“T” v (1) THE SPECIAL EDUCATIONAL NEEDS TRIBUNAL (2) WILTSHIRE COUNTY COUNCIL [2002] EWHC 1474 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
[2002] EWHC 1474 (Admin)Case No Case No: CO/1105/2002Venue Royal Courts of Justice, Strand,, London, WC2A 2LL
Between
“T”Claimant(1) THE SPECIAL EDUCATIONAL NEEDS TRIBUNAL (2) WILTSHIRE COUNTY COUNCILDefendant
Before
Mr Justice RichardsMr John Friel (instructed by Bobbetts Mackan) for the ClaimantMiss Elisabeth Laing (instructed by the Treasury Solicitor) for the First DefendantDate 18 July 2002
[1]Mr Justice Richards: This is an appeal against a decision of a Special Educational Needs Tribunal issued on 4 February 2002. The appellants, to whom I shall refer as "Mr and Mrs T", are the parents of a 5-year old boy whom I shall call "J". J is accepted to have special educational needs. He was diagnosed in December 2000 as functioning at the high end of the autistic spectrum. A statement of special educational needs was made by the local education authority, Wiltshire County Council, on 7 September 2001. In part 4 it provided that J should attend the North Wilts Centre for Autism based at the Charter School, Chippenham. Mr and Mrs T appealed to the Tribunal, opposing the placement specified in part 4 of the statement and contending that J should be taught at home using the "Lovaas" principle, with phased entry into mainstream school. The Tribunal dismissed the appeal in respect of part 4. It is that decision against which Mr and Mrs T now appeal to this court, to which an appeal lies on a point of law. The appeal is opposed by the Tribunal. The local education authority has played no part in the proceedings before this court.[2]The Lovaas programme, which takes its name from a Dr Lovaas, is an applied behavioural analysis programme specifically designed for autistic children, especially those whose autism masks learning difficulties. It starts with teaching at home, followed by gradual integration into mainstream school.[3]Mr and Mrs T's view that J needed a programme of this kind had been expressed forcefully to the local education authority, for example at a meeting on 26 July 2001. The point was explained clearly and cogently in the notice of appeal to the Tribunal, in which Mr T stated:
“… I feel that the most appropriate provision is a home-based programme, using applied behaviour analysis, under the direction of an appropriately trained consultant, using a team of tutors who receive training and reviews on a three-weekly basis. …. I am committed to the principle of inclusive education for children with special educational needs. Attendance at a special autistic centre, even on the site of a mainstream primary school, does not match my understanding of what constitutes inclusive education. I am also worried that [J] needs role models amongst his peers, who demonstrate normal, rather than autistic behaviour. Being educated in a small centre, amongst other autistic children, is likely to confirm, rather than challenge his autistic behaviour. It is my view that [J] needs the intensity and rigour of a highly structured behavioural intervention, which is co-ordinated by a home-based team, to ensure complete consistency. This will allow him to develop the social, behavioural, cognitive and linguistic skills that will enable him to access the early stages of the National Curriculum successfully. Once these skills are established, then a phased integration into primary school, using ABA trained tutors as shadows, would be undertaken. The Statement provided by the LEA does not take sufficient account of the need for an early behavioural intervention for my son ….”
[4]The strength of their views was such that Mr and Mrs T in fact arranged for J to start on the Lovaas programme at home in September 2001. The Tribunal had the benefit of a progress report dated 2 December 2001 which showed that J was already responding very well to the programme. Evidence was also given that if J continued on the Lovaas programme until September 2002 he could then begin to be introduced to mainstream school, leading to full-time but supported attendance at mainstream school from September 2003 and, it was envisaged, attendance without support from September 2004.[5]Mr and Mrs T sought an order from the Tribunal to give effect to those arrangements, with funding for a total of 30 hours a week: they indicated that they would provide the remaining 10 hours a week without payment.[6]The local education authority's representative on the appeal stated that the authority did not regard the Lovaas programme as intrinsically unsuitable, but argued that the authority's own proposal amounted to suitable and appropriate provision. Detailed evidence was given about the proposed placement at the North Wilts Centre for Autism. The Centre was said to be part of the Charter School itself, which meant that the opportunities for inclusion were considerable. The Centre's aim was that the children should be integrated as much as possible.[7]In its decision the Tribunal, having set out the facts at length, expressed its conclusions and reasons as follows.[8]First, at para 22, it recorded that at the outset of the hearing the parties were invited to consider section 319 of the Education Act 1996 and that the parties agreed that the section was applicable to this case. Section 319(1) is in these terms:
“Where a local education authority are satisfied that it would be inappropriate for - (a) the special educational provision which a learning difficulty of a child in their area calls for, or (b) any part of such provision, to be made in a school, they may arrange for the provision (or, as the case may be, for that part of it) to be made otherwise than in a school.”
[9]The Tribunal next stated that, given the parties' agreement on the applicability of section 319, the first critical issue for decision was whether the local education authority's proposal was appropriate for J (para 23). It stated that it had considered the evidence carefully and that it had come to the conclusion that J's placement at the Centre would constitute appropriate provision (paras 24-25). It is important to note that that conclusion is not challenged.[10]The Tribunal next turned to Mr and Mrs T's proposal. It recorded a submission by Mr and Mrs T's solicitor, Mr Cox, that the Tribunal should follow the parental preference because of section 9 of the Education Act 1996 and the fact that the Tribunal was faced with two proposals which were at least equally appropriate and cost neutral (para 26). That submission was based, as indicated in para 27, on the decision of the Court of Appeal in C v. Buckinghamshire County Council [1999] ELR 179, in particular observations of Thorpe LJ, to which I shall return, about the part that parental preference has to play in the assessment of the appropriate placement.[11]The Tribunal went on:
“28. We accept that in this case, both proposals can properly be regarded as 'appropriate', and having been given the evidence about cost of the two proposals and heard the argument about that, we accept that there is little difference between the cost of the rival proposals having regard to the LEA's duty to provide transport under Section 509 of the Act. 29. However, we distinguish the decision in C v. Buckinghamshire on the basis that the dispute in that case was between placement in a mainstream school and an independent school. Section 319 does not apply if provision in school is appropriate, as we have found it to be. 30. In those circumstances, having taken into account the parents' views as required by section 9, we dismiss [Mr and Mrs T's] appeal with regard to Part 4.”
[12]In broad terms the case for the appellants is that the Tribunal failed to have proper regard to parental preference, erred in its approach to the decision in C v. Buckinghamshire County Council and was in breach of Article 2 of Protocol 1 to the European Convention of Human Rights. Before I examine that case in greater detail, however, it is convenient to summarise the statutory framework. Statutory framework[13]Statements of special educational needs are governed by section 324 of the Education Act 1996. Subsection (1) lays down the circumstances in which an LEA is required to make and maintain a statement. Subsection (2) provides that the statement shall be in such form and contain such information as may be prescribed. Subsection (3) provides that, in particular, the statement shall give details of the authority's assessment of the child's special educational needs and shall specify the special educational provision to be made for the purpose of meeting those needs, including the particulars required by subsection (4). It is subsection (4) that is particularly pertinent. It reads:
“The statement shall - (a) specify the type of school or other institution which the local education authority consider would be appropriate for the child, (b) if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement, and (c) specify any provision for the child for which they make arrangements under section 319 and which they consider should be specified in the statement.”
[14]Subsection (4)(b) refers to Schedule 27. The schedule is accepted to have no application to this case, but it is relevant to the reasoning in the case of C v. Buckinghamshire which the Tribunal distinguished. It provides inter alia that where a parent expresses a preference as to the maintained, grant-maintained or grant-maintained special school at which he wishes education to be provided for his child, the local education authority shall specify the name of that school in the statement unless it is unsuitable or attendance at the school would be incompatible with the provision of efficient education or the efficient use of resources (para 3(1) and (3)).[15]Subsection (4)(c) refers to section 319. I have already quoted section 319(1) when setting out the Tribunal's conclusions. It specifies the circumstances in which an LEA may arrange for provision to be made otherwise than in a school. Section 319(2) adds nothing material.[16]The only other provision to which I need refer is section 9 of the 1996 Act which is concerned with parental preference. It reads:
“In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State and local education authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.”
The case for the appellants[17]Mr Friel referred first to a passage in London Borough of Bromley v. SENT [1999] 260 at 296A-B in which Sedley LJ, in relation to the question whether provision was educational or non-educational, stated that it "is not made the subject of any statutory prescription precisely because it is for the local education authority, and if necessary the SENT, to exercise a case-by-case judgment which no prescriptive legislation could ever hope to anticipate". The purpose of that citation was to establish that on an appeal the Tribunal stands in the shoes of the local education authority and must determine for itself whether a particular form of provision or placement is "appropriate". I did not understand the basic point to be in dispute.[18]Secondly, Mr Friel submitted that section 9 of the 1996 Act applies to a local education authority in the exercise of all its powers and duties. That was common ground.[19]Thirdly, he submitted that section 9 is relevant in reaching a decision under section 319. He relied on what was said about section 9 in C v. Buckinghamshire . In that case a statement was made in respect of a child who was being educated at the time in an independent boarding school. The child's parents wanted him to remain at that school, but the local education authority specified a mainstream secondary school. The tribunal found in favour of the authority. In coming to its decision it concluded that the general principle of adherence to parental wishes in section 9 of the 1996 Act was qualified by the contents of para 3 of Schedule 27 which limited parental choice of school to the state-sector schools specified in that paragraph. On appeal Laws J held that the tribunal had erred in that view but that a correct application of the section 9 principle would not have made any difference to the tribunal's decision. The Court of Appeal upheld the decision of Laws J.[20]Among the passages to which Mr Friel referred are the following from the judgment of Sedley LJ: “The global effect … is that in special educational needs cases a duly expressed parental preference for a state-sector school is binding in the absence of a disqualifying factor, while an expressed preference for an independent school is to be considered, together with the reasons for it, in the light of the general principle in section 9. … … For a child with special educational needs the statutory scheme is very different. A series of quite onerous obligations comes to rest upon the local education authority, calling for a series of difficult decisions which are plainly intended by Parliament to be geared so far as practicable to the child's individual needs. The parents' voice is heard in this process if anything more clearly than in the ordinary school selection process; but where Sch 27, para 3 does not make parental choice determinative, it is because the child's needs or the efficient use of resources point elsewhere. If the difference between the parents and the local education authority cannot be resolved by negotiation, the tribunal is there to resolve it. It is likewise required by the Act to follow a process of inquiry and reasoning directed to meeting the child's needs, which both values and limits parental choice. In such a process, the reasons for the parental choice are of the first importance; the bare fact of parental choice, which in the nature of things is simply a function of their reasons, is logically of only marginal significance. … … I see no basis in the statute for requiring a tribunal which finds that two schools are adequate but that one is markedly more suitable than the other to the child's special needs to ignore the difference and to abdicate its judgment in favour of the parents. To do so, since a s.9 choice may lawfully include an independent school, would be to extend the mandatory range of parental choice beyond that to which it is explicitly limited by Sch 27, para 3(1)” (185G-H, 187G-188A and 188E-F).[21]Reliance was also placed on the following extract from the judgment of Thorpe LJ, which includes the passage set out in the Tribunal's decision as the basis for the submission advanced on behalf of Mr and Mrs T before the Tribunal: “… [I]t is clear from s.324(4)(a) of the Education Act 1996 that the LEA has a duty to ensure that a child with special educational needs is placed at a school that is 'appropriate'. It is not enough for the school to be merely adequate. To determine if the school is appropriate, an assessment must be made both of what it offers and what the child needs. Unless what the school offers matches what the child needs, it is unlikely to be appropriate. The assessment of the child's needs necessarily imports elements of a welfare judgment. If there are two schools offering facilities and standards that exceed the test of adequacy, then I would hope that ordinarily speaking the better would be judged appropriate, assuming no mismatch between specific facilities and specific needs. Parental preference obviously has a part to play in the assessment of what is appropriate. In a case where there appears to be parity of cost and parity of facilities, parental preference may be the decisive factor. But it would be wrong to elevate parental preference to the height that [counsel for the parents] appeared to contend for in his submissions. A bare preference might be ill-informed or capricious. In practice, parental preference may mean a fair opportunity to the parents to contend by evidence and argument for one school in preference to another. Therefore, preferences must be reasoned to enable the parent to demonstrate that they rest on a sound foundation of accurate information and wise judgment” (189D-H).[22]Mr Friel next submitted that the Tribunal's decision was erroneous in law in that(i) section 319 gives a discretion to decide what is appropriate and the Tribunal takes on that discretion on an appeal,(ii) the Tribunal was bound by section 9 to take parental wishes into account,(iii) the decision in C v. Buckinghamshire was not confined to circumstances involving a contrast between an independent school and a state school, and(iv) the Tribunal could not have taken into account the parents' wishes if it decided, as it did, that C v. Buckinghamshire was irrelevant to the situation and that section 319 did not apply if the provision in school was appropriate.[23]In an elaboration or alternative formulation of those submissions, Mr Friel contended that the Tribunal erred in failing to have regard to parental preference in deciding what was appropriate; or, having decided that both proposals were appropriate, it erred in failing to go on to consider whether one proposal was more appropriate than the other. The observations concerning parental preference in C v. Buckinghamshire were general in nature and the Tribunal was wrong to distinguish them on the basis that section 319 did not apply. The effect of the Tribunal's reasoning was to eliminate section 9 as a relevant factor, notwithstanding that the Tribunal claimed to have taken the parents' wishes into account. Moreover the Tribunal failed to have proper regard to the needs and best interests of J himself.[24]Mr Friel advanced separate but related submissions under the Human Rights Act 1998 and the Convention. They were based on Article 2 of Protocol 1, which provides:
“No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the state shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”
[25]The submission advanced was, in essence, that(i) Mr and Mrs T's belief that the Lovaas programme is essential to J's development and eventual integration into mainstream education is a "philosophical conviction" within Article 2 of Protocol 1 (such a belief being no less important than a parental conviction that a child should not be subjected to corporal punishment, which was held in Campbell and Cosans v. UK (1982) 4 EHRR 293 to be a philosophical conviction);(ii) the Tribunal was required to give weight to that conviction (see R (on the application of K) v. London Borough of Newham [2002] EWHC 405 (Admin) per Collins J at paras 38-44), yet failed to do so; and/or(iii) the Tribunal should have interpreted section 9 of the 1996 Act so as to conform with Article 2 of Protocol 1, yet failed to do so. The case for the Tribunal[26]Miss Laing submitted that the answer to the first part of the appellants' case lies with section 324(4)(c) and its reference across to section 319. The power to arrange for provision outside school arises only under section 319; and under that section it arises only if the authority is satisfied that it would be inappropriate for provision to be made in a school. There is no question of balancing or of determining whether provision in school is more appropriate than provision outside school. If, as was the case here, the view is taken that it would be appropriate for provision to be made in school, there is simply no power to arrange for provision outside school. In those circumstances the legislature itself has decided in favour of provision in school. That was the view of the statute taken by the Tribunal and the reason why it held at paragraph 29 of its decision that section 319 did not apply in this case.[27]Section 9, submitted Miss Laing, lays down a general principle to which the authority and the Tribunal must have regard, not a duty to comply in all cases with a parent's wishes (see Watt v. Kesteven County Council [1955] QB 408 and Cumings v. Birkenhead Corporation [1972] Ch 12). That was the approach adopted by the Court of Appeal in C v. Buckinghamshire . It is clear from the passages cited above that parental wishes were held to be determinative only to the extent that the statute expressly so provides, as in the circumstances laid down by paragraph 3 of Schedule 27. The case itself was concerned with a decision between two schools in circumstances falling outside paragraph 3 of Schedule 27. In that context the court held that a reasoned parental preference (and in particular the reasons rather than the mere preference) has a part to play in deciding which was the more appropriate but did not have the determinative effect for which counsel for the parents was contending. The court's reasoning on that point does not apply in the present case, however, since section 319 precludes a comparative exercise. Once it was found in this case that provision in school was appropriate, there was no power to arrange for provision outside school and no question could arise of choosing between them. Accordingly the Tribunal case was right to distinguish C v. Buckinghamshire on the basis that it concerned a dispute between two school placements (not, as here, between a school placement and a non-school placement).[28]That the Tribunal had careful regard to the preference expressed by Mr and Mrs T and to the reasons for that preference is clear, it was submitted, not only from the express statement at paragraph 30 that their views have been taken into account but from the structure of the decision as a whole. The Tribunal looked closely at both proposals and at the reasons for them, reaching the view that they were both appropriate, before moving to its conclusion that section 319 did not apply and that the appeal fell to be dismissed.[29]In relation to the Convention issues, Miss Laing took the threshold point that it was not open to the appellants to raise these points on appeal because they were not canvassed before the Tribunal. If an argument based on Article 2 of Protocol 1 is to be advanced on appeal in the High Court, it must have been advanced and fleshed out before the Tribunal. Unless the Tribunal is presented with a formulated argument explaining why the parents are saying that the local education authority's proposal fails to respect a religious or philosophical conviction of the parents, it cannot be expected to deal with it.[30]In support of those submissions Miss Laing relied on L v. Herefordshire and Worcestershire County Council [2000] ELR 375 per Carnwath J at 383F-384E and S v. Hackney London Borough Council [2001] EWHC Admin 572, [2002] ELR 45 per Collins J at 55 paras 42-43. In particular, in the Herefordshire and Worcestershire case Carnwath J said this in relation to a point under Article 2 first taken in oral argument before the court: “If that were to be put forward as a serious issue it would obviously be necessary for the tribunal to have evidence that the authority's proposals were indeed contrary to the parents' religious and philosophical convictions. There was no such evidence in this case, and no suggestion before the tribunal that this was a point which they needed to consider. In my view, it is far too late to raise it at this stage of an appeal on a point of law ….” (383G-H).[31]In B v. London Borough of Harrow [1998] ELR 351 the point raised on appeal to the High Court was whether the reference to the efficient use of resources in para 3(3)(b) of Schedule 27 to the 1996 Act included the resources of another authority. The appellant was allowed to raise the point although it had not been advanced before the Tribunal. Giving the first judgment in the Court of Appeal, Sir Christopher Staughton stated (at 356B-C):
“The procedure before the special educational needs tribunal is meant to be informal, and we are told by Otton LJ that representation is discouraged. To my mind it would be quite wrong to reproach [the appellant] for not having raised this argument before the special educational needs tribunal or to penalise her for not having done so. Furthermore, this is a case of general importance and it may well set a precedent. Now that the parties have come this far, it seems to me to be in the public interest that we should decide it, rather than that we should say that the judge should never have allowed it to be raised in the first place.”
[32]Miss Laing sought to distinguish that decision on the grounds that in the present case the appellants were represented before the Tribunal by a solicitor, Mr Cox, and the point that is sought to be raised is not a pure issue of statutory construction but whether a parental preference for a particular type of education amounts to a philosophical conviction.[33]Even if the point is allowed to be raised, it was submitted that it should fail for two reasons: the parents' preference did not amount to a philosophical conviction, and in any event the Tribunal did give it due weight.[34]As to the first of those reasons, Miss Laing's submission was that a practical view about the educational methods that will best meet the current needs of a particular child is not by any stretch of the imagination a philosophical conviction as described in Campbell and Cosans v. UK at 304-5 para 36:
“In its ordinary meaning the word 'convictions', taken on its own, is not synonymous with the words 'opinions' and 'ideas', such as are utilised in Article 10 of the Convention, which guarantees freedom of expression; it is more akin to the term 'beliefs' (in the French text: ' convictions ') appearing in Article 9 - which guarantees freedom of thought, conscience and religion - and denotes views that attain a certain level of cogency, seriousness, cohesion and importance. As regards the adjective 'philosophical', it is not capable of exhaustive definition and little assistance as to its precise significance is to be gleaned from the travaux preparatoires . The Commission pointed out that the word 'philosophy' bears numerous meanings: it is used to allude to a fully-fledged system of thought or, rather loosely, to views on more or less trivial matters. The Court agrees with the Commission that neither of these extremes can be adopted for the purposes of interpreting Article 2: the former would too narrowly restrict the scope of a right that is guaranteed to all parents and the latter might result in the inclusion of matters of insufficient weight or substance. Having regard to the Convention as a whole including Article 17, the expression 'philosophical convictions' in the present context denotes, in the Court's opinion, such convictions as are worthy of respect in a 'democratic society' and are not incompatible with human dignity; in addition, they must not conflict with the fundamental right of the child to education, the whole of Article 2 being dominated by its first sentence. The applicants' views relate to a weighty and substantial aspect of human life and behaviour, namely the integrity of the person, the propriety or otherwise of the infliction of corporal punishment and the exclusion of the distress which the risk of such punishment entails. They are views which satisfy each of the criteria listed above; it is this which distinguishes them from opinions that might be held on other methods of discipline or on discipline in general.”
[35]In relation to the obverse situation, namely a belief that corporal punishment should be available as a disciplinary sanction, it was held in R (on the application of Williamson) v. Secretary of State for Education and Employment [2001] EWHC Admin 960 , [2002] ELR 214 that such a belief did not amount to a philosophical or religious conviction. Miss Laing relied in particular upon the reasoning of Elias J at para 44, which she submitted can be applied equally to a belief that one form of education is better suited than another to a child's needs:
“It is envisaged that it will be needed only in rare cases of relatively serious indiscipline. The parents wish it to be administered in such circumstances because they consider it to be a more efficacious method of securing appropriate discipline. I do not think that it is appropriate to describe a belief that one measure is more effective than another as a philosophical or religious conviction even if the reason for holding that belief is that it is supported by a religious text.”
[36]As to the second of her reasons why the claim under the Convention should fail, Miss Laing accepted that there is a requirement to give due weight to a philosophical conviction of the parents, as shown by the judgment of Collins J in R (on the application of K) v. London Borough of Newham upon which Mr Friel relied. But she submitted that that is just what the Tribunal did in this case in relation to the parents' expressed preference and the reasons for it. To go further would be to subvert section 319, by which Parliament has determined, probably by reference to resources, the circumstances in which a particular type of educational provision is to be available (and nothing in Article 2 prevents the State from making such a choice). Conclusions[37]In my judgment Miss Laing's submissions provide a complete answer to the case advanced on behalf of the appellants.[38]In relation to the non-Convention issues I would express my conclusions as follows: i) There is no challenge to the Tribunal's conclusion that the provision proposed by the local education authority and specified in part 4 of the statement was appropriate. It follows that the conditions laid down in section 319 were not met and that there was no power under section 319 to arrange for provision otherwise than in a school. Nor did any such power exist elsewhere in the 1996 Act. The part 4 particulars are governed by section 324; and if section 319 is inapplicable, then the requirement under part 4 is to specify a school or other institution. That meant that the proposal put forward by Mr and Mrs T for provision in the form of the Lovaas programme, which involved teaching at home for the first full year and gradual integration into school thereafter, was not an available option. That was plainly the Tribunal's process of reasoning, albeit that it was expressed in a somewhat compressed manner. In my view the reasoning was correct. ii) The Tribunal did have due regard to the parents' views, as it said it did. Section 9 of the 1996 Act did not require the Tribunal to do more. What is laid down by section 9 remains a general principle to be taken into account, rather than having any greater force. I reject the suggestion by Mr Friel in reply that Watt v. Kesteven County Council [1955] QB 408 and Cumings v. Birkenhead Corporation [1972] Ch 12, since they predated the substantial reforms reflected in the 1996 Act, are outdated. In my view the approach of the Court of Appeal in C v. Buckinghamshire was in line with what was said in those earlier cases about the effect of section 9, albeit that in certain circumstances specific effect is given to parental preference by express provisions of the 1996 Act (i.e. para 3 of Schedule 27). iii) It follows from the foregoing that in my view the Tribunal was right to distinguish C v. Buckinghamshire as it did. The court in that case was dealing with a dispute between two forms of provision at school, not with a dispute between school and non-school provision in circumstances where, as here, the school provision is appropriate and there is therefore no power under section 319 to make arrangements for non-school provision. iv) I also reject Mr Friel's submissions that the Tribunal failed to have regard to what was said in C v. Buckinghamshire about the importance of the child's needs and best interests. The Tribunal had proper regard to those matters within the legislative framework. The Tribunal's reasoning was clear and sufficient.[39]My conclusions in relation to the Convention issues are these: i) It is too late to raise an argument of this kind for the first time on appeal to the High Court on a point of law. Whether a person's beliefs have the necessary characteristics to amount to a philosophical or religious conviction within Article 2 of Protocol 1 is a matter that ought to be explored in the first instance by the tribunal of fact. There was some relevant evidence before the Tribunal in this case, but it is almost certain that the Tribunal would have probed it further had the issue been raised; and in any event the Tribunal cannot sensibly be criticised for its omission to deal with the issue. Accordingly I think it right to follow the approach in L v. Herefordshire and Worcestershire County Council and S v. Hackney London Borough Council . I accept that, as submitted by Mr Friel in reply, B v. London Borough of Harrow does not appear to have been cited in those later cases, but in my view it is distinguishable on the grounds put forward by Miss Laing: in the present case the appellants were represented before the Tribunal by a solicitor (whose witness statement shows him to have been highly competent, whether or not an expert in the field) and the point sought to be raised is not a pure issue of pure statutory construction (nor, I would add, is it one of the same general importance). The factors that told in favour of allowing the point to be ventilated and decided in B v. London Borough of Harrow are absent in this case. ii) Since the matter was fully argued before me, however, I think it right to indicate briefly how I would decide it if it were open to the appellants to raise it now. For that purpose, of course, I must base myself on the available evidence and must disregard the fact that the evidence would have been explored further if the issue had been ventilated before the Tribunal. iii) I reject the contention that Mr and Mrs T's views as to the appropriate form of educational provision for J amount to a philosophical conviction within Article 2 of Protocol 1. The criteria laid down in Campbell and Cosans v. UK are far from clear-cut and the matter is not susceptible of precise analysis. But if in this case one examines the reasons for the parents' preference for the Lovaas programme, the preference can be seen to rest on a judgment that such a programme is more likely to meet J's educational needs and to enable J to be integrated effectively into mainstream schooling (and in fact, as Mr T stated in the grounds of appeal to the Tribunal, it is to the principle of inclusive education that he is committed). That seems to me to fall far short of a philosophical conviction in favour of the Lovaas programme. It also seems to me to fall within the scope of Elias J's reasoning in R (on the application of Williamson) v. Secretary of State for Education and Employment . iv) There was no breach of Article 2 of Protocol 1 even if the parental preference did amount to a philosophical conviction. The Tribunal gave due weight to that preference, to the extent permitted by section 319. Mr Friel did not contend that the section itself was incompatible with the Convention; but in any event I take the view that Miss Laing is right in her submission that the section represents a permissible legislative choice. v) Likewise the Tribunal’s interpretation and application of section 9 of the 1996 Act accorded with Article 2 of Protocol 1.[40]For those reasons I conclude that the appeal is without merit and must be dismissed.

Cited in 6 later judgments