X City Council v SENDIST & Ors [2007] EWHC 2278 (Admin)

Case No CO/6905/2007[2007] EWHC 2278 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 12th September 2007
Strand
London WC2A 2LL
B e f o r e:
MR JUSTICE UNDERHILL
Between
X CITY COUNCILClaimantv
Between
SENDISTDefendantABMBSecond DefendantsGInterested Party
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Mr J Auburn (instructed by the Legal Department for X City Council) appeared on behalf of the Claimant for The Respondents were not representedMr D Wolfe (instructed by the Treasury Solicitor) appeared for Interested Party, G
J U D G M E N T

INTRODUCTION

[1]This is an appeal against the decision of a Special Educational Needs and Disability Tribunal pursuant to section 11 of the Tribunals and Inquiries Act 1992.[2]The circumstances giving rise to the appeal can be summarised as follows. G, who is aged 11, and who has been joined as an interested party to the appeal, suffers from dyslexia and has since 2004 benefited from a statement of special educational needs. In December 2006 her local education authority, X City Council, which is the appellant before me and to which I will refer as "the Council", issued a revised statement. G's parents, who are the second-named respondents to the appeal, appealed to the Tribunal. There were issues both as to the extent of the necessary provision for G and as to what school should be identified in Part 4 of the statement. As to the latter point, the Council contended for G's existing school, P, an LEA maintained school, remaining the nominated school, but her parents wished her to attend H School, an independent special school. The Tribunal in its decision dated 16 July 2007 found that G's needs were more extensive than the Council had provided for, though it did not accept Mr and Mrs B's case in full. As regards the nominated school, it decided that the revised statement should be amended so as to identify H School.[3]The Council appeals against that decision. It has been represented before me by Mr Jonathan Auburn of counsel. G has been represented by Mr David Wolfe. Mr and Mrs B are not formally represented, though no doubt in practice their interests are represented by Mr Wolfe. The first respondent, the Tribunal, does not appear. Mr Wolfe has, advisedly, sought no order under section 39 of the Children and Young Persons Act 1933. THE ISSUES[4]The Tribunal found that G's needs, as determined by it, could be suitably met at either school. It is common ground that in those circumstances it was obliged to be guided by section 9 of the Education Act 1996 (as amended), which reads as follows:
"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."
[5]Since Mr and Mrs B's wish was for G to go to H School, the question for the Tribunal was thus simply whether the cost of doing so constituted "unreasonable public expenditure". The evidence before the Tribunal was that the fees at H School would amount to some £11,500 per year. (There were also significant transport costs associated with the H School option, but these were effectively taken out of the equation by G's father undertaking to be responsible for transporting her himself. He is in fact a taxi driver). The Tribunal held that that sum did not represent unreasonable public expenditure. Its findings on the point are shortly stated in its conclusion at E, which was as follows:
"In our estimation the cost of the additional teaching support which G will require if she remains at P will be of the order of £13,000. Thus the cost to the LEA of her placement there would, at least in the short-term, exceed the fees at H School."
In other words, therefore, there was no unreasonable public expenditure because the expenditure involved in the P option would be no less than that involved by sending G to H School.[6]The Council's grounds of appeal are, to say the least, succinct. They are as follows:
"1 The Tribunal erred in including the cost of additional teaching support at P school as this sum was not an additional cost to the LEA. 2 The Tribunal erred in making no finding of fact as to whether P school could in fact provide the additional teaching support ordered from within its own resources and delegated budget and/or failed to give any reasons regarding the same."
Those grounds were not accompanied by any statement of facts, or anything in the nature of a pleading elaborating the points being made. The only full statement of the Council's case appears in Mr Auburn's clear and helpful skeleton argument dated 21 August. This was responded to by Mr Wolfe's equally helpful skeleton argument dated 7 September 2007. (I do not refer to the absence of any pleadings, or other material supporting the grounds of appeal, in order to criticise either Mr Auburn or those instructing him. So far as I can see, the rules do not provide for any such pleadings, and in any event this appeal has had to come on at comparatively short notice because of the urgency of the case. It is, however, material to an issue to which I will have to turn in due course.)[7]I will consider the two grounds of appeal in turn. GROUND 1[8]The Council took the point before the Tribunal that it had chosen to discharge its obligations under Part IV of the 1996 Act, i.e. the part concerned with children with special educational needs, by making so-called "delegated arrangements" under Chapter 2 of Part IV of the School Standards and Framework Act 1998, and in accordance with the School Finance (England) Regulations 2006. Mr Auburn summarised the effect of this statutory regime at paragraph 29 of his skeleton argument, as follows:
"An LEA has discretion whether to retain funding to meet SEN in the central budget, in whole or in part (2006 Regulations, Schedule 2, paras 4-12). If it does not choose to retain funds, that funding will form part of the Individual Schools Budget. The Individual Schools Budget is then apportioned to individual schools in accordance with a formula devised by the LEA in accordance with Part 3 and Schedule 4 of the 2006 Regulations. The incidence of SEN is a permissible factor to be included in the formula. The governors of those schools, or the head-teacher if the governors have delegated their power, are then entitled to manage that school's budget share (s. 49(7) SSFA). Individual schools are to meet the demands of pupils from the share of resources allocated to them. The LEA remains under a duty to provide for a child's SEN, but where the school has a delegated budget the school is usually expected to meet the cost of such SEN provision from that budget."
Mr Wolfe in his skeleton argument acknowledged that that summary was in itself substantially correct, though he said that it failed to mention the effect of s.49(5) of the 1998 Act: as to this, see para. 13 below.[9]What the Council did in accordance with those provisions, (and with a scheme made pursuant to them) was to pay to P for the year 2007/8 a sum of £93,000-odd, out of which the school would be expected to fund provision for all children with special educational needs (save in certain exceptional circumstances which would not apply in G's case). Mr Auburn told me that that amount was not, under the governing scheme, refundable whether or not the full amount was spent. (As regards that last point, I was shown in the course of argument, though it did not appear to have been before the Tribunal or in the bundle prepared for this appeal, an extract from the scheme. That does indeed appear to provide for any surpluses arising as a result of the school not spending its full delegated budget to be retained by the school: see paragraph 4.1.1. However that provision is subject to potentially significant qualifications in paragraph 4.1.5. It has fortunately not been necessary for me to analyse in detail the precise effect of these arrangements.)[10]What Mr Auburn says is that in those circumstances if G were to attend P the Council would have to pay no sum beyond what was already committed to be paid (if it had not yet been actually paid) to the school under the arrangements in question. He referred me to the decision of the Court of Appeal in Oxfordshire County Council v GB and Others [2001] EWCA Civ 1358 [2002] ELR 8. The judgment of the Court delivered by Sedley LJ contains a careful analysis of the effect of section 9 of the 1996 Act in cases where a local education authority, or a Tribunal, has to decide between two schools both of which can meet the child's needs. At paragraph 17 of the judgment Sedley LJ deals with the case where, as here, the choice is between an independent school and a maintained school. In such a case the cost of the independent school option is straightforward, namely the amount of the fees (subject perhaps also to any question of additional transport costs). As for the maintained school option, the court rejected the primary submission made to it on behalf of the child that it was necessary to work out the total cost of SEN provision at the school in question and carry out an apportionment in order to arrive at an amount notionally attributable to each child receiving such provision: section 9, the Court held, was concerned with actual cash expenditure, not with accounting concepts. Thus Sedley LJ said: "The question is what additional burden [providing for the child's needs] it will place on the LEA's annual budget".[11]Mr Auburn relies on that formulation and submits that the effect of the delegation arrangement which I have set out is that if G were to attend P there would be no "additional burden on the LEA's annual budget": the money that would fund the provision for her had already been disbursed (or, it may be, irrevocably committed) by the Council.[12]I reject that submission. In referring to "the LEA's annual budget" Sedley LJ plainly did not have in mind the distinction on which Mr Auburn relies between payment by the LEA directly from its own pocket and payment by the school under delegated arrangements. That distinction had not featured in the argument before the Court of Appeal. The precise route by which payment is made out of what is ultimately the LEA's budget is plainly immaterial to the purpose underlying section 9. The term "the LEA's annual budget" was no more than a paraphrase of the reference to public expenditure in section 9: Sedley LJ's point was that the section was concerned with actual additional money paid out, no matter by whom.[13]That conclusion seems to me to be right as a matter of principle, but it is reinforced by the terms of section 49 (5) of the 1998 Act. Section 49 is part of the group of sections under Chapter 4 of Part II which establish the machinery for the financing of maintained schools. Section 49(1) provides that every maintained school shall have a delegated budget. Subsection (5) reads as follows:
"Any amount made available by a local education authority to the governing body of a maintained school (whether under section 50 or otherwise) -- (a) shall remain the property of the authority until spent by the governing body or the head teacher; and (b) when spent by the governing body or the head teacher, shall be taken to be spent by them or him as the authority's agent."
Mr Wolfe submits that those provisions show that notwithstanding the power given to the school to spend the money under the delegated arrangements, the expenditure remains ultimately that of the Council. In my view that submission is well-founded.[14]Mr Auburn makes the fair point that the Tribunal in its decision simply ignores the Council's submissions on this issue, which it is perfectly clear were indeed advanced to it. I accept that it was wrong to do so. It is the job of any Tribunal to address the principal submissions made to it by the parties and, to the extent that it rejects them, to explain, however briefly, why it has done so. However, that error on the part of the Tribunal does not justify my allowing the appeal where the point with which it failed to deal was in fact itself, as I have held, wrong in law.[15]I should add for completeness that the submissions before me have not required me to take a view on the contentious question of whether the "public expenditure" to which a local education authority should have regard under section 9 of the 1996 Act extends beyond expenditure falling within the education budget. By coincidence, Mr Andrew Nicol QC handed down a judgment only yesterday reviewing the various conflicting authorities on that point (see O v London Borough of Lewisham [2007] EWHC 2092 Admin), but both Mr Wolfe and Mr Auburn accepted, plainly rightly, that the questions there reviewed did not arise on the facts of this case, since the expenditure was plainly in a broad sense, and without prejudice to Mr Auburn's particular point, expenditure from the Council's budget. GROUND 2[16]Although the Council's second ground of appeal is somewhat opaquely expressed, the essential point is that the Tribunal failed to carry out any analysis of whether, and if so to what extent, P could have met G's needs without having to incur additional expenditure. As I have already had occasion to mention in connection with ground 1, the Court of Appeal in the Oxfordshire case has held that the equation required by section 9 in a case of the present kind involves the setting of the fees of the independent school against the actual additional cash expenditure which the maintained school will have to incur if the child in question attends it. Mr Auburn referred to this as the "marginal cost": that is a useful shorthand, though I am a little wary of using too glibly economists' technical terms the full implications of which lawyers may not always understand.[17]Assessment of the second element - that is to say the marginal cost - will depend upon the individual details of the provision required and the staffing arrangements at the school in question. To a greater or lesser extent it may be possible to meet the child's needs by the use of staff who are already employed and to whom no further payment will fall to be made by reason of their making the provision in question - typically, for example, where the child is part of a group under a single special teacher or helped by a single assistant. That point is well illustrated by the facts of the Oxfordshire case itself. The Court there held that the Tribunal had been wrong to take into account the attributed cost of five hours per week of specialist teaching by a teacher for the deaf, because the teacher in question "was on the staff of the hearing-impaired unit and would be paid the same regardless of whether or not [the child] joined the unit"; and of transporting the child to school, because "the taxi was already being used to carry two children to the school, and to add [the child] to its passengers would cost the LEA no more" (see paragraphs 11 and 19.) That was in contrast to two other items, being the so-called "AWPU" costs (a capitation fee paid to a maintained school by the LEA for each pupil placed there), and the cost of an additional learning support assistant: both of these were "genuine on-costs".[18]If we look at the very brief reasoning of the Tribunal on the costs issue, there is indeed, as Mr Auburn submits, no explicit consideration of this kind of question. The finding which I have quoted that "the cost of the additional teaching support which G will require if she remains at P will be of the order of £13,000"is simply not explained. Again, this is bad practice on the part of the Tribunal. The issue of the relative impact on public expenditure of the two options was plainly the determinative issue in the appeal, and the Council was entitled to some explanation of how the crucial figure on which the Tribunal relied was arrived at. However, I do not believe it would be right to allow this appeal if the essence of the Tribunal's reasoning is in fact reasonably apparent from the evidence which was before it. As to this, I have been shown the page from the Council's submissions which addresses this issue. Under the heading:
"Costings of G's support at P", a table is set out in the following terms: "
Age weighted pupil unit (AWPU) Year 5 £1965 Teaching Assistant £7.50 per hour x 16 hours per week x 38 weeks £4560 Higher Level Teaching Assistant £9.50 per hour x 30 mins per week x 38 weeks £180 DLT Teaching Assistant 1 hour per week at £8.50p x 28 sessions based on sessions from September 06 to include summer term 07 £238 DLT Tutor (Pauline Cronin) £64 per session x 4 sessions £256 Speech and Language Therapist £23 per hour every two weeks £437 TOTAL £7636" There then follows a passage of text making the points which I have already considered as to the effect of the fact that the Council had delegated SEN funding to individual schools. The section ends with the following sentence, in bold:
"It should be noted that the school costs for G's support above will be met from the school's existing delegated budget and will not require additional expenditure by the Local Authority."
[19]I should observe, though this point was not directly referred to in submissions before me, that the figures appearing in the table appear to be those for the previous year, and one would assume that some modest uplift would be likely to be necessary in so far as they were being applied to the year with which the Tribunal was in fact principally concerned. Subject to that point, it will be observed that the figure of £7,636 is barely half of the £13,000 odd estimated by the Tribunal. However, the figure is of course based on the Council's case as to what provision was required. That was not the basis on which the Tribunal proceeded. It found that if G were to remain at P she would need much more extensive support than the Council had allowed for. Conclusion B in the decision was that she would require: "• 2 hours' support from a specialist teacher, with one hour of direct 1:1 teaching and one hour for differentiation, planning, liaison with other staff and reviewing;• Support from the DLT's specialist TA in all numeracy and literacy lessons (14 hours per week) plus a further 8 hours of support from the same TA in literacy-based subjects." (DLT is a reference to the local authority's Dyslexia Liaison Team. TA is short for teaching assistant.) It seems to me that it can reasonably be inferred that the approximate doubling of the Council's figure in order to produce the Tribunal's estimate results from the Tribunal using the Council's rates but scaling up the totals to arrive at an approximate figure for the cost of the much more extensive provision that it held was required. While Mr Auburn understandably relied on the absence of any detailed reasons, he did not seek to submit that the figure of £13,000 was otherwise absurd or perverse. Even if it could be shown to be somewhat excessive, it would not take a great deal of further provision to bring the Council's figure of £7,636 within striking distance, so to speak, of the H School fees.[20]With some hesitation, therefore, and while deprecating the inadequacy of the Tribunal's expressed reasons, I would not be prepared to allow this appeal on the basis only of insufficiency of reasons showing how the Tribunal arrived at its crucial conclusion that the P option involved no less public expenditure than the H School option.[21]However, the question remains whether the costs which apparently form the basis of the Tribunal's figure, as I have found above, represent additional expenditure in the sense required by the Court of Appeal in the Oxfordshire decision - "marginal cost", as Mr Auburn describes it.[22]I am bound to say that on an untutored reading of the Council's evidence to the Tribunal, as set out in para. 18 above, my clear first impression was that they do represent actual additional costs which the Council, or the school under the delegation arrangements, would have to incur by reason of G's attendance. I accept that the language and presentation are not explicit, but the way that the figures are itemised is at least suggestive of actual cash payments.[23]Mr Auburn, however, insisted that that was not the case. He told me on instructions that each of the teaching assistants and DLT teaching assistants and tutors whose costs were included in the list were already on the staff, or were available to the school under annual fixed-sum contracts with the DLT which were unaffected by the number of pupils actually requiring the services in question. He acknowledged that the AWPU item was a marginal cost, but he said that that was the only one.[24]I have no particular reason to doubt what Mr Auburn tells me, though caution and general experience suggest that matters might turn out to be rather more complicated if submitted to closer scrutiny. But the fact remains that there is no statement to the effect for which he contends in the document itself. The question of whether the 'costings' set out represent actual additional expenditure is simply not adverted to. That impression is reinforced by the absence of any factual explanation, of the kind which would otherwise have been necessary, of exactly why these costings were already committed (e.g. about the fixed-sum arrangements for the supply of teachers from the DLT). Mr Auburn sought to persuade me that the second part of the final sentence of the document, which I have set out at para. 18 above - specifically the statement that the school costs "will not require additional expenditure by the local authority" - is intended as a statement that none of the costs were marginal costs. However, I cannot read it in that way. On a natural reading, it appears simply to be drawing the conclusion from the point made in the first half of the sentence (and indeed in the rest of this section of the document), namely the point about the sums not coming off the LEA's own budget because they had already been committed under delegated arrangements.[25]Of course, that document was not the totality of the material before the Tribunal. Mr Auburn told me, again on instructions, that, whatever may or may not appear in the document, the point about marginal cost was clearly made to the Tribunal in the course of oral submissions. In that connection he referred me to a page from the bundle which was before the Tribunal (though it is not included in the appeal bundle before me) which showed the way in which the special support given to G in the previous year had been supplied: this showed that most of that provision had been in the context of group work. Mr Auburn's instructions were that in the context of that document the point had been made to the Tribunal by the Council's solicitor that any further provision would also be likely to be provided in groups, with the result that there would be no marginal cost.[26]Mr Wolfe submitted that, whether or not this was factually correct, this line of argument was simply not open to the Council. If it was intended to argue that the Tribunal had ignored or misunderstood a crucial part of the Council's case, the essential foundation for such an argument was to establish authoritatively that the submissions in question had indeed been made to the Tribunal. That could in principle be done by reference to the documentary evidence and any written submissions which were put before the Tribunal, or, if reference to oral evidence or submissions was necessary, by a witness statement from the solicitor with the conduct of the case setting out what had been said at the hearing. But, as we have already seen, no argument about marginal cost appears from the written submissions; and, as regards witness evidence about what happened at the hearing, Mr Auburn had in fact at the start of the appeal before me objected to the inclusion of a witness statement which G had sought to adduce (directed to a different point), on the basis that evidence of this character was inadmissible in principle. It is true that the Council had, as a fall-back, prepared its own witness statement from Miss Carter, the solicitor with conduct of the case on behalf of the Council, giving an account of some of the submissions made to the Tribunal; but that did not in fact address the points in question.[27]Mr Wolfe also pointed out that Mr Auburn's skeleton argument - which, as I have already said, is the only detailed statement of the Council's case, given the exiguousness of the grounds of appeal - did not seek to make any of the points which he has now sought to develop before me orally. That is indeed so. I need not embark here on an elaborate analysis of the skeleton argument; but Mr Wolfe is quite right to say that the focus is virtually entirely on the first ground of appeal. Ground 2 features simply in a single paragraph restating the terms of the grounds of appeal as pleaded. Although at various points in the skeleton (see, for example, paragraphs 8, 11 and 30) Mr Auburn uses language to the effect that the provision for G did not give rise to any additional expenditure or that, for example, "the marginal cost to the LEA of this additional teaching support is nil" those submissions are made clearly as part of ground 1 of the appeal, which I have already rejected. The points now made orally, as discussed at paras 21-25 above, do not feature at all.[28]I find those submissions on the part of Mr Wolfe persuasive. It may in fact be that the Council in its oral submissions to the Tribunal did clearly make the "no marginal cost" point and that the Tribunal was in consequence in error in not accepting, or at least reaching the necessary factual conclusions on, that point. But I have simply not been given the material on which I could properly reach any such conclusion. Mr Auburn's instructions, communicated for the first time in the course of oral argument before me, are a quite inadequate basis for me to find that the Tribunal erred in that way. On the face of the material which I have seen, there was evidence which justified the Tribunal in concluding that the full £7,600 were actual costs and in making the further estimate of £13,000 on that basis.[29]In those circumstances I must hold that ground 2 of the appeal is not made out. Both grounds, therefore, are rejected. I dismiss this appeal.[30]MR AUBURN: My Lord, I am very grateful. I think there are three points that you need to determine in consequence of that helpful judgment. The first is in relation to costs, the second is in relation to appeal, and the third is in relation to an application I make in relation to the timing of the appeal. In relation to the first point of costs--[31]MR JUSTICE UNDERHILL: That is more likely to be Mr Wolfe's submission than yours. He is obviously going to make an application for costs. Do you resist it?[32]MR AUBURN: No.[33]MR JUSTICE UNDERHILL: I will order that the costs of the appeal be whose, Mr Wolfe? There is a slight technical problem. You started representing Mr and Mrs B, or somebody did. You now formally appear for the interested party.[34]MR WOLFE: Only for the interested party.[35]MR JUSTICE UNDERHILL: The costs of the appeal be the interested party's, to be assessed on the standard basis.[36]MR AUBURN: My Lord, in relation to the issue of appeal it is my understanding, I have discussed it with my learned friend, that only the Court of Appeal can consider granting an appeal in this case as it would be a second appeal.[37]MR JUSTICE UNDERHILL: If you say so. You are probably right.[38]MR AUBURN: I can take you to the provision for it if you wish. It is CPR 52.13.

MR JUSTICE UNDERHILL: That looks right.

[40]MR AUBURN: So there is no application today. However, I do make an application which is that you exercise your power to extend time for filing of the Notice of Appeal to 14 days following receipt of the transcript of your judgment. The reason for that, my Lord, is because the appellant will need to carefully consider whether it wishes to appeal. That is obviously a matter which you must give very careful consideration to. It can really and properly do so with the full transcript of your judgment.[41]MR JUSTICE UNDERHILL: This is a problem which -- I am not sure this is particularly contentious -- quite commonly arises. Certainly the general view, I think, is that counsel should be able to take an adequate note, not a verbatim note, on a sufficient basis at least to decide whether you want to appeal. Clearly some of the procedures which then follow in the Court of Appeal may be slowed up if there is a delay in supplying the transcript, but do you really need it in order to decide whether you want to appeal?[42]MR AUBURN: I would submit we would, yes.

MR JUSTICE UNDERHILL: Mr Wolfe, having expressed that slightly quizzically, do you really mind?

[44]MR WOLFE: Yes, I do. Indeed I make a counter-application. Can I ask you to bring to hand the provision of CPR 52.4 which deals with the appellant's notice? What it provides at CPR 52.4.2 is the filing of the appellant's notice. "where the court makes no direction, 21 days after the date of the decision" that is, 21 days from today and then provides for it to be filed within 7 days." In the normal course of events the skeleton argument would then have to follow within 14 days from that.[45]MR JUSTICE UNDERHILL: I think clearly Mr Auburn will be in difficulties doing the skeleton argument until he has the transcript.[46]MR WOLFE: My experience certainly is that it will be inappropriate to extend the period for a certain notice and it may well be, however, that if the transcript were not available, a notice having been served, the 14 days will be extended to allow for the skeleton.[47]MR JUSTICE UNDERHILL: I am prepared to ask for the transcript to be expedited. My experience of the excellent shorthand services we get here is that if you ask for something to be expedited it comes within a day or two, and then it is down to me to correct it. I will give it priority. I do not think you are going to have to wait more than a week for the transcript, maybe a bit less.[48]MR WOLFE: That is very helpful in this respect, my Lord: it may take the wind out of Mr Auburn's application. As I indicate, there is a further concern on our part, and as my Lord heard yesterday, G was due to attend school if not at P at H School from today. She has not done so. That is because the LEA has not amended the statement. It has not complied with the order of the Tribunal. It has not equally sought a stay, but nor have we sought judicial review proceedings to compel them to do that which they are required to do as a matter of law, in fact some time ago which would have (inaudible)as at today. Unless the LEA intends to implement the statement in relation to G at H School straightaway, which will obviously deal with the concern, any delay in the process is delay at the expense of G's education. The concern is that the Council should not be sitting on its hand in a private sense, but at least putting us out of our misery.[49]MR JUSTICE UNDERHILL: There is some force in that, Mr Auburn. I honestly have not looked at the timetable. I have not done many of these, but I have done one or two and I know there is a problem that, however quickly one proceeds you quite often get the situation, particularly in the summer, where the appeals do not come on very quickly. The fact remains that, and it is not any fault of G's, there is a question mark over her future education which really needs to be resolved very quickly, even if it is not the fault of the Council either. Why cannot the Council reach a decision whether to appeal on the basis that you will be able to give them my reasoning, if you are lucky with a transcript to back it up, within a few days, but actually reach a decision in somewhat abridged time? Mr Wolfe, what were you about to ask for?[50]MR WOLFE: Rule 52.4(2)(b) says 21 days unless this court orders a shorter time. If the transcript will take a few days or up to a week, then I was going to suggest by the end of Friday next week. That means G will have missed a week and something of school.[51]MR JUSTICE UNDERHILL: Not necessarily. There is a separate question, which does not sound as though it is for me, as to whether the Council thinks it is the right thing to amend the statement and get her to H School tomorrow, and whether if they do whether the parents think it is the right idea to start it in circumstances where she may--[52]MR WOLFE: That is a financial question for them. The difficulty is liability for fees.[53]MR JUSTICE UNDERHILL: There is a double question. I see there is the question of fees and also the question of impact on her changing twice.[54]MR WOLFE: Plainly they want her to start there and they are confident, in the light of your Lordship's judgment, about the correctness of that. Of course if the Council's concern is of the wider impact of my Lord's judgment: the underlying legal point, it is only that which will get them into the Court of Appeal because it is a second appeal. If that is the true concern then they could, of course, say to the family, and to the Court of Appeal, that the whole legal point being pursued without prejudice to G's position--[55]MR JUSTICE UNDERHILL: These are points that you are addressing to Mr Auburn through me. The other point you will no doubt make is that the basis on which I found against them is very fact-specific and is to do with the conduct of the case before the Tribunal. It is unlikely to have any other implications. Those are questions which you can bend Mr Auburn's ear about outside. The real point, however, is that I have to assume that there is a possibility of an appeal. I am certainly persuaded that the decision ought to be made sooner rather than later. The only question is at what point would a timetable be so abbreviated as to prejudice the Council? Mr Auburn, the way I am thinking is that Mr Wolfe's submission does give you sufficient time. You will certainly be able to advise the Council sufficiently for them to reach a view. You may feel like you ought to get a transcript. I do not regard that as essential, even if it is held up.[56]MR AUBURN: Are you considering abridging time?[57]MR JUSTICE UNDERHILL: Yes, I am. I am not attracted by your submission. Frankly your submission is academic.[58]MR AUBURN: Can I say this: the local authority has not applied for a stay of the Tribunal's decision. While I have no instructions on the point, and my solicitors are not hear today, it may well be that if an appeal is sought it will be done on the basis that it did not prejudice G's submission. I cannot say anything further on that without having instructions on that. What I would say is that the local authority is very sensitive to the position her family and G are in. You will be aware of the extreme efforts that have been made to ensure this case did get on on an expedite basis. If the Council is to consider the issue of an appeal it has many sensitive matters to take into account beyond simply the strict legal merits of an argument. I submit it will be wrong to abridge the timescale such that the local authority is rushed into putting in a Notice of Appeal in circumstances where it might not have fully decided that is the right course of action.

MR JUSTICE UNDERHILL: Why can it not make up its mind, in effect, in ten days?

[60]MR AUBURN: There are a number of factors: it has to get an account of the judgment; it has to get my note typed up; you may wish to retain advice from someone other than myself, I do not know; it might involve a meeting or discussion within Council. It is not a simple matter of one person in the local authority reading a document and making a decision. It would be wrong to abridge time such that the local authority may have felt that although its decision was not finally determined, nonetheless it should submit a Notice of Appeal out of an abundance of caution. That would not be a useful approach.[61]MR JUSTICE UNDERHILL: It is always these little decisions that are the most difficult. I will abridge time so as to require any to appeal within 14 days of today. I would emphasise, though I am sure they do not need to be told this, the importance of the Council making a definitive decision, rather than simply appealing on a precautionary basis. I will do my best to enable them to be in a position to do so on a fully advised basis by expediting the transcript and making my corrections to it as soon as I possibly can.[62]MR WOLFE: I am grateful.[63]MR JUSTICE UNDERHILL: Mr Auburn, can I ask for this message also to get back to your clients? I have given them somewhat more time than Mr Wolfe asked for because I appreciate that important decisions should not be taken in a great rush, but the sooner they are able to take even piecemeal decisions the better. Therefore, for example, if they were considering the appeal but had made a decision, in principle, that whatever happens it would not prejudice G's position, it is in everyone's interest that G be told that straightaway. If they can make that decision within a week, even if they want another week to think about whether to appeal at all, they should do so. Thank you both for your help.

Cited in 6 later judgments