“which will be maintained by the Authority and reviewed every year, to ensure that it remains appropriate. Whilst the review will be co-ordinated by the head teacher of Andrew’s school, your full involvement will be invited. In accordance with the amended statement, special educational provision will be made for Andrew at Education Other than at School, notschool.net where a copy of the statement will also be kept on file.”
“I am very worried that if this is not dealt with as a matter of great urgency, Andrew will miss his opportunity for LEA funding; I cannot let this happen as this is the only opportunity available to Andrew and we really need to recoup the lost years of his time with notschool.net. I do hope you will be able to assist Andrew to the full capacity of your role as Statementing Officer; for as I say, after much exhausted searching by myself and Jane Cox, there is nothing else available for Andrew.”
“I would like to make it clear that my wish is for Andrew to remain in full time school education beyond the end of his placement at notschool.net on the 30th June. I would therefore like our meeting on 10 July to be a Review Meeting to discuss options and steps that can be taken with this in mind. ……. Condover Horizon School/College has several 16-18 year old LEA funded students commencing study very shortly; their places are funded by their respective LEAs due to the fact that Condover Farleigh is a 6th Form School as well as having FE College status.”
“I had not replied earlier to your letter of22 June 2006 , since it seemed appropriate to await the outcome of your meeting with officers on10 July 2006 , at which the issues raised in your letter were to be discussed. I believe that the situation was clearly explained to you at the meeting, but as requested I am now replying to your letter. Following your withdrawing Andrew from Hartlebury School, the Authority arranged for him to receive education, via notschool.net, otherwise than in school. Under normal circumstances such provision would cease when a pupil attains statutory school leaving age and in Andrew’s case his statement would have lapsed automatically at the end of June 2005, given that he was over compulsory school age, not a registered pupil at a school and due to go to college in September 2005. Under these circumstances the authority was not required to formally cease to maintain the statement, since all parties were agreed on Andrew’s transfer to college. In the event, Andrew chose not to take the place at Farleigh College [meaning Farleigh Somerset] and it was agreed he could continue with notschool.net for a further year only, during which time he would work towards taking up his college place. In order to enable Andrew to continue with notschool.net for the extra year, it was a requirement for his statement to be maintained for the duration of his accessing that provision. On30 June 2006 however, when notschool.net ceased to provide for him Andrew was over compulsory school age, not a registered pupil at the school and was deemed to have left school. He had therefore ceased to be the responsibility of the authority for the purpose of education and his statement lapsed automatically.”
“7. Ms Smith has found alternative provision at a school with joint status as an FE College and is looking for the LEA to fund that for the next year 2006/7. 8. The LEA maintain that Andrew had ceased to be the responsibility of the Authority after30 June 2006 and his statement had automatically lapsed at that time as he was then over compulsory school age and was not a registered pupil at a school and indeed was deemed to have left school. 9. We considered the representations made by the LEA and by Levenes Solicitors for Ms Smith. 10. We appreciate that Andrew was not on the roll of the school when the funding for his statement finished in June 2006; nevertheless we feel that the LEA had taken responsibility for him during the two years that he was learning with notschool.net. We therefore regard the letter of17 July 2006 as containing a decision to cease to maintain Andrew’s statement, and although it did not contain the statutory information about the right of appeal, Ms Smith had appealed within two months of that date. 11. We are aware that the circumstances of this appeal are unusual but we feel that in the interests of justice Ms Smith should be allowed to continue her appeal. We are content that Andrew is a “child” within the definition of the Act and there is scope for a further year for him to be funded by the LEA within a statement. 12. We therefore determine to dismiss the application to strike out.”
“We took careful account of the arguments put forward by the parties but we did not find any grounds for reviewing our decision of 31 October. We concluded that there was jurisdiction to hear the appeal because (a) at the relevant date i.e.30 June 2006 , Andrew was a “child” within the meaning of the Act. He was not yet 19 years old and on the basis of the decision in the Essex case, the LEA could not escape responsibility for him by saying that on 17 July he was not on the roll of a school. (b) the LEA had implicitly accepted responsibility for Andrew up to 30 June by funding notschool.net and we regarded their responsibility as falling under Section 321(3) (b) of the Act. (c) The LEA was obliged to make a formal decision to cease to maintain Andrew’s statement under Schedule 27 of the Act. Paragraph 8.121 of the Code of Practice is clear that a statement cannot simply lapse where there has been no agreement about further education. It is irrelevant the LEA waited 17 days before writing to Miss Smith. (d) The Oxfordshire case was decided under previous legislation (Education Act 1993 ) that did not include the formal requirement for an LEA to cease to maintain a statement. It can therefore be distinguished from the facts of the present case. (e) The letter of 17 July was, in our view, designed to inform Ms Smith that Andrew’s statement would not be maintained. It should have been couched in the formal language required by law that would have included the parental right to appeal against the decision……. 8. Having then determined there were no grounds on which to review our decision, we decided to dismiss this application to review. The case should go to a full hearing with both parties present.”
“41. The effect of the local education authority’s position in the present case is thus: if the definition of “child” in Section312 (5) is conclusive, the applicant never acquired an enforceable right of appeal to the Tribunal. The question thus is: whether, in the context in which the applicant found herself, the LEA’s notice of intention to cease to maintain the statement given, as it was after JWS ceased to be a pupil at the ….school, effectively deprived her of her statutory right of appeal to the Tribunal? That does not provide the full answer to the question since Section 579 may yet come into play. 42. In the circumstances I have described, the question is: whether or not the context, as I have described it to be, requires that the words “child” be given some other meaning than the narrow definition in Section 312(5) or that contained in 579 itself? Noting, as I have, that the definition in Section 312(5) is inclusive rather than exclusive, I am driven to conclude that the context of the present case required some other definition to be given to the word “child” than that contained either in Section 312 or Section 579. Any other result would have to be rejected as being so unreasonable that Parliament and the relevant Secretary of State cannot have intended the result for which the LEA contended and the Tribunal decided. 43. “Child” in the circumstances of the present case, must mean a child who was the subject of a statement of the special educational needs at the time when the local education authority decided to given notice to determine to cease maintaining that statement. The order of the Tribunal is quashed.”
“Nevertheless we feel that the LEA had taken responsibility for him during the two years that he was learning with notschool.net. We therefore regard the letter of17 July 2006 as containing a decision to cease to maintain Andrew’s statement, and although it did not contain the statutory information about the Right of Appeal, Mrs Smith had appealed with two months of that date.”
“…..may not …cease to maintain a statement except in accordance with paragraph …11.”
“Sub-paragraph (1) does not apply where the local education authority – (a) ceased to maintain a statement for a child who has ceased to be a child for whom they are responsible”
“Where parents want their child to remain at school post 16, but the LEA considers that the young person’s special educational needs would be better met in a further education institution, the LEA cannot know whether the child still requires a statement until it has contact the FE institution in question and confirmed that it is both able to meet the young person’s needs and has offered a place. The LEA should satisfy itself on both counts before taking formal steps to cease to maintain the young person’s statement. At that time, the LEA must also notify the parents of their right of appeal to the Tribunal and the time limits for lodging the appeal, the availability of parent partnership and disagreement resolution services, and the fact that the parent’s right of appeal cannot be affected by any disagreement resolution procedure. It is not sufficient for LEAs to have a general expectation that an FE institution should be able to meet a young person’s needs.”