicant in the present case, having regard in particular to the changed statutory framework and the establishment of the Tribunal.”

20. The judge went on to state that, if he was wrong that the relevant statement was the statement retained and relied upon by the LEA, then, being satisfied that the document sent to B’s parents was sent as a result of a genuine mistake, he would have exercised his discretion against granting relief based on an erroneous document.

21. He went on to treat the issue, in the result, as one of construction, asking whether the words of the relevant statement entitled B. to dedicated exclusivity on the part of an assistant or assistants. He said:

“In my judgment, they do not. I agree with the submission of Mr Clayton [who appeared for the LEA] that the inclusion of the word `available’ was very significant. I cannot accept Mr Bowen’s submission to the effect that `to be available to’ means no more than `in relation to’. It follows that the LEA complies with its statutory duty if, for every hour of every day that B. is in school, one-one support is available to B.. Such support does not require any assistants to be deployed on the basis of dedicated exclusivity.”

Having recorded that a second ground of challenge contained in the application for judicial review, which concerned the provision of specialist therapy, had been resolved and was not pursued, the judge dismissed the application.
THE RELEVANT STATUTORY PROVISIONS
22. S.317 of the 1966 Act provides that:
“(1) The governing body, in the case of a county, voluntary or grant-maintained school, and the local education authority, in the case of a maintained nursery school, shall-
(a) use their best endeavours, in exercising their functions in relation to the school, to secure that, if any registered pupil has special educational needs, the special educational provision which his learning difficulty calls for is made …..”
23. S. 324 (Statement of Special Educational Needs) provides:
“(1) If, in the light of an assessment under section 323 of any child’s educational needs and of any representations made by the child’s parent in pursuance of Schedule 27, it is necessary for the local educational authority to determine the special educational provision which any learning difficulty he may have calls for, the authority shall make and maintain a statement of his special educational needs ….
(3) In particular, the statement shall –
(a) give details of the authority’s assessment of the child’s special educational needs and
(b) specify the special educational provision to be made for the purpose of meeting those needs, including the particulars required by subsection (4) …
(5) Where a local education authority maintains a statement under this section, then –
(a) unless the child’s parent has made suitable arrangements, the authority –
(i) shall arrange that the special educational provision specified in the statement is made for the child ….
(7) Schedule 27 has effect in relation to the making and maintenance of statements under this section.”
24. S.326 (Appeal against contents of statement) provides:
(1) the parent of a child for whom a local education authority maintain a statement under section 324 may ….
(b) where the description in the statement of the authority’s assessment of the child’s special educational needs, or the special educational provisions specified in the statement, is amended …”
Appeal to the Tribunal against the description in the statement of the authority’s assessment of the child’s special educational needs [and] the special educational provision specified in the statement ….
(3) On an appeal under this section, the Tribunal may …
(b) order the authority to amend the statement, so far as it describes the authority’s assessment of the child’s special educational needs or specifies the special educational provision, and make such other consequential amendments to the statement as the Tribunal think fit …
(5) Before determining any appeal under this section the Tribunal may, with the agreement of the parties, correct any deficiency in the statement.”
25. Schedule 27 concerns the `Making and Maintenance of Statements under Section 324‘ under the heading `Procedure for Amending or Ceasing to Maintain a Statement’, paragraphs 9 and 10 provide as follows:
“9(.1) A local education authority may not amend, or cease to maintain, a statement except in accordance with paragraph 10 or 11 ….
10(1) Before amending a statement, a local education authority shall serve on the parent of the child concerned a notice informing him –
(a) of their proposal, and
(b) of his right to make representations under sub-paragraph (2).
(2) A parent on whom a notice has been served under sub-paragraph (1) may, within the period of fifteen days beginning with the date on which the notice is served, make representations to the local authority about their proposal.
(3) the local education authority –
(a) shall consider any representations made under sub-paragraph (2), and
(b) on taking a decision on the proposal to which the representation relate, shall give notice in writing to the parent of their decision.
(4) Where a local education authority make an amendment under this paragraph to the description in a statement of the authority’s assessment of the child’s special educational needs or to the special educational provisions specified in a statement, they shall give notice in writing to the parent of his right under section 326(1) to appeal against –
(a) the description in the statement of authority’s assessment of the child’s special educational needs,
(b) the special educational provisions specified in the statement …”
THE ISSUES

26. The issues argued on this appeal may be summarised as follows:-:

(1) whether the judge was right to determine that the relevant statement of special needs was that which followed the wording of the tribunal order, or whether it was the statement sent in error to B’s parents.
(2) if the former, was he correct in holding that the word `available’ did not impose an obligation on the authority to provide dedicated exclusive support for B. at all times;
(3) if the latter, did the judge err in holding that he would as a matter of discretion refuse to grant relief on the basis that the statement had been issued in error.

27. There is a further issue which, while on the face of it a preliminary issue, is one which the appellant submits impinged throughout upon the issues which the judge had to decide, namely whether the amended statement sent to B’s parents was indeed a genuine administrative mistake or whether it was one deliberately drawn to reflect the common understanding of the parties as to B’s needs and the obligations of the LEA, as to which the judge rejected Mr Bowen’s belated application for the attendance and examination of witnesses.

ORAL EVIDENCE

28. I shall deal with that further issue first, because it is one which was raised before the judge at the outset of the proceedings, affecting as it did the mode of trial to be adopted before him and whether or not an adjournment was required.

29. I have no doubt that the judge was right in the conclusion to which he came. First, and it seems to me this is important, the terms of the application for permission to move for Judicial Review were specifically in respect of the continuing failure of the LEA `to comply with the order of the Special Educational Needs Tribunal issued on 2nd December 1998 contrary to its statutory duty pursuant to … [Section 324(5)(a)(i)] .. Education Act 1996‘. The relief sought was a declaration that the LEA had failed to implement the Tribunal’s decision and an order requiring them to do so. Thus the position before the judge was that the right to relief was not put directly upon the form or wording of the amended form of statement sent to B’s parents which, as the matter developed, was treated not as affording a ground for relief in itself, but as an indication of what the parties may or may not have believed to be the meaning of the Tribunal’s order. The parties were not at odds that the essential task of the court was to determine the requirements imposed by the order of the Tribunal. That was a matter of construction.
30. Given the parties’ common ground as to the wording agreed between them and that, in that connection, the question of exclusive dedication was not discussed between them, the factual dispute about what occurred before the Tribunal and how far the Head and Deputy Head expressed dissent at the terms of the order could not assist directly as to the intention and understanding of Mr Moss and Miss Royle who (as the representatives of the parties) agreed the wording of the order. It was no doubt hoped by Mr Bowen that, having secured the calling of witnesses, he would have been able to cross-examine Miss Royle as to the genuineness of the mistake in her office by a clerical assistant. However, no substantial grounds existed to query the bona fides of Miss Royle. It is unusual for oral evidence to be taken in a case of this kind and, if it is to be ordered in relation to the bona fides of a witness, some substantial ground should normally be demonstrated to justify departure from the usual procedure. As the judge stated, Miss Royle must, on any view, have known that the amended statement should reflect the decision of the Tribunal and therefore the failure of the copy sent to B’s parents to do so was a clear prima facie indication that a mistake had indeed been made. Accordingly, for the reasons stated by the judge in the passage first quoted from his judgment at paragraph 18 above, I do not consider that he was in error in reaching the decision based on the evidence before him, even though a degree of conflict existed. Nor, despite Mr Bowen’s submission to this court, do I consider that any grounds have been made out for ordering a re-hearing on the basis that the evidence should be tested orally.
WHICH WAS THE RELEVANT STATEMENT?
31. The relevant statutory duties arising under the scheme in Part IV of the Act are as follows. S.317(1)(a), in respect of which the appellant seeks a declaration that the Governors of Elleray Park School are in breach of statutory duty, sets out the general duty of the governors (inter alia) to use their best endeavours to secure the special educational provision required to meet B’s special educational needs. The substance of the duty in any individual case depends in turn upon the LEA’s assessment of those needs under s.323 of the Act and the defining of those needs in a statement of special educational needs (“a Statement) which the authority has a duty to `make and maintain’ under s.324 in a form which contains, in particular, the matters set out in sub-sections (3) and (4). Whereas s.324 refers to the duty of the LEA to make and maintain a Statement, it does not refer to or deal with the power (or duty) of the LEA to amend such Statement once made. That power is assumed by the provisions of s.326(1)(b), which provide for the right of appeal to the Tribunal by the parent of a child in respect of whom the description of the special needs or the special educational provision specified is amended, and in s.326(3) which provides that the Tribunal may order amendment of the Statement. It is inherent in the terms of s.326 that proposing and making amendments (no doubt as the result of a system of review from time to time within the LEA concerned) is part of the LEA’s requirement and function to `maintain’ the Statement once made: see the language of sections 324(1) and 326(1) and the provision in s.324(7) that Schedule 27 has effect in relation to the making and maintaining of Statements. Paragraphs 9-11 of Schedule 27 provide the `Procedure for amending or ceasing to maintain a Statement’.

32. The resort by B’s parents to the Tribunal was an exercise of their right to appeal against the LEA’s amendment of July 1998 which was an amendment to the Statement already maintained by the LEA in respect of B. It would appear that such amendment was made as required in the ordinary way by the LEA, on notice to B’s parents, following the procedure laid down in paras 10 and 11 of Schedule 27. In the event the amendment was ordered to be made by the Tribunal in the altered form agreed between the parties. Thus, at that point, so far as the statutory scheme was concerned, the assessment of need and/or the special educational provision to be made in respect of B were determined in terms of the amendment ordered to be made for the purposes of defining the duty of the LEA (a) to make and maintain a Statement under s.324 and (b) to make provision for B’s needs, subject to such reassessment of those needs as might in future prove appropriate. No doubt that is why, when the matter was argued before the judge, the substance of the matter was treated as the ascertainment and construction of the true meaning of the Tribunal’s order in order to determine whether or not the LEA and the governors were in breach of their statutory duty, it being recognised that unless the LEA were estopped in some way from asserting that their duty was limited to the needs provided for in the Tribunal order, the applicant could not succeed. .
33. As to the appellant’s estoppel argument (which the judge rejected), it was advanced on the basis that there were before the court two rival candidates as the relevant Statement, namely that sent to B’s parents and their solicitors, which the judge found had been issued in error, and that made by the LEA but retained within its offices, which the judge held to be the relevant Statement. In that connection, the submissions made before this court by Mr Bowen for the appellant have changed in emphasis and detail from those advanced before the judge. His primary case has been that, whatever the true construction of the Tribunal order, the Statement issued to the appellant should be given legal effect, either being treated as reflecting the order of the Tribunal (in which respect he says the judge was in error in construing the order on its face and ignoring the surrounding circumstances), or because, despite the assertion of the LEA that it was issued in error, it should be treated as having been issued and served as an amendment pursuant to Schedule 27, the provisions of which he submits apply equally to an amendment ordered to be made by a Tribunal as to one proposed by the LEA of its own initiative.
34. In this respect, Mr Bowen submits the wording of para 9(1) of Schedule 27 unequivocally requires the LEA to follow such a procedure in respect of all amendments save in the various categories of situation set out in sub-paragraph (2), which categories do not include the situation where the Tribunal orders the terms of the amendment to be made. Mr Bowen also relies upon paras 9 and 10 of Schedule 27 as preventing the LEA from relying upon the existence or provisions of the Statement retained by them, because the amendment contained in that Statement (while reflecting the terms of the amendment ordered by the Tribunal) was not sent to B’s parents under the procedure prescribed in those paragraphs. He submits that the judge was in error in not so deciding.
35. Finally, Mr Bowen submits that the judge was wrong in law to take the view implicit in his judgment (see paragraph 19 above), that, had the LEA amended the Statement as set out in the notice sent to B’s parents, it would have amounted to a breach of the LEA’s statutory duty to implement that decision. He submits that such duty is essentially one for the benefit of the child concerned and that the scheme should not, and does not, preclude the LEA from deciding to make a provision over and above that ordered by the Tribunal so as to confer a benefit which the child’s parents are willing to accept. In such a case, he submits that, the LEA should be held to the terms of any amendment made, even if made by administrative error: see Ex Parte M (above at para 19).
36. On the basis of those submissions, Mr Bowen has in this court treated the relief originally claimed, namely breach of the LEA’s statutory duty to comply with the order of the Tribunal, as no more than a `fall back’ position; he now asserts as his primary case for relief a declaration that the Statement sent to B’s parents should be treated as valid, together with an order that the LEA comply with its terms.
37. Leaving aside for one moment the applicability and effect of Schedule 27, Mr Bowen’s submission amounts to the proposition that, even accepting that the effect of the Tribunal’s decision was to define the LEA’s duty as limited to the provision of care on a non-exclusive basis and that the LEA has never decided or intended to do other than act in accordance with that decision and duty, it should be estopped from so asserting. It is to be noted that such argument is not predicated upon a suggestion that the appellant was misled or in any way relied to her detriment upon the letter sent in error. B’s parents were at all material times, and have remained, aware that B was not receiving the level of exclusive provision for which the amendment set out in that letter provided; and of the LEA’s contention that by reason of the Tribunal’s order the LEA had no duty to provide such care. Thus the validity of the assertion of an estoppel rests solely upon the argument based on Schedule 27, namely that the letter and statement sent in error should be given statutory effect as an amendment duly made in accordance with its provisions, whereas the amendment made in the Statement retained by the LEA is ineffective because not made the subject of the Schedule 27 procedure.
38. So far as the latter is concerned, I have doubts whether the procedure for amending a Statement set out in Schedule 27 is intended to apply to an amendment which does no more than replicate the terms of an order of a Tribunal pursuant to a parental appeal under s.326, as opposed to one which includes some fresh or further amendment made by the LEA in respect of which there is a parental right to make fresh or further representations and a fresh appeal to the Tribunal. That is because (i) para 10 contemplates an amendment proposed by i.e. made on the initiative of the LEA rather than pursuant to the order of a Tribunal; (ii) it requires the LEA to invite representations about `their proposal’ under sub-paragraph 2 (representations which would already have been made clear at the Tribunal hearing); (iii) it refers in sub-paragraph 3 to the local authority (following representations) taking a decision on its own proposal; and (iv) in sub-paragraph 4, it requires the LEA to give notice in writing to the parent of his right to appeal against the description of need and/or special provision specified in the Statement which, in the case of an amendment pursuant to a Tribunal decision, will already have been the subject of an appellate decision and an order for amendment. The framework and wording of such a procedure seems inappropriate to a case where the order of the Tribunal makes clear the precise terms of the amendment to be made, so that no further decision or exercise of discretion is required on the part of the LEA as to the provision to be made or the wording necessary to cover it. In such a case, any appeal in respect of the amendment made would simply be an appeal to the Tribunal in respect of its own decision.
39. Whether or not the procedure provided for in paragraphs 9 and 10 is intended to apply to such an amendment, it is clear that, when sending the letter and the erroneous Statement to B’s parents and solicitors in purported compliance with the order of the Tribunal, the LEA were not purporting to comply with the Schedule 27 procedure. Neither the letter nor the notice purported to be a proposal by the LEA for amendment; nor did either refer to or adopt the procedure provided for in Schedule 27; nor did either inform the appellant of any right to make representations, let alone any right of appeal. All that the LEA did was to purport (wrongly) to enclose a Statement `modified in accordance with the direction of the SEN Tribunal’ (see paragraph 7 above). It seems to me that, if Mr Bowen is correct in asserting that the amendment made in the compliant Statement retained by the LEA was invalid simply by reason of the failure of the LEA to comply with the provisions of Schedule 27, then the same is true of the amendment which appeared in the Statement sent in error.
40. I do not consider that Mr Bowen is able to derive assistance from the decision in Ex Parte M. In that case, the relevant statutory scheme was contained in the Education Act 1981. The local education authority included in a Statement of special needs, under the heading `Special Education Provision’, a provision for intensive speech therapy. When subject to proceedings for failure to make such provision, the authority contended that, as a matter of law, speech therapy was not special educational provision and therefore they were not empowered to specify it in the Statement. They further submitted that the inclusion of individual speech therapy on an intensive basis was an administrative error or oversight by which they should not be bound. The Divisional Court found that the Statement was properly made and that the inclusion of individual speech therapy on an intensive basis was not an administrative error or oversight, the authority and its officers being well aware of the distinction between educational and non-educational provision and that with full awareness they had provided for it in the relevant part of the Statement. However, Stuart-Smith LJ observed at p.289 that:
“Even if it was a mistake, it does not, in my judgment, mean that the Statement is a nullity. At best it would be a matter for the discretion of this court whether we were to grant a remedy to the applicant or not.”
Pill LJ observed, at p.290:
“In my judgment, that categorisation contained in a formal Statement signed with knowledge of its contents is not invalidated and cannot be ignored on the basis that it was an administrative error. The authority may not fully have appreciated the legal implications of their action, but the Statement cannot be impugned by them on that ground.”
41. There are a number of distinctions between that case and this. As the judge pointed out below, the statutory regime considered in that case preceded the establishment of the Special Educational Needs Tribunal and the only available appeal was to an appeal committee within the local education authority which had no power to re-write the provision, its power being limited to confirmation or remission for reconsideration: see s.8(4) of the 1981 Act. The Statement at issue was one which originated with the authority. It was not the subject of any direction from a body having jurisdiction to decide and direct what it should contain. Further, the `mistake’ relied on was said to arise from an error as to the categorisation of a provision deliberately included, rather than being included as the result of clerical error. I do not consider that, in this case, the court should grant relief on the basis of a Statement mistakenly issued in purported compliance with the order of the Tribunal when it manifestly did not so comply and did not cause any prejudice to the appellant.
42. I am prepared to accept the submission of Mr Bowen that if, following the decision of the Tribunal the LEA had intentionally made an amendment to the Statement in a form different from that ordered by the Tribunal but which was more advantageous to the child, so that, being acceptable to the parents, they did not seek to challenge it by way of appeal, it would be wrong to treat the LEA as in breach of its duty to implement the decision of the Tribunal. That is because, in this context, the statutory duty of the LEA is owed to the child for his or her benefit rather than to the wider public. Nonetheless, the primary purpose of the appeal procedure, and the concomitant duty of the LEA to amend a Statement in accordance with an order made by the Tribunal on such appeal, is to rule upon and define the extent of the LEA’s obligations in the event of dispute. In that sense the LEA has an interest and is entitled to rely upon, the terms of the Tribunal’s order as marking the limits of its obligations, as the judge held. On the basis of the case as then advanced before him, which did not include reliance by the appellant upon Schedule 27, the judge held that the duty of the LEA was determinable by reference to the Statement retained by the LEA, that being the Statement which faithfully replicated the wording of the Tribunal decision. Even accepting Mr Bowen’s argument before us that the amendment contained in the Statement itself could not be regarded as validly made for want of proper procedure, the point of reference for determining the duty of the LEA in any vacuum left by its failure to follow that procedure was and is the order of the Tribunal and not the Statement issued in error.
THE MEANING OF THE TRIBUNAL’S ORDER
43. The judge found little difficulty in holding that the obligation to cause one-to-one support to be available to B. for `every hour of every day’, did not amount to an obligation to provide it on a dedicated and exclusive basis throughout the day. There is plainly a difference between having available a number of experienced assistants in sufficient number to provide one-to-one support whenever needed and an obligation to ensure that, at every moment of the day B, is actually the subject of immediate attention and support from a particular assistant or assistants. It is the difference between one person being in immediate and exclusive attendance upon a child at all times and the liberty for the school to organise a `pool’ of assistants in a manner which does not entail immediate physical supervision at every moment, but allows for attention to be given by individual assistants to the needs of other children also, provided reasonable observation is maintained, and immediate assistance available, in the event of any physical or emotional crisis on the part of B. The point is a short one, and so far as a court is concerned, one largely of impression, absent expert evidence to the contrary.
44. It has been argued by Mr Bowen that to deal with the matter in that way is to ignore modern principles of construction which required one to examine the assumed intention of the parties in the context of the surrounding circumstances. However, in this case the court is not construing an inter partes contract. It is construing the order of a Tribunal which, albeit made in a form of words agreed by the parties, falls to be considered objectively, with a view to determining whether its terms have been complied with by a body under a duty to act in accordance with its terms. On that basis, I agree with the judge that the LEA complies with its statutory duty if, for every hour of every day that B. is in school, one-to-one support is available to her, but that such support does not require the deployment of any specific assistant or assistants on the basis of dedicated exclusivity.
DISCRETION
45. The judge stated that, even if he were wrong that the relevant Statement was that which remained upon the LEA’s file, he would, in the exercise of his discretion, have denied relief on the basis that the document sent to B’s parents was sent as a result of genuine mistake. Such a decision was in my view well within the purview of the judge’s discretion on applications of this kind.
46. In arguing the matter before us, faced with the possibility of the rejection of both his primary and fall-back submissions, Mr Bowen adopted a last ditch stance that, because of the failure of the LEA to follow the Schedule 27 procedure in respect of the Statement made but retained in the LEA office, the LEA should be ordered in any event to serve a copy of it in pursuance of the s.27 procedure so that the appellant may appeal against it, thus giving her the opportunity to invite the Tribunal to alter or elaborate the wording of the amendment to accord with the appellant’s original understanding of what was agreed. I do not think that that would be an appropriate course. The retained Statement no longer languishes in the LEA’s file, having long since been served on B’s parents in the course of proceedings. Had the LEA not originally made the mistake which it did, but had forwarded an amended Statement in the form which it retained, and had it also, in accordance with Schedule 27, informed B’s parents of their right to make representations and/or to appeal, it does not seem to me that they would have had any prospect of a successful appeal because the amendment simply replicated the language of the Tribunal’s order.
47. Furthermore, Regulation 36 of the Special Educational Needs Tribunal Regulations 1995 reads:
“(1) The Secretary of the Tribunal shall, at any stage of the proceedings if the Authority applies or the President so directs serve a notice on the parents stating that it appears that the appeal should be struck out on one or both of the grounds specified in paragraph (ii) below or for want of prosecution.
(2) the grounds referred to in paragraph (i) are that –
(a) the appeal is not …. within the jurisdiction of the … Tribunal;
(b) the notice of appeal is or the appeal is or has become, scandalous, frivolous or vexatious.”
It is clear that under that provision the Tribunal has the power to strike out an appeal which is no more than an endeavour to re-litigate the same issue twice: see White -v- Aldridge QC and London Borough of Ealing [1999] ELR 150. In my view that is what the appellant would be seeking to do if, following an order formally to re-serve the compliant notice under Schedule 27 she sought by way of appeal to attack an amendment made in the form previously considered and ordered by the Tribunal. In this connection, Mr Bowen relied upon remarks made by Laws J in L -v- Clarke and Somerset County Council [1998] ELR 129 at 137 to the effect that:
“The real question, as it seems to me, in relation to any particular statement is whether it is so specific and so clear as to leave no room for doubt as to what has been decided is necessary in the individual case. Very often a specification of hours per week will no doubt be necessary and there will be a need for that to be done.”
In my view those remarks do not assist the appellant in this case. In a situation where the very issue between the parties before the Tribunal related to whether one-to- one dedicated care was required throughout the day or whether it was sufficient simply for it to be available whenever necessary, I consider that the terms of the order were indeed clear as to what had been decided. In my view this court should in its discretion refuse the order sought by Mr Bowen.
48. Finally, I would repeat the observations of the judge that, as it seems to me, B’s parents have throughout their dealings with the LEA and Elleray Park School, been motivated not by any wish to be difficult, but by their sincere concern to act in the best interests of B’s education and development. They are bound to be disappointed when I say that I do not consider that the judge came to a wrong decision and I would dismiss the appeal.
Lord Justice Tuckey: I agree
Lord Justice May I also agree

 

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