Bedfordshire County Council v Dixon-Wilkinson [2009] EWCA Civ 678

[2009] EWCA Civ 678Case No C1/2008/2825
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM
from a decision of Sir George Newman, sitting as a Deputy High Court Judge of the Queen’s Bench Division in the Administrative Court on 4 November 2008
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 09/07/2009
Before
LORD JUSTICE RIXLORD JUSTICE WALLLORD JUSTICE AIKENS
Between
BEDFORDSHIRE COUNTY COUNCILAppellantMR & MRS DIXON-WILKINSONRespondents
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company165 Fleet Street, London EC4A 2DYTel No: 020 7404 1400, Fax No: 020 7404 1424Official Shorthand Writers to the Court)
Mr Richard McManus QC and Paul Greatorex (instructed by The County Council) for AppellantDavid Wolfe (instructed by Messrs Levenes) for RespondentsHearing Hearing date: 23rd June 2009
JudgmentLord Justice Wall :
[1]This appeal (from a decision of Sir George Newman, sitting as a Deputy High Court Judge of the Queen’s Bench Division in the Administrative Court on 4 November 2008, for which permission was given by Sullivan LJ on paper on 28 January 2009) potentially raises issues of considerable importance both for disabled children of school age and for local education authorities. I use the word “potentially” because I have come to the clear conclusion that this court does not have the material upon which it can properly resolve the underlying issues raised by the appeal, and that it should, accordingly, uphold the order made by the Deputy Judge and remit the application to a fresh first tier Tribunal (formerly Special Education Needs and Disability Tribunal (SENDIST)) for rehearing. This judgment will explain why I have come to that view.[2]I propose to take the facts and the issues to which they give rise from paragraphs 2 to 5 of the Deputy Judge’s judgment, which can be found in full at [2008] EWHC 2664 (Admin): - 2. The facts of this case must mirror what is a day-to-day occurrence for local education authorities and parents throughout England and Wales – namely transporting children to school. In this instance D, a disabled boy aged 15, suffering from Asperger's Syndrome, is transported from home to school in a small bus in company with other children, which bus is provided free of charge by Bedfordshire County Council. The County Council are obliged to make this travel arrangement available pursuant to section 508B of the 1996 Act which imposes upon them an obligation to provide:
"such travel arrangements as they consider necessary in order to secure that suitable home to school travel arrangements, for the purpose of facilitating the child's attendance at the relevant educational establishment in relation to him, are made."
The provision to date has involved a small bus transporting D, in company with other children, to the Samuel Whitbread Community College - not his nearest school but the nearest one which meets his special needs. The travel arrangements for all the children in the bus involve the return journey commencing when ordinary school ends at 3.00 pm. But D has developed a particular interest in the technical aspects of theatrical production and has been encouraged in that pursuit by one of his teachers at the school. As a result, he has been attending the school's "Tech Club", which meets once a week after school, but extends to every night of the week when club members are involved in the technical aspects of a particular theatrical production at the school. 3. Tech Club finishes at around 4.30 pm and D's parents asked Bedfordshire to adjust the time at which the school transport would pick D up from school to allow him to attend Tech Club. It is contended that the need for this adjustment arises for D in a way in which it would not be necessary for a non-disabled pupil attending Tech Club, because non-disabled pupils will be able to make their own way home, without the need for the school transport time to be adjusted, whereas D is not able to make his own way home because of his disability. 4. Accordingly, unless the school transport pick-up time, so far as it affects D, is adjusted on those days when D wishes to attend Tech Club it is said he is placed at a substantial disadvantage compared to his non-disabled peers who are able to attend Tech Club. 5. As a result, his parents asked Bedfordshire County Council to adjust the time of the school transport to allow D to attend Tech Club. Plainly, since there are other children who travel in the bus and normally go home at 3.00 pm who would have no desire to be at school until 4.30 pm, it was clear that to agree to the request would mean the provision by Bedfordshire County Council of a taxi to take D home from school at 4.30 pm. Bedfordshire County Council refused to provide the taxi. As a result, his parents complained to the Special Educational Needs and Disability Tribunal alleging that this failure amounted to a failure to take a reasonable step on the part of Bedfordshire County Council and amounted to an unlawful disability discrimination. On 9th January 2008, the Tribunal rejected that claim. It is against that decision that this appeal is advanced.[3]It is common ground that the appellant (henceforth “Bedfordshire”) is not in breach of its duty under section 508B of the Education 1996 Act (the 1996 Act). It is, after all, transporting D to school and is willing to transport him back home at 3.00 pm. The question for SENDIST, accordingly, was whether or not Bedfordshire’s refusal to transport D home after Tech Club was unlawful as constituting discrimination within the terms of the Disability Discrimination Act 1995 (the 1995 Act).

The statutory provisions

[4]In relation to the relevant statutory provisions, I am, once again, content to adopt the Deputy Judge’s succinct summary, as set out in paragraph 1 of his judgment:- It is unlawful for a local education authority, when performing its functions under the 1996 Act, to discriminate against a disabled person. So much is clear from the combined effect of the 1996 Act and the 1995 Act. Discrimination will arise if an authority fails to take:
"such steps as it is reasonable for it to have to take to ensure that (b) disabled pupils are not placed at a substantial disadvantage in comparison with pupils who are not disabled" (section 28G(2)(b)). But the duty to take such steps does not extend to the provision of "auxiliary aids or services" (section 28G (3)(b)). Further, a local education authority: "also discriminates against a disabled person if – (a) it fails, to his detriment, to comply with section 28C; and (b) it cannot show that its failure to comply is justified..."
. I have stated the position briefly and have avoided reciting all the relevant provisions of the 1995 Act which are arranged in a less than helpful sequence of cross-referencing within sections 28A to 28F.[5]We were taken skilfully and swiftly through the relevant statutory provisions by leading counsel for Bedfordshire, Mr. Richard McManus QC, but speaking for myself (and for the purposes of deciding this appeal) the Deputy Judge’s summary is both accurate and sufficient.

The SENDIST decision

[6]SENDIST dismissed the parents’ claim. It concluded that the adjustment in transport requested was “an auxiliary aid or service” within section 28G(3)(b) of the 1995 Act and therefore within the exception to the duties set out in 28G(3) of the 1995 Act. The Tribunal’s reasoning appears from paragraphs C(ii), (iii) and D of the decision as follows:- (ii) It is clear to us, from the information given to us by Bedfordshire, and is common knowledge, that school transport involves specific arrangements for specific pupils and has significant resource implications upon a Local Authority. We can conclude from the information provided by Mr Scott, [the representative for Bedfordshire County Council] reinforced by the suggestions made by Ms Wayment [representative for the parents] as to how adjustments may have been managed, that the organisation of such provision requires considerable planning and detailed attention to each pupil's requirements. We can conclude that the outcome is provision of an auxiliary service to enable a particular pupil to attend school. Whilst this may be non-educational provision which might if a statement of special educational needs has been made be specified in Part 6, and exceptionally Part 3, we are aware that very often such matters are not specified and arrangements are made entirely in accordance with the Local Education Authorities policies. (iii) We conclude that the provision of transport, whether for educational or non-educational provision is an auxiliary aid and service and, therefore, within the exception to the duties set out in paragraphs 28C(2)(b) and 28G(3)(b) of the DDA. D For the reasons stated above we find that Mr and Mrs [D's] claim cannot succeed as it relates to the provision of auxiliary aid and services. Having heard the evidence we have considered whether the issues otherwise support their claim. It is not necessary for us to make a decision but based on what we have heard we consider that the adjustment expected and its implications are such that the reasons underlying Bedfordshire's refusal are material and substantial and the refusal is justified. Whilst Ms Wayment was resourceful in her suggestions for a process leading to changes, we consider that it is appropriate to take into account the significant implication and consequences of departure from a well thought out policy consistent with the duties upon the authority to provide for all its pupils in an efficient and inclusive manner as both a material factor and a substantial reason for this position. At the most basic level we find that payment of mileage to parents is and could not be distinguished from acceptance of a transport obligation and would foreseeably lead to direct arrangements. (emphasis supplied)[7]SENDIST was also plainly impressed by the cost argument. In paragraph 7 of its reasons it concluded:- Bedfordshire’s policy is operated by its transport managers who are ultimately responsible to an Assistant Director of Education. There is an appeal procedure, but Mr. Scott stated this relates to eligibility rather than details of transport. He stated that it was not possible to make an adjustment for after school clubs in (D’s) circumstances as this would lead to requests by others in a similar position which he calculated might require an additional expenditure of around £1 million above the £5.8 million currently spent on pupils with statements. Transport costs for pupils without statements amount to £14.5 million. He said that 1,150 pupils out of 2,800 with statements have transport.[8]I also note in passing that SENDIST made what is agreed to be an error when it stated in paragraph C (iii) above that “the provision of transport, whether for educational or non-educational provision is an auxiliary aid and service”. As the deputy Judge pointed out, the provision of transport was a function of the local educational authority under section 508B of the 1996 Act, and whilst, like him, I do not regard the error as determinative of the appeal, it is a factor which, in the overall equation, he was entitled to weigh when deciding that the case should be remitted.

The decision of the Deputy Judge

[9]The Deputy Judge held that the Tribunal had been wrong to conclude that the step requested by D’s parents as a reasonable adjustment amounted to a request for an “auxiliary aid or service”. His reasoning is contained in paragraphs 37 and 38 of his judgment where he deals primarily with justification:- The reasonableness of the requested adjustment and justification for the failure to make it 37. I accept that it appears from paragraph D that the Tribunal had in mind section 28(G) of the 1995 Act because they adopted the test laid down by that section, namely that the reason for the refusal must be "both material to the circumstances of the particular case and substantial". But, that said, the reasons given by the Tribunal founded upon(1) the existence of a policy to provide for all pupils in an efficient and inclusive manner and(2) the "implications and consequences" from departing from the policy. The existence of a well thought out policy will not necessarily constitute a substantial factor. Further care must be taken not to settle upon a policy for all children, including disabled children, which leaves disabled children at a disadvantage. There must be a substantial reason for the failure to make the adjustment in the particular case and in a particular case a departure from the policy may or may not be substantial. In any one case there may be issues as to whether the implication or consequences of departing from the policy can amount to a substantial reason for not adjusting the arrangements when, on one view, the direct consequences are, in financial terms, relatively insubstantial. The reasonableness of the failure to adjust must also be taken into account paying regard to the consequences of the failure in the particular case. Conclusion 38. I am not satisfied that all the relevant areas of fact have been considered in relation to justification. Nor that the Tribunal had sufficient assistance on the law when considering the issue. Having concluded that the Tribunal erred in holding that the requested "adjustment" was an "auxiliary aid or service" and having regard to their reasons for so concluding, which appear to me to have had some impact on their conclusion on their approach to and conclusion on justification, I am satisfied that this case must be remitted. It will be open to the respondent to raise and develop the issue whether D is or was at a substantial disadvantage by reason of the refusal. The grounds of appeal to this court and the argument for the appellant.[10]Two grounds of appeal are advanced. The first is that the Deputy Judge was wrong to find that the transport provision sought was not an “auxiliary aid or service”. The second is that the judge was wrong in his finding on justification. Both grounds were skilfully developed in argument. Mr. McManus courteously provided us with a copy of his speaking note, and there was a detailed skeleton argument from his junior, Mr. Paul Greatorex, who had argued the case before the deputy Judge.[11]The essence of the appellant’s argument on the first ground, as I understood it, was that the judge had not taken the full factual matrix into account, and had viewed the case only from D’s perspective. When viewed in the round, it had to be appreciated that what was being sought was, in reality, an additional service. As Mr. McManus graphically put it, if D was right, the school bus would become a thing of the past and would be replaced by a fleet of taxis. Bedfordshire’s duty, he argued, was limited to section 508B of the 1996 Act, and the provision of a taxi for D at a different time was an additional service. It did not cease to be such a service, it was argued, because D chose on after- school club days not to take his place on the school bus he shared with three other pupils.[12]In relation to justification, Bedfordshire’s policy, which was perfectly rational, did not enable provision to be made which would have significant financial implications for it as a local educational authority. An adjustment for D would mean adjustments for all those in D’s position. The cost would be prohibitive, as the evidence demonstrated. It could not be said to be irrational for Bedfordshire to conclude that it ought to treat all children in the same way.[13]I am very conscious of the fact that these arguments were developed with both skill and sophistication, and that what I have set out is but the barest and crudest summary. However, for the purposes of deciding this appeal, I do not think that further amplification is necessary.

The argument for the respondents

[14]For the respondents, Mr. David Wolfe criticised SENDIST for not grappling with the particular facts of the case, and in particular whether or not D was placed at a substantial disadvantage in not being able to access a particular after school club. Similar considerations applied to the question of justification. The Deputy Judge had thus been right to remit the case.[15]Mr Wolfe also relied on example 10.3A contained in the Code of Practice, which is in the following terms:- Home-school transport for disabled pupils in a local education authority (LEA) always leaves primary schools at 3.30pm. The LEA reviews its transport policy when it realises that disabled pupils who are dependent on taxis might be at a substantial disadvantage if they were not able to stay to after-school clubs. The LEA re-negotiates its contract with the taxi firm so that it is possible to specify later departure times. This is likely to be a reasonable adjustment that the LEA should make.[16]In relation to justification, Mr Wolfe again submitted that there were no findings by SENDIST specific to the particular case, including findings relating to the basis for, and implications of, the departure from the policy in the particular case.

Discussion

[17]My principal difficulty with Bedfordshire’s argument is that if the whole duty it owes to D is contained in section 508B of the 1996 Act, it is difficult to see how section 28G(2)(b) has any meaning or application to a disabled child in D’s position. As Rix LJ put the matter in argument, and as, I think, Mr. McManus was minded to accept, there must be situations in which a disabled child is “placed at a substantial disadvantage in comparison with pupils who are not disabled” and in which it is reasonable for the local educational authority to take steps to ensure that this does not occur. Thus – to take a concrete example - children who are not disabled can attend after school clubs and make their own way home afterwards. D cannot do so. Why, in principle, is he not thereby placed at a substantial disadvantage?[18]Mr. McManus sought to meet this difficulty in a number of ways, but in my judgment they were either semantic (the steps required were auxiliary) or fact dependent. Thus he made it clear that if the matter were returned to SENDIST there would be a lively dispute on the evidence as to whether D was placed at a substantial disadvantage by Bedfordshire’s refusal to provide after school transport.[19]It is at this point, in my judgment, that Bedfordshire’s argument breaks down. It does not seem to me possible for this court to hold that, as a matter of law, Bedfordshire must succeed, and that D’s application must fail. It is for this reason that I highlighted the words “cannot succeed” in paragraph D of SENDIST’s reasons.[20]In my judgment, on the factual matrix identified by SENDIST, the fact that D’s application could not succeed as a matter of law was not a conclusion that it was entitled to reach, and it follows that the judge was right to conclude that the case should be remitted for SENDIST to make proper findings of fact, and to apply the statutes to those findings. In my judgment it is at that point, and not before, that it would be open to this court to find, one way or the other, that discrimination had either been established or negatived.[21]This is not, in my judgment, an exercise in judicial side-stepping. This court lacks the material upon which it can properly decide the important legal issues underlying this appeal. This court is not a tribunal of fact: it is one of review. We are simply not in a position to form a view as to whether or not there has been discrimination in this case. We do not have any of D’s Statements of Special Educational Needs – let alone the most recent. We have no evidence from the school. The SENDIST decision was in January 2008: It is now 18 months later and D, who was 15 when SENDIST decided the case, is now 16 and a half. We have no knowledge of what has happened in the interim, and no knowledge of the current facts[22]In my judgment, the Deputy Judge was in a similar position, and was right to decide, as he did, that he lacked the factual basis to reach a proper conclusion. He was thus right to remit the case.[23]In these circumstances I would prefer, speaking for myself, to express no opinion on what may or may not constitute “auxiliary aids or services”, save to note that the primary dictionary definition of auxiliary in the Second Edition of the OED is “helpful, assistant, affording aid, rendering assistance, giving support or succour”. For the reasons I have already given, it does not seem to me that, as a matter of law, the adjustment sought on D’s behalf necessarily constituted an “auxiliary aid or service”, and like other members of the court, I struggle with the idea that something can be helpful or reasonable in one context and unhelpful or unreasonable in another. That, however, in my judgment, is an argument for another day.[24]In my judgment, the Deputy Judge reached the right conclusion, and I would, accordingly, dismiss the appeal. I would only add that I have read the judgment of Aikens LJ which follows, with which I agree. Lord Justice Aikens[25]I agree that this appeal must be dismissed and the matter remitted to a fresh SENDIST for re-hearing. Bedfordshire County Council, as the local education authority, has a duty to provide “travel arrangements” for eligible pupils within the terms of section 508B of the 1996 Act. With regard to “disabled pupils”, the council, as the local education authority, is obliged to take such steps as are reasonable for it to have to take to ensure that, in discharging its section 508B “transport” function, such “disabled pupils” are not placed at a “substantial disadvantage” in comparison with pupils who are not disabled: section 28G(2)(b) of the 1995 Act. But, it does not have to provide “auxiliary aids or services”: section 28G(3)(b). Even if there is a finding that the council’s decision not to provide transport is not reasonable within section 28G(2), the council may still be able to demonstrate that its failure to comply with its obligations is justified, within section 28B(2) and (7) of the 1995 Act.[26]The tribunal has made no proper findings of fact taking these four key questions in turn. I will state how I would characterise them in the hope it helps the fresh tribunal. The first is whether D, who is a disabled pupil, would be placed at a “substantial disadvantage” by comparison with other pupils who are not disabled if, because of lack of transport at a suitable time, D cannot have access to the school’s Tech Club. The second question only arises if the answer to the first question is “yes”. The tribunal will have to make a finding of fact on whether, to ensure that in discharging its function under section 508B, it would be reasonable for the council to take steps to provide transport for D to enable him to travel home after the Tech Club and so not place him at a substantial disadvantage in comparison with other pupils who are not disabled.[27]It is in the context of that second question, that the tribunal will have to deal with the point that the council does not have to “provide auxiliary aids or services”, within section 28G(3) of the 1995 Act. I, for my part, think it clear that this provision means that the council is not required to provide “auxiliary aids and services” in respect of the particular function to which section 28G(2) of that Act applies. In this case, that function must be the “transport” function within section 508B of the 1996 Act. If that is so, then it seems to me that if the tribunal were to find(a) that D would be placed at a substantial disadvantage in not having access to the Tech Club because he does not have transport home; and(b) it is reasonable for the council to take such steps so as to ensure that, in discharging its transport function under section 508B of the 1996 Act, D is not placed at such a substantial disadvantage, it will then have to consider the facts about what transport will be needed and the circumstances in which it is to be given in order to decide whether that falls within the term “auxiliary services” within section 28G(3)(b) of the 1995 Act. (I doubt very much whether anything to do with the transport to be provided could amount to an “auxiliary aid”, but perhaps that must await the fact finding exercise before a final view is taken on it).[28]Only if the tribunal comes to the conclusion that(a) D would be placed at a substantial disadvantage in not having access to the Tech Club because he does not have transport home;(b) it is reasonable for the council to take such steps so as to ensure that in discharging its transport function under section 508B of the 1996 Act, but it failed to do so; and(c) what the council had to provide did not constitute “auxiliary aids or services”, will it have to go on to the last fact finding area. That is whether the council’s failure to provide the transport services was “justified”, within the meaning of section 28B (2) and (7) of the 1995 Act. Lord Justice Rix[29]I agree with both judgments.