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	England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Hill v Bedfordshre County Council [2007] EWHC 2435 (Admin) (02 November 2007) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2007/2435.html Cite as: [2008] ELR 191, [2007] EWHC 2435 (Admin)

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IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice Strand, London, WC2A 2LL
		02/11/2007

Mr Justice Wyn Williams:

1. The Claimant was born on 29 May 1988. He suffers from aspergers syndrome although he has high cognitive abilities. His parents are Lawrence Hill and Paula Hill and they reside with the Claimant at 6 Wheatlands Close, Maulden Bedfordshire.
2. Throughout his childhood the Claimant has had special educational needs. Bedfordshire County Council, the Defendant, has been the local authority responsible for issuing a statement of the Claimant's special educational needs.
3. The Claimant, his parents and the Defendant have not always agreed about the educational provision to be made for the Claimant. For example, in 2003 and 2004 there was a disagreement about the school which should be named in the statement of special educational needs as the school which was to provide for the Claimant's education. Following an appeal to the Special Educational Needs and Disability Tribunal, (hereinafter referred to as the Tribunal) the Claimant's parents were successful in having Cademuir International School, in Scotland, named as the school which was suitable to meet the Claimant's needs.
4. The Claimant began his study at Cademuir on 12 January 2004. He remained at that school for the remainder of the academic year and also studied at that school in the academic years 2004/2005 and 2005/2006.
5. On 29 May 2006 the Claimant became 18 years of age. Until shortly before that time it was anticipated both by the Claimant and his parents, on the one hand, and the Defendant on the other that he would continue to study at Cademuir during the academic year 2006/2007 and that his time at that school would cease in the summer of 2007, shortly after he had reached his 19^th birthday. Unfortunately, however, in early May 2006 the Claimant's parents were informed that the school was closing due to the fact that the company which controlled it was going into liquidation.
6. Following the discovery of the closing of the school the Claimant's parents contacted the Defendant to inform them of that fact. On 9 May 2006 the Claimant's parents wrote to the Defendant confirming the closure of Cademuir and requesting a prompt meeting with an appropriate officer "to determine [the Claimant's] continued education and support of his special educational requirement."
7. On 8 June 2006 the Defendant wrote to the Claimant's parents indicating that it had reviewed the Claimant's special educational needs. It also informed them that the Claimant's statement of needs was appropriate and should continue to be maintained with no amendments. On the face of it that was somewhat surprising, since, by then, the Defendant knew that Cademuir was to close. Yet it also accepted that educational provision was to be provided to the Claimant in the academic year 2006/2007.
8. On 11 July 2006 the Claimant's parents wrote to the Defendant to inform it that they had located a suitable establishment for the Claimant to attend. The substance of the letter is as follows:-

"As you are aware from both the school and ourselves, Cademuir School, that Martin was attending, has closed. We have, in the meantime, and with your knowledge and agreement, been investigating all alternative schools and colleges in Scotland, which are able to support Martin and maintain this current Scottish education regime.

Marin has now visited all the options which we have researched and he has expressed his opinion as to Elmwood College Cupar, as being the most suitable for him. They, in turn, have made a conditional offer based on Martin's exams results being a minimum four passes at Standard Grade, inclusive of English. These examination results are expected to be known on the 8^th of August 2006, from SQA.

The new college term/year commences on Monday 4^th September 2006 with arrivals being on the Sunday [3^rd]. This means there will only be one month between knowing the examination results and the new term start.

I would, therefore, ask the Council to agree the ongoing funding, by the end of July 2006, in line with their letter to Cademuir School, 6^th February 2006. Obviously it will be based on the conditional element, inserted by Elmwood, for the appropriate level of examination results being satisfied.

Elmwood have reviewed Martin's current Statement of SEN, his previous school reports and the information provided by the SENCo from Cademuir.

They have constructed a package of support based on the needs, as they believe necessary to meet those needs…………

The cost of the above package is £35,139.36 ………."

9. There was, apparently, no immediate reply to that letter. On 2 August 2006 the Claimant's parents wrote to the Defendant seeking a reply and indicating that in the absence of a reply "within the next five working days of the date of this letter" the Claimant's parents would proceed on the basis that the Defendant had accepted Elmwood College and funding would be met.
10. On 10 August 2006 the Defendant wrote a long letter to the Claimant's parents. In that letter, for the first time, the Defendant raised an issue about the status of Elmwood College. In summary it informed the Claimant's parents that it was not a school but a college of further education. Having made that point the Defendant wrote:

"Also this week I have contacted the DfES for advice as it is my understanding that in England, when students go on to Further Education (FE) colleges their Statements of Special Educational Needs cease to be maintained by the Local Authority. FE Colleges are funded through a different mechanism to schools by the Learning and Skills Council. The DfES promised to investigate the situation but I have not heard back from them yet. I will contact them again in the middle of next week when I am back in the office next if no reply is forthcoming by Wednesday 16 August"

11. There followed telephone conversations and correspondence between the Claimant's parents and employees of the Defendant. On 24 August 2006 the Defendant wrote to the Claimant's parents informing them that it was the Defendant's view that the Claimant's Statement of Special Educational Needs would lapse automatically if he moved into residence at Elmwood College since it was a Further Education College rather than a school. The Defendant also expressed the view that since the Claimant had passed his 18^th birthday he would cease to be a child for whom the Defendant was responsible and, accordingly, the Defendant could no longer maintain a statement in respect of him.
12. At or about this time the Claimant's parents instructed solicitors, namely Clarke Willmot. That firm of solicitors wrote to the Defendant on 25 August 2006, asking for confirmation that it would meet the cost of the Claimant's attendance at Elmwood College. The letter concluded by asserting that in the absence of such a confirmation the Claimant's parents would either appeal to the Tribunal or proceed by way of judicial review.
13. On 31 August 2006 the Claimant's parents wrote directly to the Defendant. In the letter they asserted that the Defendant's legal contentions were wrong and, in effect, they requested a meeting with the Defendant. They sent another letter on 1 September 2006.
14. On 8 September 2006 the Defendant replied to the letters of 31 August and 1 September and also to further letters sent in early September. The relevant substantive paragraphs are as follows: -

"………… The position of the Local Authority is that if Martin had remained at Cademuir International School we would have continued to support him, as identified in his statement, to complete his course of study at the school. It is pleasing to note on the information you have provided that Martin was able to complete all those courses he has started at the school. If another school is requested or identified, that would meet his needs as outlined in his statement and at a similar cost, we could amend Martin's statement and provide funding for a further year until Martin is 19. The Authority has not proposed to cease Martin's statement. However, the provision you have identified is not a school and we have no statutory powers to fund FE colleges. Our legal advice and the DfES have confirmed this and a meeting could not change the LA's stance on this. However, we would be happy to meet with you to discuss alternative school options for Martin'seducation.

……… We therefore understand the options to be:

For another school that could meet Martin's needs to be identified until he is 19.

For LSC (Learning Skills Council) to be approached to fund your choice of FE college.

For Martin to attend a local college placement.

For Martin to work with Connections service to support him in entering the world of work."

15. This letter provoked a letter from the Claimant's parents (letter dated 11 September 2006) in which they pointed out that there appeared to be a conflict in the positions taken by the Defendant in its letters of 24 August 2006 and 8 September 2006. The Claimant's parents suggested that in the first letter the Defendant was "lapsing the [statement] and in the other you are not". They sought clarification. The clarification offered by the Defendant was set out in its letter of 14 September 2006. The Defendant's assertion was that the statement of special educational needs would lapse if the Claimant was placed at Elmwood as this was not a school. The statement would not have ceased "within the meaning of the Education Act 1996." In letters of 14 September and 15 September senior employees of the Defendant confirmed to the Claimant's parents that the Defendant was unable to fund the Claimant's placement at Elmwood College. That assertion was made on the basis that it would not be lawful for it to do so.
16. There followed a further exchange of correspondence and emails and a meeting. On 28 September 2006 Mr John Atkinson, the Defendant's Head of Legal Services sent a long letter to the Claimant's parents in which he set out what he perceived to be the correct legal position and the stance of the Defendant.
17. On the first page of the letter Mr Atkinson summarised his understanding of the dispute between the Claimant's parents and the Defendant. He said:-

"….My understanding is that your difference of opinion with the Council is not about whether Martin qualifies for support under the [the Education (Student Support) Regulations 2006], but rather whether the Council is obliged to name Elmwood in Martin's Statement of Special Educational Needs in place of Cademuir International School and meet the full cost of Martin's education and accommodation at the College during the forthcoming academic year."

He then continued:

"Martin is now 18. He is no longer a registered pupil at the school and he is not therefore a child for whom the local educational authority is responsible under section 321 of Education Act 1996.

You have pointed out that when the SENDIST directed the Council to specify Cademuir International School in Martin's Statement, they commented favourably on the fact that Martin would be able to remain at the school until he was 19 years old and this would provide him with consistency of post-16 education and would assist in making up the educational deficit that Martin had experienced at that date. Unfortunately, Cademuir closed in July 2006 and thus he was unable to remain at the school for a further year. The Tribunal's comment did not impose an obligation on the Council to make provision for Martin up to the age of 19 in circumstances where he was no longer attending Cademuir International School.

Once a young person is over compulsory school age and leaves school, then responsibility for his special educational needs passes to the Connexions Service and the Leaning and Skills Council……

As I understand it, a further point that requires clarification is the nature of Elmwood College, whether it is a college of further education or whether it is (or could be treated as though it were) a school for the purpose of Martin's education there

…….I have set out the statutory provision above and I am satisfied on this basis that Elmwood College is not school. As far as Martin's future education is concerned, I am also of the view that this is not now the responsibility of the Council as local educational authority, though I accept that, if and when he enrols on a course of higher education, he may be eligible for a student loan under the Education (Students Support) Regulations 2006 and that the LEA administer this process.

In short, my view of the position is when Martin left Cademuir International School at the age of 18 the Council's responsibility to maintain a statement of special educational needs for him came to an end. Responsibility for his future education and special needs passed to the Learning and Skills Council and Connexions.

The procedure for ceasing to maintain a Statement is set out in paragraph 11 of the Education Act 1996, but this procedure does not apply where the local educational authority ceased to maintain a statement for a child who has ceased to be a child for whom they are responsible. In this situation, the LEA can cease to maintain a Statement under paragraph 9 of the Schedule 27 of the Education Act 1996 and there is no right of appeal to the SENDIST."

18. Three days before Mr Atkinson sent his letter to the Claimant's parents the Claimant commenced studies at Elmwood College. Since that time, as I understand it, the Claimant's parents have funded his placement at that establishment.
19. It is also to be noted that on 15 September 2006 the Claimant's parents made contact with the Learning and Skills Council and inquired whether that organisation would provide funding for their son's placement at Elmwood College. On 24 November 2006 the Learning and Skills Council replied in terms which made it clear that there might be significant difficulty in the way of it funding the Claimant's placement.
20. The Claimant's letter before action was dated 4 December 2006. In it the issues between the parties are identified as being two-fold. The first issue identified was whether or not the Defendant had statutory power or authority to fund provisions at Elmwood College. The second issue related to whether or the statement of special educational needs had "lapsed" when the Claimant began his studies at Elmwood College. In relation to both issues the letter suggested that the Defendant stances were unlawful. The letter went on to specify that it expected the Defendant:

"(a) To make a decision, setting out full reasons, whether or not to fund Martin at Elmwood College using the powers as set out in the Education Act 1996, section 15A and the Local Government Act 2000 under section 2.

(b) Confirm that Martin's statement has not lapsed and put in place the provision which should be made to him."

21. On the 20 December 2006 the Claim Form was received in the Administrative Court Office. On 19 December 2006, however, the Defendant prepared a response to the Claimant's letter of claim.
22. Under the heading "The Council's Response to the Proposed Claim" the Defendant acknowledged that it had not considered whether it should exercise its discretion under either section 15A of the Education Act 2006 or section 2 of the Local Government Act 2000 so as to enable it to pay for the Claimant's education at Elmwood College. It also asserted that it had taken the view that responsibility for the Claimant's educational needs passed to the Learning Skills Council once the Claimant had ceased to be a registered pupil at the school. The Defendant went on to say, however, that it was prepared to review its position and consider whether it should exercise its discretion under the Education Act and the Local Government Act. On that basis it sought the Claimant's consent to disclose such discussions as had taken place between his parents, himself and Connexions about the opportunities that were available for the Claimant in further education.
23. So far as the issue of a statement of special educational needs was concerned, in summary, the Defendant's stance was the Defendant could cease to maintain the statement without giving notice to the Claimant's parents essentially by virtue of section 321(3) of the Education Act 1996 and that is what had occurred in this case. The Defendant further asserted that there was no right of appeal to the Tribunal.
24. In its Acknowledgement of Service the Defendant maintained that no live issue existed in relation to the first ground of challenge set out in the Claim Form since it had agreed to review whether or not it should exercise its discretion to fund the Claimant's placement at Elmwood College. In relation to the second ground the Defendant's stance was an elaboration of what it had said in its letter of 19 December 2006.
25. Dobbs J considered the application for permission on 29 January 2007. She took the view that ground one fell away in the light of the Defendant's willingness to consider exercising its discretion to fund the Claimant's place at Elmwood College. She ordered that there should be an oral hearing in relation to ground two at which, in effect, the substantive issue should be considered.
26. This Claim came before me first on 30 April 2007.
27. In advance of that hearing the following matters of importance had occurred. On 21 March 2007 the Defendant wrote to the Claimant's Solicitors to inform them that the Deputy Director of Children Services, Nicki Pace, had reviewed the position about whether or not the Defendant was empowered to finance the Claimant's education at Elmwood College and if so, whether it should do so. The letter went on to inform the Claimant's Solicitors that the Defendant was satisfied that there was a discretionary power under section 2 Local Government Act 2000 to fund the placement but it had also decided that would not be appropriate to exercise the power in favour of funding the placement. The reasons advanced were two-fold. Firstly, the Defendant considered that the primary responsibility for the provision of further education for persons with special educational needs lay with the Learning and Skills Council. The reasoning in support of that assertion was set out in a previous letter dated 2 February 2007. The second reason advanced by the Defendant was that it appeared that there were suitable courses available to the Claimant locally which could meet his needs at a lower cost. The Defendant also asserted that the Claimant had not required Connexions to undertake a statutory assessment under the Learning and Skills Act 2000 and it did not appear to the Defendant that the Claimant or his parents had approached the Learning and Skills Council for funding.
28. This letter provoked an amendment to the grounds of challenge in these proceedings. On or about 23 April 2007 a document entitled "Proposed Amendment and Further Elaboration of Ground (1) Of Challenge" was filed and served. In summary that document asserted that the Defendant had continued to act unlawfully in failing to appreciate the extent of the powers open to it to fund the Claimant's placement at Elmwood College and, in any event, the decision to refuse to exercise its powers communicated in the letter of 21 March 2007 was itself unlawful.
29. At the hearing before me therefore, there were two grounds of challenge which had to be considered. It became apparent during the course of the oral hearing that there were issues as to factual matters which might not be capable of resolution on the documentary evidence before me. Accordingly I afforded to the parties the opportunity to put in further documentation. At the end of the oral hearing, therefore, the case was adjourned for that purpose.
30. The parties availed themselves of the opportunity to put in further documentation. In addition Irwin J gave judgment in the case of Wolverhampton City Council v The Special Educational Needs and Disability Tribunal & another on 14 May 2007, [2007] EWHC 1117 (Admin). In turn, the parties made written submissions to me upon the effect of that decision. Those submissions were received by me early in July (when I was sitting in Birmingham) and then the long vacation intervened. I mention these latter facts only to afford some explanation of why it is that a judgment is being given in October 2007 in relation to a hearing which began on 30 April 2007.
31. With that lengthy introduction in relation to the facts and procedural history of the case I turn to the grounds advanced by the Claimant.
32. I make it clear that ground one is considered in its amended form and for the avoidance of any doubt I give permission to the Claimant to rely upon the document dated 23 April 2007 and entitled "Proposed Amendment and Further Elaboration on Ground (1) Of Challenge".

Ground 1

33. The case for the Claimant is that the Defendant was empowered to fund the Claimant's education at Elmwood College on three bases. Firstly it has such power pursuant to section 15A Education Act 1996. Secondly it has such power by naming a school in the Claimant's statement but also providing that he receives some or all of his educational provision at Elmwood College and thirdly by virtue of section 2 Local Government Act 2000. The Claimant argues that the Defendant has acted unlawfully in refusing to consider exercising its powers on the first two bases specified above and he alleges that the Defendant's decision to refuse to exercise its powers under section 2 Local Government Act 2000 is also unlawful.
34. I deal firstly with whether the decision taken by the Defendant on 21 March 2007 to refuse to exercise powers under section 2 Local Government Act 2000 was unlawful. The power under the section is a power "to do anything which [the local authority] consider" is likely to achieve the statutory objectives which are expressly specified. The objectives include the promotion or improvement of the economic or social well-being of the area. The power may be exercised for the benefit of all or any persons resident in a local authority area (sub-section 2) and includes a power to give financial assistance to any person (sub-section 4). In my judgment there can be little doubt that the Defendant was correct to recognise that the section conferred upon it the power to pay for the Claimant's education at Elmwood College.
35. Provided the statutory objectives are met the statutory provision places no constraint upon a local authority when it is deciding whether or not to use its powers.
36. Mr Squires, on behalf of the Claimant, argues that the Defendant's decision to decline to exercise its power under section 2 of the 2000 Act in favour of the Claimant is susceptible to challenge on a number of bases. He firstly argues that the decision of the Defendant is based upon an error of fact. Allied to this submission is his further submission that the decision involved a failure to take into account a relevant fact and/or involved the taking into account of an irrelevant fact. This ground of challenge, essentially, relates to the Defendant's assertions in its decision letter to the following effect: -

"It appears from the contact that Mr Hill had with Connexions that there was no evidence that Mr Hill required Connexions to undertake a section 140 assessment under the Learning and Skills Act 2000. Mr Hill and Martin were clearly signposted by the Local Authority (see the statement of Diane Boyd dated 7.2.2007) to Connections which gave them advice and guidance. It does not appear that Mr Hill approached the LSC to fund Martin's placement and the Local Authority considers that that is he should have done."

37. I observe that when the Defendant made its decision of 21 March 2007 it had before it (or should have done) a number of sources of evidence. One such source was the Witness Statement of Mr Lawrence Hill dated 15 December 2006. In paragraph 7 of that Statement Mr Hill explains how the first contact between Connections and himself occurred in May 2006. He says that Connexions agreed that the Claimant should continue his education in Scotland if education was to continue. According to Mr Hill Connexions provided him with a book and list of schools and colleges in Scotland to help with finding a suitable establishment.
38. Mr Hill's next mention of Connexions relates to the meeting which occurred on 22 September 2006. By that time, of course, the Defendant was asserting that it did not have the power to fund the Claimant's placement at Elmwood College. The meeting of 22 September 2006 was attended by a representative of Connexions. While Mr Hill has not asserted that he asked Connexions to carry out an assessment no one suggests that any other party either made or raised the possibility of such an assessment.
39. According to Mr Hill's Statement his wife had made contact with the Learning and Skills Council prior to that meeting taking place.
40. That contact was made on 15 September 2006 and Mr. Hill says in terms that his wife asked the Learning and Skills Council whether or not they could provide funding for the Claimant's placement at Elmwood College. There followed a number of telephone calls and on 28 September Mr Swan, an employee of the Learning and Skills Council, sent an email to the Claimant's parents detailing funding possibilities. I do not believe that this email forms part of the evidence in this case but, according to Mr Hill, it did not provide definitive answers about whether or not LSC would fund the Claimant's placement. Accordingly, says Mr Hill, on 23 October 2006 a further enquiry was made of the Learning and Skills Council which resulted in the response dated 24 November 2006. That letter was exhibited to Mr Hill's statement and, therefore, it was before the Defendant when it made its decision of 21^st March 2007. The letter demonstrated quite clearly that the Claimant's parents had enquired of the Learning and Skills Council whether it would fund the Claimant's placement. The letter also made clear that any decision upon whether to fund the Claimant's placement would be likely to take a significant period of time. The whole of the letter should be read as if incorporated in this judgment.
41. In the light of the contents of that letter it is extremely difficult to see how the Defendant could have asserted in the letter of 21 March 2007 that "it does not appear that Mr Hill approached the LSC to fund Martin's placement and the local authority considers that he should have done."
42. As is clear from the letter of 21 March 2007 the decision communicated by the letter was taken on behalf of the Defendant by its Deputy Director of Children's Services, Nicki Pace. My permission was sought to allow the Defendant to adduce in evidence a statement from Ms Pace, in effect, explaining the information available to her at the time she made her decision and how the letter of the 21 March 2007 came to be written.
43. In paragraph 4 of her Witness Statement Ms Pace accepts that she had been given a copy of the letter from the Learning and Skills Council dated 24 November 2006. That is so because she accepts that she had been given a copy of the judicial review bundle and that the letter was an exhibit to Mr Hill's Statement. According to paragraph 4 of her Witness Statement, however, she cannot recall whether or not she had actually seen the letter at the time when she approved the terms of the decision letter.
44. That said Ms Pace does assert that she had seen a letter dated 16 February 2007 from the Claimant's Solicitors.
45. That letter is a response to a letter from the Defendant dated 2^nd February 2007. The Defendant's letter had suggested to the Claimant's Solicitors that they request an assessment under section 140 of the Learning and Skills Act 2000. The letter in reply of 16 February contained the information that the Learning Skills Council expected that the process of approving the funding the placement at Elmwood College would take about ten months. Ms Pace asserts that she was fully aware of that information when she made her decision.
46. In her Witness Statement Ms Pace also relies upon a fax received by the Defendant from Connexions sent on or about 5 February 2006 which makes it clear that no assessment under section 140 of Learning and Skills Act 2000 was sought or carried out. On that basis Ms Pace says that she reached the conclusion that there had been no formal approach to the Learning and Skills Council by the Claimant's parents.
47. Despite the evidence of Ms Pace as to her understanding I simply do not see how it can be asserted on behalf of the Defendant in its decision letter of 21 March 2007 that Mr Hill had not approached the Learning and Skills Council with a view to funding the placement at Elmwood College. On any sensible reading of the letter of 24 November 2006 Mr Hill had made such an approach and it is clear from the letter that there would be very significant difficulties of obtaining funding for a placement at Elmwood College for the academic year 2006/2007 from the Learning and Skills Council. In my judgment any decision maker who read that letter would reach such a conclusion.
48. Is this such an error of fact so as to lead to the view that the decision of 21 March 2007 was unlawful? Mr Hyams, on behalf of the Defendant, says no essentially because he submits that the error was immaterial to the decision.
49. There is some force in that contention in this sense. Ms Pace now says that she was fully aware that the time scale for a decision by the Learning and Skills Council upon whether it would fund the placement was of the order of ten months. Notwithstanding that timescale she took the view that the Defendant should not fund the placement and, it is submitted, if Ms Pace was of the view that the Defendant should not fund the placement notwithstanding this timescale she would hardly have been of a different view had she appreciated that a request for funding had been made.
50. There is, of course, some attraction in this approach. However, a Court should be very careful to ensure that "after the event" rationalisations of decisions are not allowed to colour what really occurred. I am quite sure that Ms Pace now considers that she had in mind the fact that the Learning Skills Council was likely to take a substantial period of time in reaching its decision when she reached her decision upon which the letter of 21 March 2007 was based. In my judgment, however, there is nothing in the letter of 21 March 2007 which even hints that such was the case and the language of the letter, in short, suggests the contrary. In making that point I refer not just to the last page of the letter but to that part of it which asserts, unequivocally, that the Learning Skills Council was body primarily responsible for the provision of further education.
51. I have reached the conclusion that the Defendant's decision as communicated on 21 March 2007 proceeded upon a material error of fact. In my judgment it was an important error in the sense that I could not possibly say that the decision would have been the same had the error not been made. That being the case, as I understand it, there is no dispute but that the decision is susceptible to being quashed.
52. This judgment was distributed to Counsel in advance of handing down on 24 October 2007. On 1 November 2007 late in the afternoon I received written submissions from Mr. Hyams to the effect that my approach in the preceding paragraph was wrong in law. He relied upon a passage in E v Secretary of State for the Home Department [2004] QB 1044 at paragraph 66. In that paragraph the court accepted as a matter of principle that a mistake as to a fact or facts giving rise to unfairness was capable of being a proper head of challenge on an appeal on a point of law provided the mistake played a material part in the decision making process. The first sentence in paragraph 51 above categorises the mistake in the instant case as material. I have also said that it was important for the reasons given. I do not accept the proposition that I have applied the wrong test.
53. In his written submissions Mr. Hyams goes on to argue, however, that this mistake was not material. He relies upon passages in Ms Pace's witness statement to justify that submission and invites me to the view that I have no option but to accept what she says.
54. The line of argument was advanced before me orally though in very short form as I have recorded. It did not find it persuasive then and I do not find it persuasive now. I am not bound to accept the contents of statements made by witnesses some time after a decision has been made to explain the factors taken into account in the decision making process when the written decision impugned and the written reasons given for it in the same document are not consistent with the contents of the witness statement. The plain fact is that I remain unpersuaded that the Defendant correctly understood all the material facts when it made its decision.
55. Finally I should say that I have thought it appropriate to deal with Mr. Hyams' extremely late submissions notwithstanding the legitimate protests of Mr Squires. I would have been justified, completely, in ignoring the submissions since, as Mr. Squires points out, the point to which the submissions are addressed has been in the arena for many months. However, since the procedural history of this case has been unusual to say the least I considered it the better course to deal with the points.
56. I can think of no reason why I should not quash the decision in the circumstances of this case and that is what I propose to do.
57. I appreciate that the Claimant also relies upon two other routes in support of Ground 1. I do not propose to deal with them in any detail. However, I should, at least, state my conclusions just in case this judgment is considered in a higher court.
58. In my judgment section 15A Education Act 1996 does empower the Defendant to fund the Claimant's education at Elmwood College. In so far as the Defendant asserts the contrary I reject that construction of section 15A.
59. I have grave reservations about whether the Defendant is empowered by any statutory provision to name a school in the statement of special educational needs when it knows and intends that the Claimant will, in fact, be educated at a wholly different establishment. I can understand that in a genuine situation, namely one where the Claimant is genuinely receiving educational provision at more than one establishment, it may be permissible just to name one establishment and indeed one would not expect otherwise. However, I cannot believe that a local education authority can lawfully name one institution as the education provider when, to repeat, not only will that institution not provide education to a person with special education needs but everyone knows that it will not and it is named as some kind of fiction.

Ground 2

60. The Claimant alleges that the Defendant has "acted unlawfully in purporting to cease to maintain the statement [of special educational needs] without giving the Claimant's parents the right to appeal and without considering whether appropriate provision was being made for him." (See Statement of Grounds paragraph 32). The Defendant's response, in summary, to that assertion is contained in paragraphs 9 and 15 of its document entitled "Summary Grounds For Contesting The Claim." Paragraph 9 asserts that the Defendant took the decision that it no longer needed to maintain the Claimant's statement after making a number of enquiries about the bodies such as the Department of Education and Skills and after considering carefully whether the provision which the Claimant's father had arranged for the Claimant at Elmwood College was appropriate. Paragraph 9 goes on: - "Having agreed with Mr Hill that the course which was available to the Claimant at Elmwood was appropriate, the Defendant concluded that once the Claimant started the course at Elmwood, the Claimant's statement would no longer have effect."
61. In response to the allegation made by the Claimant that the Defendant ceased to maintain the statement without giving the Claimant's parents a right to appeal, the Defendant asserts that when the Claimant started to attend Elmwood he ceased to be a "child for whom the Defendant was responsible" within the meaning of section 321 of the Education Act 1996, and accordingly became a child for whom the Defendant ceased to be responsible, within the meaning of paragraph 9(2)(a) of Schedule 27 to the 1997 Act.
62. Before turning to deal with the legal issues which arise it seems to me to be necessary to make findings as to what occurred as between the Claimant, his parents and the Defendant up to and including the date when the Claimant started his course at Elmwood College (25 September 2006).
63. It seems to me that what occurred was, on any view, as follows. The Claimant and his parents, having located Elmwood College, became determined to seek to persuade the Defendant that it should fund a placement at the College during the academic year 2006/2007. Equally determinedly, in my judgment, the Defendant resisted the notion that it should fund such a placement. It adopted the stance throughout the summer of 2006 that it had no power to fund such a placement – a stance which it accepts, now, was erroneous. However, it also maintained a stance that once the Claimant actually attended Elmwood College it would have no obligation towards him under the Education Act 1996 and, in particular, it would have no obligation to maintain a statement of educational needs. In my judgment no other interpretation of the relevant correspondence is possible and I make it clear that I reach that conclusion on the basis not just of the correspondence initially in the bundle but on the basis of the further documentation which was supplied to me.
64. It also seems to me that the Defendant would have contemplated funding an alternative placement at a school and it did not take the view that the obligation to maintain a statement had lapsed, automatically, simply because the Claimant had ceased to attend Cademuir. In my judgment, in substance, the stance of the Defendant was that the statement would lapse, automatically, upon the Claimant beginning to attend a college of further education and, of course, in particular Elmwood College but that if he did not and while consideration was taking place of what should happen the statement would be maintained. Further, in the event that agreement had been reached about a placement the statement would have been maintained.
65. I should record at this point that it has always been accepted by both parties that in point of fact Elmwood College is a college of further education and not a school.
66. In the light of those findings what is the legal position?
67. I begin with some of the statutory provisions to be found in Part IV of the Education Act 1996. The obligation upon a local authority to make and maintain a statement of special educational needs arises by virtue of section 324(1). That provides as follows:-

"(1) If, in the light of an assessment made under section 323 of any child's educational needs and of any representations made by the child's parents in pursuance of Schedule 27, it is necessary for the local education 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 education needs."

By virtue of section 324(7), Schedule 27 is to have effect in relation to the making and maintenance of statements under the section. There is no dispute in this case that the Claimant was a child within section 324(1) when a statement of special educational needs was first made in relation to him.

68. Paragraph 9(1) of Schedule 27 of 1996 Act provides that a local authority may not amend or cease to maintain a statement except in accordance with Paragraph 10 or 11. Paragraph 9(2) qualifies that position, however, since it provides that sub-paragraph (1) shall not apply where the local education authority cease to maintain a statement for a child who had ceased to be a child for whom they are responsible.
69. It is common ground that the provisions of paragraph 11, in particular, of Schedule 27 of the Act will apply unless at the time when the Defendant ceased to maintain a statement in respect of the Claimant he had ceased to be a child for whom they were responsible.
70. Whether or not the Defendant was responsible for the Claimant (assuming him to be child) falls to be determined in accordance with the provision of section 321(3) of the 1996 Act. That sub-section reads as follows:-

"(3) For the purposes of this part of the Act the Local Education Authority are responsible for a child if he is in their area and –

(a) he is a registered pupil at a maintained school,

(b) education is provided for him at a school which is not a maintained school but is so provided at the expense of the authority,

(c ) he does not come within paragraph (a) or (b) above but is a registered pupil at a school and has been brought to the authority's attention as having or probably having special educational needs, or

(d) he is not a registered pupil at a school but is not under the age of 2 or over the compulsory school age and has been brought to their attention as having or probably having special educational needs."

71. There is no suggestion that the Claimant was within any of the statutory criteria in section 321(3) when the decision was made that he should start at Elmwood on 25 September 2006. He had last been registered at Cademuir and, no doubt, his registration at that school had ceased when the company controlling the school had gone into liquidation. Thereafter the Claimant had not been registered at any school and, on any view, there was no intention on his part or that of his parents that he should register anywhere except Elmwood College.
72. I accept the proposition that the Defendant was not responsible for the Claimant within Part IV of the 1996 Act at the time of the decision to start at Elmwood College. As the decision of Irwin J in Wolverhampton City Council v The Special Educational Needs and Disability Tribunal [2007] EWHC 1117 (Admin) demonstrates, however, that does not mean that in some way a statement of special needs lapses automatically or that the parents of a child within Part IV of the 1996 Act have no right of appeal to a Tribunal against the cessation of a statement. In the Wolverhampton case Irwin J analysed, closely, the meaning to be attributed to the term "child" within Part IV of the Act and held that it must extend at least as far as any individual under the age of 19 (at the material time) in respect of whom the Local Education Authority does or might owe obligations under Part IV of the Act.
73. I am content, unhesitatingly, to follow that approach to the meaning of the word "child" and, in those circumstances, it seems to me that the Defendant, itself, acknowledges and has always acknowledged that as at September 2006 it might owe obligations to the Claimant under Part IV of the Act. After all it said on more than one occasion that it would be willing to fund an alternative placement at a school, properly so called, and, that being so, it would maintain the statement of special educational needs.
74. Later in his judgment in the Wolverhampton case the learned Judge held that a right of appeal against a cessation or determination of a statement existed even though a local authority was not "responsible" for the child in question. The analysis in support of that proposition is to be found in paragraphs 31-36 of his judgment.
75. I should also record, additionally, that Irwin J felt that there to be no meaningful distinction, at least on the facts of the case before him, between a cessation of maintenance of a statement and the concept of an automatic lapse of such a statement. In my judgment, the facts in this case also militate against finding any such distinction. The reality is that in the present case the Defendant was asserting that it had no power to fund a placement at Elmwood College and that if the Claimant persisted in taking up a place at that institution it would no longer maintain a statement.
76. In these circumstances and given the reasoning of Irwin J in Wolverhampton it seems to me that the Defendant should have complied with paragraph 11(2) of Schedule 27 to the 1996 Act. In other words, the Defendant should have given notice of the fact that it were intending to cease to maintain a statement (which in substance it did albeit its language was couched in terms of the statement lapsing) and also given notice that the Claimant's parents had a right to appeal to the Tribunal (which it did not).
77. In summary, my view is that at all material times, up to and including 25 September 2006, the Claimant was a child within Part IV Education Act 1996. He was not a child for whom the Defendant was "responsible" within the meaning of that part of the Act and, accordingly, it was entitled as a matter of interpretation of the Act to take the view that it need not maintain a statement of special educational needs in respect of the Claimant. However that, in my judgment, was a decision which was susceptible to appeal upon its merits and, accordingly, notice of the Claimant's parents appeal rights should have been given to them. The failure to give such notification of those rights was unlawful. It is common ground, as I understand it, that the Defendant deliberately chose not to notify the Claimant's parents of a right to appeal to the Tribunal. I do not say that in any way critically. I have no doubt that the Defendant acted in good faith based upon its understanding of the law. As I have found, however, its understanding was erroneous.
78. I should add for completeness that I was provided with a bundle of authorities and reference was made to those authorities in the original skeletons of Counsel. In my judgment, however, the decision of Irwin J in Wolverhampton is, essentially, conclusive of the issues which arise under Ground 2 and, that being so, no useful purpose would be served by lengthy citation of authorities which preceded that case.
79. I understand that the parties are attempting to agree a Minute of Order. That being so there is no need for Counsel to attend upon the handing down of this judgment. I direct that a Minute of Order shall be filed with my Clerk by 4pm 9 November 2007. If that proves impossible to achieve the case will be listed in the week commencing 12 November 2007 at a date which will be agreed with Counsel or in default of agreement chosen by me.