Parent wins right for mainstream inclusion
08/07/2004
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Stephanie, CheshireDouglas Silas Head of Education and Public Law wins the right for a parent of a child with special educational needs to have her child educated at the mainstream school of their choice.
The appeal court clarified one of the most contentious points currently in educational law in the UK. Impacting on parents, Local Educational Authorities (LEA's) and Special Educational Needs Tribunals the point of law has never been adjudicated before.
The case concerned D, aged 12, who has emotional, behavioural and learning difficulties (EBD) and had attended mainstream school for most of his school life. Due to begin secondary schooling his Local Education Authority (LEA), Hounslow, finalised D's Statement of Special Educational Needs naming a placement at a special school.
Committed to ensuring that her son was given the opportunity to progress in a mainstream school. His mother (H) appealed the decision. She stated that whilst D may have had a difficult time in previous mainstream placements this was because he had never received the proper support he needed within those placements.
Court of Appeal - Published July 8 2004
H v Special Educational Needs and Disability Tribunal and Another
Before Lord Justice May, Lord Justice Jonathan Parker and Lord Justice Dyson - Judgment June 23, 2004-08-24
The Court of Appeal so stated when allowing in part of an appeal by H from Mr Justice Pitchford and giving guidance on sections 316 and 316A of the Education Act 1996, as amended by section 1 of the Special Educational Needs and Disability Act 2001.
The judge had held on February 20, 2004 that for the purpose of section 316 of the 1996 Act, as amended, a special educational needs statement made in respect of a child should be treated as a substitution for the original preference or late statement of preference, subject to the same criteria to give parents the right to place their child in a mainstream school chosen by them.
The respondents were the Special Educational Needs and Disability Tribunal and Hounslow London Borough Council. The judge had quashed the decision of the tribunal confirming the nomination of a specialist school by the education authority for H's child.
Section 316, as amended, provides: "(3) If a statement is maintained under section 324 for the child, he must be educated in a mainstream school unless that is incompatible with - (a) the wishes of his parent, or (b) the provision of efficient education for other children."
Paragraph 3 of Schedule 27 to the 1996 Act provides: "(3) Where a local education authority make a statement in a case where the parent of the child concerned has expressed a preference in pursuance of such arrangements as to the school at which he wishes education to be provided for his child, they shall specify the name of that school in the statement unless - (a) the school is unsuitable to the child's age, ability or aptitude or to this special educational needs, or (b) the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources."
Paragraph 30 if Inclusive Schooling - Children with Special Educational Needs (DFES Guidance 0774/2001) issued in October 2001, provides: "Where the parents do not express a choice of their preferred choice of school is not named in the child's statement section 316 requires that the local education authority must name another mainstream school."
Mr David Wolfe for the claimant; Mr Steven Kovats for the tribunal; Mr Peter Oldham for Hounslow.
LORD JUSTICE JONATHAN PARKER, giving the judgment of the court, said that it was of crucial importance to recognise that the process for recognition of parental choice of a particular school contained in paragraph 3 of Schedule 27 to the 1996 Act was entirely distinct in both its nature and purpose from the process whereby a local education authority discharged its duty under sections 316 and 316A, as amended.
Under the paragraph 3 process, parents had a qualified right to insist in their preference fir a particular school. The right was qualified by paragraph 3(3)(a) and (b), in that if any of the conditions in those subparagraphs was met, the local education authority was not bound to specify the name of that school in part 4 of the statement, although there was nothing in paragraph 3 which expressly prevented it from doing to.
Section 316 imposed a duty on a local education authority to educate a child in a mainstream school if the parent wished it, unless that was incompatible with the provision of efficient education for other children subject to the condition that there were no reasonable steps that they could take to prevent the incompatibility.
Section 316A(4) provided that where a local education authority decided to make a statement for a child under section 324, and lawfully rejected a parent's preference for a particular school, that was, where the paragraph 3 process had been exhausted, it should, in making the statement, comply with section 316(3).
In the context of issues as to the contents of part 4 of a statement, the section 316 process was subordinate to the paragraph 3 process in the sense that it only would come into operation where the paragraph 3 process, if lawfully invoked by the parent, had been exhausted.
Where the paragraph 3 process had been lawfully invoked, the starting point for the local education authority, and hence for the tribunal standing in its shoes, should be the question whether the parent was entitled to insist on his or her choice of school.
The parent would be so entitled unless either the "unsuitability" condition on paragraph 3(3)(a) or "incompatibility" condition in paragraph 3(3)(b) applied. Subject to that, the chosen school should be named in part 4 of the statement, and, so far as part 4 of the statement was concerned, the section 316 process would not come into operation.
However, if one or the other prescribed conditions applied, and the local education authority decided not to name the chosen school in part 4 of the statement, then by virtue of section 316A(4) the section 316 process would come into operation.
Section 316 on its true construction did not impose a duty on a local education authority to name a particular school in part 4 of the statement, then such a duty could not be supplied by paragraph 30 of DFES Guidance 0774/2001.
In carrying out the section 316 process, the local education authority, and hence the tribunal, had a discretion to consider particular schools as candidates for naming on part 4 of the statement.
Any preference expressed by a parent for a particular school or schools was no more than nominations of candidates for consideration in accordance with section 316/316A.
In section 316 context the tribunal should consider all candidates for nomination on an equal footing, whether they were proposed by the parent or by the education authority. It was not open to the tribunal to consider proposals from other sources.
Solicitors: Douglas Silas, Head of Education and Public Law Alexander Harris; Treasury Solicitor; Mr Michael Smith, Hounslow.
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