Hampshire County Council, R (on the application of) v R [2009] EWHC 626 (Admin)

Case No CO/11245/2008

[2009] EWHC 626 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Tuesday, 10 February 2009

Strand

London WC2A 2LL

B e f o r e:

MR JUSTICE STADLEN

Between

THE QUEEN ON THE APPLICATION OF HAMPSHIRE COUNTY COUNCILClaimant

RDefendant

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Mr J Moffett (instructed by Hampshire County Council) appeared for Claimant

Mr D Wolfe (instructed by Maxwell Gilott Solicitors) appeared for First Defendant

J U D G M E N T

[1]MR JUSTICE STADLEN: This is an appeal by the Hampshire County Council against a decision of the second respondent, the Special Educational Needs and Disability Tribunal, dated 20 October 2008. The first respondent is the mother of the boy in respect of whom the decision was made, and in respect of whose education the decision was made. I shall refer in this judgment to the boy as "J" and to the first respondent, his mother, as "Ms R".

[2]By its decision the Tribunal ordered the Council to make various amendments to the Statement of Special Educational Needs maintained for J. In particular, it ordered the appellant Council to name Dove House School in part 4 of the statement as the school at which J is to be educated. In ordering the Council to name Dove House School in J's statement the appellant contends that the Tribunal erred in law. I will come in detail to the alleged errors, but it is contended that the Tribunal misconstrued its duty to have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, imposed by section 9 of the Education Act 1996 ("the Act"), as requiring it to name Dove House School because the first respondent, Ms R, had expressed a preference for it.

[3]The background can be summarised as follows. J was born on 4 January 1997. At the time of the hearing before the Tribunal he was 11 years old. J is on the Autistic Disorder Spectrum and has been diagnosed with Asperger's Syndrome. For him this tends to present as difficulties with social communication, social interaction and social understanding, some anxious and challenging behaviour and difficulties with social integration.

[4]Until the end of the summer of 2008 J was educated at the Manor Junior School, a maintained mainstream school in Farnborough. As J was due to transfer to secondary school at the start of the 2008/9 academic year it was necessary to review his statement so that it made provision for his schooling at the secondary stage. Accordingly, on 29 January 2008, the Council issued an amended statement for J. In part 4 of the statement, which deals with school placement, it specified that he would continue to attend Manor Junior School. Then from September 2008 he would attend the Samuel Cody School, the maintained special school in Farnborough.

[5]Ms R did not agree with the naming of the Samuel Cody School in J's statement and, as was her right, she appealed to the Tribunal, pursuant to section 326 of the Act, by way of a notice of appeal, dated 31 March 2008. That appeal was heard by the second respondent Tribunal on 18 September 2008. Ms R was represented by Ms Strudwick, a retired head teacher, and the Council by Mr Cawthra, an Assistant Education Officer.

[6]Although there were various areas of dispute between the parties as to the contents of parts 2 and 3 of J's statement, (which set out his special educational needs and the provision that should be made to meet those needs respectively) the main area of dispute was over the appropriate secondary school placement for J. The Council maintained its position that J should attend the Samuel Cody school, whereas Ms R asked the tribunal to order the Council to name Dove House School, also a maintained special school.

[7]The Council accepted that Dove House School could make suitable provision to meet J's special educational needs, and also accepted that the costs to the Council of educating J at Dove House School would not be materially different from the costs of educating him at the Samuel Cody School. However, the Council adduced evidence, including oral evidence, from the head teacher at Dove House School to the effect that that school was already operating at capacity, and that to admit J to that school would have adverse consequences for the teachers and pupils at it.

[8]During the course of the hearing the Tribunal raised the issue of section 9 of the Act. The Tribunal invited submissions on that issue. Mr Cawthra, who is not legally qualified, requested an adjournment so that he could take advice and formulate submissions. The Tribunal granted a brief adjournment to enable him to speak with the council's legal department, but it refused an adjournment for submissions to be made on another day, and refused an application to permit the parties to put their submissions on the issue in writing within a short period of time after the close of the hearing.

[9]For reasons that will appear below, it is to be regretted that they declined an adjournment because it is possible that had they done so the errors, which I have found that they fell into, would not have occurred, and a great deal of time might have been saved in bringing the certainty and finality as to J's educational future, which is of great importance.

[10]In the event, the Tribunal decided to order the Council to name Dove House School in part 4 of J's Statement of Special Educational Needs. Its reasoning was as follows:

"I. As far as Part 4 is concerned, [Ms R] has asked for a place for [J], at a maintained special school, namely Dove House School. Schedule 27,3(3) of the 1996 Education Act provides that if a parent has requested that a particular maintained school should be named, then Part 4 must name that school as long as it is:- • Suitable to meet the child's needs; • The child's attendance would not be incompatible with the provision of efficient education for the children with whom he/she would be educated and the efficient use of resources. In this case the local authority accepts that Dove House School could meet [J's] needs and that there would not be any inefficient use of the local authority's resources, given that a place at Dove House School would be at no more cost to the local authority than if for example [J] were to attend the Samuel Cody School. The ground of objection put forward by the local authority was that it would be incompatible with the provision of efficient education for the other children with whom [J] would be educated, this on the basis of the local authority's evidence that Dove House School is oversubscribed. We had the benefit of not only the local authority's submissions on this, but also hearing evidence from Mr House. It is clear that Dove House School has become a victim of its own success in that it is now taking considerably more pupils than the original school buildings were designed to accommodate. This has only been possible by the provision of a number of temporary classrooms which obviously provide a far from satisfactory environment for the pupils. The precise effect of this situation was spelt out by Mr Cawthra, in regard to such matters as toilet facilities, play space, staff facilities, lunch arrangements and the movement of pupils between the temporary classrooms and the main part of the school. Also highlighted both by Mr Cawthra and Mr House were the potential health and safety difficulties that arose with the numbers presently at the school, particularly in relation to the use of specialist rooms for subjects like science, where resistant materials and chemicals were in use. The agreed number of pupils in Year 7 [I consider that must be a typo] for September 2008 was 150, but as a result of earlier Tribunal decisions Dove House had taken 33 pupils in Year 7, divided into 3 classes of 11. The school has carried on with the additional numbers, no doubt as a result of the dedication and professionalism of Mr House and his staff they have continued to provide an education for all of the pupils. Mr House could not identify any particular results or measures of achievement which showed that pupils were attaining at a lower level simply as a result of the school's numbers. However we accept his argument that there must come a point where the numbers in a classroom reach such a level that they must impact on the ability of the staff to provide the same level of education to all the children. Already each of the classes in Year 7 has one more pupil over the numbers considered by Mr House and his governors to be appropriate. We therefore consider that to increase the number in any class to 12 by taking [J] would impact on the efficient education of other children with whom he would be educated. J. Notwithstanding that we consider that there would be an effect on the efficient education of other children if [J] were to attend Dove House School that does not rule Dove House School out of our considerations completely. We must now turn to Section 9 of the 1996 Education Act which provides as follows: [They then set out section 9, to which I will return.] As we have already identified it is [Ms R's] wish that [J] should be educated at Dove House School. In terms of the provision of efficient instruction and training it is accepted by the local authority that Dove House School can meet [J's] needs and in our view it is [J's] 'instruction and training' to which Section 9 refers, given that it is a section in the Education Act dealing with wishes of parents in respect of the education of their own children, rather than the education and training of all children. [I interpose here to observe that it is that conclusion and direction to itself, which forms the first ground of the appeal against the Tribunal's decision.] That simply leaves then the question of unreasonable public expenditure. We have limited evidence regarding Samuel Cody given that no one from the school was present at the Tribunal hearing, although we did have the benefit of reading their prospectus and hearing from Ms Keil who is familiar with the school. On that basis we consider that Samuel Cody ought to be able to meet [J's] needs. However, it was accepted by the local authority that there would be no difference in cost between Samuel Cody and Dove House School so that in those circumstances it cannot be said that there would be an unreasonable use of public expenditure in [J] attending Dove House School. Therefore following Section 9, we conclude that [J] should be educated in accordance with the wishes of his mother and that Dove House School should be named in part 4 of his Statement. [It is the second ground of appeal by the council that that last sentence indicates that the Tribunal again fell into error by directing itself and concluding that it had no discretion as a result of section 9, and was required by that section and by its conclusion on the lack of incompatibility under it to direct that the council to ensure that [J] should be educated in accordance with the wishes of his mother.] This may well have implications for Dove House School in the way in which it delivers education to [J] and the other pupils and may indeed have an effect on the education of other pupils, but it will be a matter for the school as to how they organise matters to accommodate [J], particularly in circumstances where at the present time their agreed numbers are 150 but 149 pupils are currently on the roll."

[11]It is necessary next to turn to the relevant legislative background. Part IV of the Act establishes a comprehensive scheme for the education of children with special educational needs. The child has special educational needs for the purpose of the Act if he has a learning difficulty which calls for special educational provision to be made for him (see section 312 of the Act). If after an assessment of a child's special educational needs it is necessary for a local educational authority to determine the special educational provision that those needs call for, it must make and maintain a Statement of Special Educational Needs (see section 324(1)).

[12]A Statement of Special Educational Needs must give details of a child's educational needs and specify the special educational provision to be made for the purpose of meeting those needs (section 324(3). In particular, a statement must specify the type of school which will be appropriate for the child to attend. If section 27 to the Act does not impose a requirement to specify the name of any school it may specify the name of any school appropriate for a child (section 324(4)).

[13]Schedule 27 to the Act provides for the making and maintenance of Statements of Special Educational Needs. Paragraph 3 of Schedule 27 requires an educational authority to make arrangements to enable the parent of a child for whom a statement is to be made to express a preference as to the maintained school at which he wishes education to be provided for his child. Paragraph 3(3) makes provision for the giving effect to such preferences:

"Where a local education authority make a statement in a case where the parent of the child concerned has expressed a preference in pursuance of such arrangements as to the school at which he wishes education to be provided for his child, they shall specify the name of that school in the statement unless - (a) the school is unsuitable to the child's age, ability or aptitude or to his special educational needs, or (b) the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources."

[14]Where a Statement of Special Educational Needs is amended the parent of the child may appeal to the Tribunal against the special educational provisions specified in the statement, including the name of the school (see section 326(1) and 1(a) of the Act). On an appeal the Tribunal considers matters de novo and it may order the local educational authority to amend the statement so as to specify the name of the particular school (section 326(3)). There is a right of appeal from the Tribunal to the High Court on a point of law, pursuant to section 11 of the Tribunals and Enquiries Act 1992, and this is such an appeal.

[15]Section 9 of the Act provides as follows:

"9. Pupils to be educated in accordance with parents' wishes In exercising or performing all their respective powers and duties under the Education Act, 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."

It is necessary to set out finally the relevant parts of section 324 of the Act:

"(1) If, in the light of an assessment under section 323 of any child's educational needs and of any representations made by the child's parent in pursuance of Schedule 27, it is necessary for the local education authority to determine the special educational provision which any learning difficulty he may have calls for, the authority shall make and maintain a statement of his special educational needs. (2) The statement shall be in such form and contain such information as may be prescribed. ... (4) 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; ..."

[16]The Notice of Appeal contains three grounds. They are that in reaching its decision the second respondent Tribunal erred in law in that:

"(1) it misconstrued the qualification in s 9 of the Act, to the effect that the parental preference need not be given effect to if it would be incompatible with the provision of efficient instruction and training to do so, as referring to the efficient instruction and training of [J] only; and/or (2) it treated the fact that the First Respondent had expressed a preference for Dove House School as determinative of it decision by virtue of s 9 of the Act, without balancing that expression of preference against matters that weighed against naming Dove House School; and/or; (3) the Second Respondent wrongly concluded that, in a case where a parent expresses a preference for a maintained school, s 9 of the Act applies at all."

[17]In the course of oral argument Mr Moffett, who appeared for the appellant, told me that it was not the intention of the appellant Council to maintain that third ground in this court, while reserving its position and its right to argue that point, should this matter go further.

[18](The second respondent, the Tribunal, was not represented before me. The representation was Mr Moffett, on behalf of the appellant, and Mr Wolfe on behalf of the first respondent.)

[19]It is necessary, therefore, to turn first to the first ground of appeal and to observe, by way of preliminary, that it was common ground between those two parties that whilst the duties imposed by section 9 and paragraph 33 of Schedule 27 to the Act are not expressly imposed on the Tribunal, it has long been accepted that they apply to the Tribunal on appeals as they apply to local education authorities when making decisions as to the contents of statements of special educational needs. By way of example of an authority in which that occurred reference was made to the case of T v Special Educational Needs Tribunal

[2002] ELR 704

per Richards J.

[20]Further, it was common ground that section 9 of the Act does not impose a duty to comply with parental wishes. It merely imposes a duty to have regard to the general principle that pupils are to be educated in accordance with such parental wishes. This proposition was first set out by the Court of Appeal in Watt v Kesteven County Council

[1955] 1 QB 424

, which was concerned with section 76 of the Education Act 1944, which was in materially the same terms as section 9 of the Act. In that case Denning LJ, as he then was, held (at page 424):

"Section 76 does not say that pupils must in all cases be educated in accordance with the wishes of their parents. It only lays down a general principle to which the county council must have regard. This leaves it open to the county council to have regard to other things as well, and also to make exceptions to the general principle if it thinks fit to do so."

[21]That line of authority was expressly applied to section 9 of the Act by Richards J in T v Special Educational Needs Tribunal at paragraph 38(ii).

[22]I turn, therefore, to the point of construction of section 9, on which the parties are at issue. As appears from the extract from the Tribunal's decision, the Tribunal construed section 9 in this way, that it is only J's instruction and training on this case to which section 9 refers. Thus, where section 9 provides that:

"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..."

They concluded that it is only the child of the parents whose wishes are to be consulted such is the focus of the requirement that the principle of educating in accordance with parental wishes is subject to the qualification that it must be compatible with the provision of efficient instruction and training that is the compatibility with the provision of efficient instruction and training, to whom regard must be paid.

[23]In his written submissions Mr Wolfe, on behalf of the first respondent, submitted that the appellant's contention and preferred construction involved the proposition that the words, "so far as that is compatible with the provision of efficient instruction" should be read as if they said, "so far as that is compatible with the provision of efficient instruction of the children with whom the child will be educated". He submits that there is no basis for reading in those extra words, which, he submits, the Council contends should be added to the statute. That, he submitted, was for Parliament and not the court.

[24]He supports that submission by pointing to at least three other instances in the Act where the statute focuses attention on the impact of a placement on the efficient education of children, in each of which the statute expressly refers to the impact on other children. It has not done so in section 9 and so, submits Mr Wolfe, the court must give effect to the distinction drawn by the draftsman.

[25]The other passages referred to by Mr Wolfe are paragraphs 3(3) and 3(3)(b) of Schedule 27 to the Act where the relevant words are:

"Where a local education authority make a statement in a case where the parent of the child concerned has expressed a preference in pursuance of such arrangements as to the school at which he wishes education to be provided for his child, they shall specify the name of that school in the statement unless - ... (b) the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would be educated [end bold] or the efficient use of resources."

Next in paragraph 8(2) of the same schedule, dealing with a change of named school and a similar mechanism, the language is:

"The local education authority shall comply with the request unless- ... (b) the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources."

Then section 316:

"(1) This section applies to a child with special educational needs who should be educated in a school ... (3) If a statement is maintained under section 324 for the child, he must be educated in a mainstream school unless that is incompatible with - ... (b) the provision of efficient education for other children."

Finally, section 317:

"(4) Where a child who has special educational needs is being educated in [a community, foundation or voluntary school] or a maintained nursery school, those concerned with making special educational provision for the child shall secure, so far as is reasonably practicable and is compatible with - ... (b) the provision of efficient education for [bold] the children with whom he will be educated ... ... that the child engages in the activities of the school together with children who do not have special educational needs."

[26]Further, Mr Wolfe adopts the reasoning of the Tribunal itself where they say that given that section 9 is a section in the Education Act dealing with the wishes of parents in respect of the education of their own children, rather than in the education and training of all children, it is right to interpret the section as referring only to the instruction and training of the pupil whose parents' wishes are in issue.

[27]I am told that there is no direct authority on this point. In my judgment, Mr Wolfe's submissions are incorrect. First, it seems to me that they proceed on a mischaracterisation of the submissions advanced by Mr Moffett, on behalf of the appellant Council. As noted, Mr Wolfe characterised those submissions as involving the proposition that the words, "so far as that is compatible with the provision of efficient instruction" should be read as if they said, "so far as that is compatible with the provision of efficient instruction of the children with whom the child would be educated".

[28]In my judgment that is a mischaracterisation. That is not the contention of the Council, nor would that be a correct interpretation of section 9. The Council does not contend that it is limited to considering incompatibility with the provision of efficient instruction of the children with whom the child in question would be educated. The Council contends rightly, in my judgment, that the question of incompatibility with the provision of efficient instruction is entirely general and at large and unlimited.

[29]In reality, in my judgment, it is the first respondent whose submission, in effect, is a submission that the language of section 9 should be limited by the addition of additional words, namely "the children of the parents whose wishes are to be consulted". It is the first respondent whose construction requires the insertion of the additional words in this case "of their children".

[30]In my judgment one starts with the proposition that the language in section 9 involves no limitation at all. The language is simply, "so far as that is compatible with the provision of efficient instruction and training". There is no limitation whether by reference to the pupil whose parents' wishes are in issue, whether by reference to children with whom such pupils might be educated if the principle were to be given effect to, or otherwise.

[31]In my judgment, Mr Moffett is right in his primary submission to the effect that the submission advanced by Mr Wolfe involves reading into section 9 limiting words which are simply not there, and there is no warrant for doing so. If one stands back and looks at what are the countervailing arguments as to whether such words should be read in, one can see, at first blush, some force in the submission that this is a provision that is dealing with the wishes of the parents of the particular pupil.

[32]As a matter of first impression when reading the section, what Parliament might have had in mind is that regard should be had 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 for such pupils. In other words, that there should be a restraint on the primacy of the parental wishes, that restraint being that it is not in the public interest that the giving effect to of such wishes of their parents should lead to those pupils receiving inefficient instruction and training.

[33]However, in my judgment one has to stand back and look at the policy behind section 9. Some guidance on that policy is to be found by the final limiting words, "the avoidance of unreasonable public expenditure". Those words were considered by the Court of Appeal in Oxfordshire County Council v GB and Others

[2001] EWCA Civ 1358

Sedley LJ at page 13, paragraph 16, in referring to that part of section 9, said:

"This means striking a balance between (a) the educational advantages of the placement preferred by the parents and (b) the extra costs of it to the LEA as against what it will cost the LEA to place the child in a maintained school."

[34]Mr Moffett submits that the limitation contended for by the first respondent would be contrary to the intention of Parliament. Parliament cannot have intended that there should be a general principle that pupils should be educated in accordance with the wishes of their parents, even where to do so would adversely affect the provision of efficient instruction and training to other children.

[35]In my judgment there is force in that submission. In my judgment the policy behind section 9 is that there are limiting factors on an unbridled regard being paid to the general principle that pupils are to be educated in accordance with the wishes of their parents, and those limiting factors are inserted by Parliament by reference to the knock-on effect that giving effect to those wishes might have generally.

[36]It may be that having regard to the parents' parental wishes would be incompatible with the provision of efficient instruction and training to the parents' own child or children. It may be that it would be incompatible with the provision of efficient instruction and training for children with whom the parents' children would be educated if the wishes were to be given effect to. It may be that it would be incompatible with the provision of efficient instruction and training to other children who would not be educated together with the pupils of the parents in question, but who would be adversely affected, because the efficiency of their instruction and training would be incompatible with the parental wishes, in some indirect way, by reason of the arrangements that would need to be made to give effect to those wishes.

[37]So far as Mr Wolfe's argument about comparing the language in the sections of the Act, to which I have referred, is concerned, in my judgment those passages work against his argument rather than in favour of it because in my judgment, as a matter of construction, it is his construction which requires the reading into section 9 of qualifying language, namely "to their children". When one analyses his submission in that way, and the construction for which he contends in that way, in my judgment the fact that there are other passages where limiting words have been expressly written into the statute argues against the proposition that where those words are not written in by the draftsman in section 9 it is to be inferred that they should be there by a matter of implication. In those circumstances I have no doubt that the contention of the appellant Council is right, and that the Tribunal erred in law, so far as the first ground of appeal is concerned.

[38]So far as the second ground is concerned, as I understand it, it was agreed between the parties, certainly by the end of the argument, if not at the beginning, that in a case such as this where the relevant decision-maker has made a finding that there is no incompatibility under section 9, that is not dispositive of the ultimate decision which the decision-maker must take. That decision is one which must then be taken, assuming that the provisions of Schedule 27, paragraph 33, have not already disposed of the matter, by the decision-maker addressing the exercise of the discretion conferred on it by section 324(4) of the Act. That is to say, that if in this case the Tribunal are not required under Schedule 27 to specify the name of any school in the statement (because it has found that there is the necessary incompatibility), the statement shall 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.

[39]That is a process which involves the exercise of a discretion. The question is whether that is what, on the facts of this case, the Tribunal did, or whether, as contended for by the appellant, they misdirected themselves to the effect that having found that there was no incompatibility under section 9 they had no discretion and were required to give effect to the parents' wishes, in this case Ms R's wishes.

[40]I have no doubt at all that what occurred in this case is that the Tribunal did misdirect itself as contended for by the appellant. Having directed itself that, "In our view it is J's instruction to which section 9 refers" and having found that no unreasonable use of public expenditure would be involved in J attending Dove House School, the Tribunal found: "[bold] Therefore [end bold] following Section 9, we conclude that [J] should be educated in accordance with the wishes of his mother and that Dove House School should be named in part 4 of his Statement".

[41]Mr Wolfe submitted that there are passages in the reasoning which suggest that the Tribunal did engage in in considering its discretion under section 324(4) and weighed the relevant factors, and urged upon me that one should not construe this reasoned judgment like a statute. He drew attention to the passage in which the Tribunal said:

"Notwithstanding that we consider that there would be an effect on the efficient education of other children if [J] were to attend Dove House School that does not rule Dove House School out of our considerations completely"

. He also relies on the passage:

"This may well have implications for Dove House School in the way in which it delivers education to [J] and the other pupils and may indeed have an effect on the education of the other pupils, but it will be a matter for the school as how they organise matters to accommodate [J], particularly in circumstances where at the present time their agreed numbers are 150 but 149 pupils are currently on roll."

[42]In my judgment, the latter passage demonstrates the reverse proposition, that is simply drawing attention to the consequences of their decision, rather than identifying the matters they took into account in reaching their decision. The first passage that I have read does not, in my judgment, evidence the Tribunal having moved on from its conclusions on section 9 to a general balancing exercise in a discretion under section 324(4). Accordingly, in my judgment, the second ground of appeal is also made out.

[43]There is a cross-appeal by the first respondent. There are two parts to the cross-appeal of which the first, in my judgment, is of more practical importance than the second. It arises out of the true construction of paragraph 3(3) of Schedule 27 to the Act, and, in short, Mr Wolfe submits that the fact, which the Tribunal was required to find before it could find that the exception to paragraph 3(3) was made out, was nothing short of incompatibility between naming Dove House School and the provision of efficient education for the children with whom J would be educated. It was his submission that the Tribunal failed to do that.

[44]The relevant passage is this sentence, having identified the fact that there were 33 pupils in Year 7 divided into three classes of 11, and that each of the classes in Year 7 has already one more pupil over the numbers considered by the headmaster and the governors to be appropriate:

"We therefore consider that to increase the number in any class to 12 by taking [J] would impact on the efficient education of other children with whom he would be educated."

Mr Wolfe accepts that as a matter of reasoning it is to be inferred that the Tribunal must in that sentence have made a finding of incompatibility, because had they not done so there would have been no need for them to go on as they did to consider further questions such as the effect of section 9. However, he submits that it is apparent in that sentence that they falsely equated their finding that increasing the numbers in any class to 12 would impact on the efficient education of other children with incompatibility with the efficient education of other children.

[45]He submitted that in considering whether there would be incompatibility, it was necessary for the Tribunal to consider whether the adverse impact on the efficient education of other children would be so great as to make it incompatible. For that proposition he relied on the decision of Gibbs J in the case of Essex County Council v SENDIST [2006] EWCH 1105 Admin. That was a case in which Gibbs J was considering the equivalent provision in paragraph 8(2) of Schedule 27 to the Act, and, in particular, paragraph 82(b)where the local educational authority is required to comply with the parental request unless:

"the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources."

[46]Gibbs J was concerned with the question of the inefficient use of resources, and in relation to how that should be approached he said this:

"27. There remains, therefore, the issue in this case; namely, that of the efficient use of resources and whether the attendance of the child would be 'incompatible' with it. That means in plains terms: will the costs be so high as to be incompatible with the efficient use of the LEA's resources? From now on, in order to summarise that proposition, I shall use the word 'disproportionate'. ... 30. In my judgment, it would be a matter of fact and degree whether any proven increase in costs is so substantial as to be incompatible with the efficient use of resources. 31.Insofar as those decisions do assist they show, in my judgment, that a two-stage test must be applied; that is, unless it can be shown that one of the exceptions in para 8 applies, parental wishes must be followed. Only if one or more exceptions do apply should the LEA or the tribunal, in the case of an appeal, carry out the sort of broad balancing exercise which would weigh the amount of resources involved in maintaining the child at a particular school, the relative merits of possible schools for the child and a broad range of relevant educational factors. 32. That finding does not, however, conclude the matter, as it does not follow that the first stage in itself requires anything other than a balancing exercise. In my judgment, the first stage, namely consideration of possible exceptions, does involve a balancing exercise. It is important to define the nature and limits of that balancing exercise. In my view it should consist (in this case) of a judgment about whether in given circumstances any extra expense in fulfilling parental wishes is, in the sense I have defined it, disproportionate. ..."

[47]In my judgment, of the two stages to which Gibbs J was referring the first was the question whether the exception was made out, as to which the balancing exercise to which he referred was, as I read it, a shorthand for addressing the question whether the costs of giving effect to the parental wishes would be so high as to be incompatible with the efficient use of the LEA's resources. That is what he referred to as disproportionate.

[48]Applying that approach to the question of incompatibility with the provision of efficient education, in my judgment would lead to the approach that the question for the tribunal would be to ask themselves whether the effect of J attending Dove House School, and any adverse impact on the efficient education of other children with whom he would be educated, would be so great as to be incompatible with the provision of efficient education.

[49]In my judgment there is force in Mr Wolfe's submission that the tribunal did not ask itself that question. It simply equated the fact, as would appear to be obvious, given the evidence, that there would be some impact on the efficient education of other children with whom J would be educated, with his attending the school being incompatible with the efficient education of those children. In my judgment, the one does not necessarily follow from the other, and that is a question which the Tribunal should have asked itself.

[50]As to the second stage to which Gibbs J referred in the Essex case, that, in my judgment, must be a reference to the general exercise of discretion which in this case arises under section 324(4) of the Act. Accordingly, the first ground of appeal is made out.

[51]So far as the second ground of the cross-appeal is concerned, it is that the Tribunal, even if it had properly found incompatibility under section 33(b) of Schedule 27, was wrong not to proceed to a balancing exercise weighing up the arguments for and against J's attendance. That is, to all intents and purposes, the same point, in my judgment, as Mr Moffett's second ground of appeal, that is to say that section 9 was not determinative and that what should have been done was that the Tribunal should have gone on to address the general discretion under section 324, the second stage of Gibbs J's balancing exercise in the Essex case.

[52]In these circumstances, in my judgment, this appeal succeeds, as does the cross-appeal, and that gives rise to the question of what happens next. I should point out at this stage that at the end of the argument both counsel agreed that in the event of the appeal succeeding, and indeed of the cross-appeal succeeding, the appropriate course would be for me to remit this matter back to the same Tribunal with the same constitution, and that is what I shall do.

[53]I should add that there is a disturbing background to this case, which makes it of the greatest possible importance that this matter should be dealt with as expeditiously as is at all possible by the Tribunal, and that is because I am told by J's GP that J is currently out of school and only receiving up to 5 hours of home education per week. Furthermore his GP has said he is depressed. He has recently tried to kill himself. His mother and the GP agree that this is as a result of his being out of school and not spending any time with peers and established friends. He is extremely anxious about not knowing which school he will later attend, but it was agreed that it was not appropriate for him to start at a new school on a temporary basis knowing that the future there was uncertain.

[54]I am told that he has been out of school since September 2008. It is therefore devoutly to be hoped first, that this matter is dealt with as expeditiously as possible by the Tribunal and second, that in the light of this judgment and the guidance given in it, it will be possible for this matter finally to be determined by the Tribunal in a way which will bring finality and lead to no further litigation.

[55]What is it, therefore, that the Tribunal must do? I should say, first of all, that it is agreed between counsel that the scope of what it is necessary for the Tribunal to do is comparatively narrow and limited, given the very detailed findings of fact that it has already made and the considerable investigation that it has already carried out on the appeal.

[56]In my judgment it should carry out the following steps. The first step is to reconsider paragraph 33(b) of Schedule 27 to the Act. In considering that, and in particular in considering whether J's attendance at Dove House School would be incompatible with the provision of efficient education for the children with whom he would be educated, they should consider not just the question which they appear to have considered, whether it would have an impact on the efficiency of the education of those children, but whether that impact is so great that his attendance would be incompatible with the efficiency of their education.

[57]It is possible to see that on the basis of the evidence to which they refer in the judgment and the findings they have made, that this is an area which may involve some judgment and some question of degree. Thus, we are told that the school roll is 149, whereas it should be 150, so that there is nominally one spare place under the 150 target. We are told that there are three classes of 11 children and that there must come a point, as the Tribunal have found, where the numbers in a classroom reach such a level that they must impact on the ability of the staff to provide the same level of education to all the children. The question is whether having one of those three classes with 12 children reaches that level, and, if it does reach that level, whether that impact is so great as to be incompatible with the efficient education of those children.

[58]There is also evidence that there will be a significant increase in the overall number of children in the school in September 2009, and that, no doubt, will be one of the questions to be taken into account as to whether steps can be taken so as to mitigate that; whether the effect of that is, or is not, going to be such, taken together with all other matters, as to be incompatible with the efficient education of the other children, rather than merely having an impact or even an adverse impact on it.

[59]If they do not conclude that J's attendance would be incompatible with the provision of efficient education for the children, that is the end of the matter and they then are under an obligation under paragraph 3 to direct the Council to specify Dove House School in J's statement. If, on the other hand, they find that his attendance would be incompatible with the provision of efficient education for the children with whom J would be educated, then they must go on to consider their discretion under section 324 of the Act. Section 324(4) requires them to specify the name of any school or institution which they consider would be appropriate for J, and should be specified in the statement. That, in my judgment, involves an exercise of discretion and it is one in which they are entitled, and indeed bound, to take into account and balance all relevant factors.

[60]One of the matters that they will have to take into account in addressing their discretion under section 324(4) is what, if any, impact section 9 of the Act has? That exercise will involve their considering whether educating J in accordance with the wishes of his mother, that is to say at Dove House, would be compatible with the provision of efficient instruction and training.

[61]In considering that question they must ask themselves not just whether it is compatible with the provision of efficient instruction to J, but whether it is compatible with the provision of efficient instruction generally, which, on the facts of this case, must include both J and the other children with whom he would be educated. If they conclude that it would be incompatible, then they are not obliged in considering their discretion under section 324(4) to give effect to the wishes of J's mothers.

[62]Whatever finding they make on section 9 as to compatibility or incompatibility is not dispositive of their task in exercising their discretion under 324(4), because if they find that it is compatible, although they must have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, that is only one of the matters that they must take into account.

[63]There is still a general discretion at large under section 324(4). They must take into account those matters which are relevant to the exercise of the discretion. On the facts of this case it may well be that they will consider that the matters to be taken into account include the effect on the other children of J's attendance, on the one hand, and, on the other hand, the effect on J either of attending or of not attending. By the same token, whether they find compatibility or incompatibility under section 9, among the factors that they are entitled to take into account in the exercise of their discretion are the reasons lying behind the choice of Dove House School by J's mother, Ms R. Those are matters to be weighed in the balance against any adverse impact on other children at Dove House School were J to attend.

[64]In that context I refer to a passage in the evidence of Ms R:

"I do not agree that The Samuel Cody is an appropriate place for [J]. The Samuel Cody is a special school for statemented pupils with moderate learning difficulties; the majority of pupils enter the school with 'well below' average learning skills and, although good progress is made, standards at the end of years 9 and 11 are still well below average. [J] is a very bright boy who has Asperger's. I believe that in a learning environment specifically tailored for ASD children [J] will be able to bridge the attainment gap and achieve standards that are in line with his peers. Also the Samuel Cody's Ofsted report states that those with ASD do not achieve as well as they might. The school's, "own analysis shows that those with ASD do not achieve as well as they might in practical subjects such as physical education. ... In order that he is given the best opportunity to bridge the attainment gap between himself and his peers [J] needs a school that can provide a learning environment and teaching methods specifically tailored to pupils with ASD. I would therefore like [J] to attend a school that has extensive experience and a proven track record in helping pupils with ASD, including Asperger's Syndrome."

[65]Thus, even if the Tribunal finds incompatibility under section 9, that is not the end of the process. It does not mean that the Tribunal thereby is entitled to ignore the reasons lying behind Ms R's choice of Dove House School. Those are matters still to be taken into account by the Tribunal in the exercise of its discretion under section 324(4) and to be weighed in the balance among the other factors which the Tribunal considers to be relevant.

[66]In the event that they reach a finding of incompatibility under section 9, although they are not then obliged to give effect to Ms J's wishes, it does not follow that that is a matter that falls entirely out of consideration in the overall balancing exercise, but it is a factor to which they may feel less weight would be given than if they reached a different finding in relation to compatibility under section 9.

[67]I hope that with that guidance it will be possible for the Tribunal, as soon as may be, to revisit this difficult case and to reach a conclusion on the appeal to it.

[68]MR MOLLETT: I am very grateful for that, and particularly grateful for the detailed guidance that your Lordship has given to the Tribunal, which will assist them and also the parties. I wonder if I might suggest three corrections that I noticed while your Lordship was giving judgment. They were very minor ones, which I suspect were simply slips of the tongue. First, towards the very beginning of your Lordship's judgment you said that Hampshire County Council were contending that the Council misconstrued its duty where, of course, we were contending that it was the Tribunal. Then later on (I may have misheard your Lordship) your Lordship was referring to the sections in the 1996 Act that Mr Wolfe relied upon as having different wording from section 9. I heard your Lordship refer to Schedule 7. It should be Schedule 27. Finally, your Lordship was referring to the submission on the policy behind section 9 in relation to that same point, and I think your Lordship referred to Mr Wolfe's submission as to the policy, whereas I think it was my submission. Those were the only three matters.

[69]MR WOLFE: I agree with all of those. I have one probably even more trivial point. My Lord refers to Ms R's evidence towards the end, it was actually her grounds of appeal to the Tribunal.

[70]MR JUSTICE STADLEN: I hope, without too much imposition on the shorthand writer, those mistakes can be actually fed into the transcript.

[71]MR MOLLETT: Following on from that it would obviously be helpful for the parties and the Tribunal to have a transcript of your Lordship's judgment to hand when the matter comes back for reconsideration. I suspect that both parties would be very keen if your Lordship would be prepared for an expedited transcript. That would speed up the process.

[72]MR JUSTICE STADLEN: I think it is crucial. There is no point in my giving directions to the Tribunal if they cannot read them. There can be no expedition in the hearing if the transcript is not expedited. I direct that the transcript should be expedited.

[73]MR MOLLETT: The final point from my side is the question of costs. Given that your Lordship has found the appeal succeeds, albeit that I accept that Mr Wolfe's cross-appeal, to a certain extent, also appeals, essentially I would say that Hampshire have won. I would ask for an order that the first respondent pay Hampshire's costs. I should stress I think Ms R is legally aided. It would be subject to the normal order.

[74]MR WOLFE: In the light of my Lord's very balanced judgment overall, in a sense it is the Tribunal that has lost rather than either of the parties. My suggestion would be no order for costs as between the parties. I, of course, need the ordinary order of detailed assessment of my client's publicly funded costs.

[75]MR JUSTICE STADLEN: It is difficult not to feel in this case a certain sympathy with the first respondent who is in the position, the second respondent not choosing to defend its position, of having to do the best she can. The cross-appeal was also allowed. I have found that the Tribunal erred on both sides and unless you press me very strongly my implication would be to make the order.

[76]MR MOLLETT: I hear what my Lordship says. If I can perhaps just make a point in response to that? Of course it was entirely Ms R's decision to choose to defend the appeal in the absence of the Tribunal, and in relation to the cross-appeal. In fact when it boiled down to it it was a very, very short point. The parties were agreed as to what the Tribunal should have done in relation to Schedule 27. It was simply a very short question of whether they had actually read the decision. That part of the argument took up no more than a matter of minutes yesterday once one really got to the nub of the issue.

[77]MR JUSTICE STADLEN: It could be said that the Council not having conceded the point it was necessary for Ms R to attend in order to get the cross-appeal through.

[78]MR MOLLETT: The difficulty with that, no disrespect to Mr Wolfe, is that even in the course of argument yesterday it was a little unclear as to exactly what the cross-appeal was. Certainly the point that your Lordship decided in favour of the cross-appeal was not the point that appeared to be put in the skeleton argument --

[79]MR JUSTICE STADLEN: Maybe, maybe not. I am not sure. If you read the skeleton argument with biblical scrutiny I think one can find it there. In my judgment, having regard to the overall circumstances of this case, the right order is to make no order as to costs. What direction do you need?

[80]MR WOLFE: An order that the claimant's publicly funded costs be subject to detailed assessment. I am not sure whether I need to remind you, as you made the non-identification order earlier on, whether that needs to get into the order.

[81]MR JUSTICE STADLEN: I make an order pursuant to the Children and Young Persons Act 1933 that there should be no report of this case, or my judgment, in any form which enables the identity of the first respondent or her son, who is the subject of those proceedings, to be identified.

[82]MR WOLFE: There is a practical question. It may be something my Lord does not want to trespass into it, which is the process hereon in of dealing with the expedited rehearing of the issue in the appeal. We are grateful for the indication of speed and for the transcript. What we suggest should happen in that process is that the parties make brief written representations to the Tribunal, which can then, to facilitate the expedition, deal with those things in writing. That may make it easier for the panel to convene. They then may not need to physically get together in a room. That would be the speediest way of dealing with it and it would allow the parties to put in their observations, such as they wish to do so, at this stage.

MR JUSTICE STADLEN: Is it Ms R's intention to instruct counsel?

[84]MR WOLFE: I doubt it. It is not normal in the Tribunal process that there are legal representatives. We suggest that the narrowness of the issue could be dealt with with written submissions, if necessary, to update the facts to be dealt with speedily.

MR JUSTICE STADLEN: Yes.

[86]MR WOLFE: Set the law out. There is no need for lawyers.

[87]MR JUSTICE STADLEN: I have, but I am really just concerned on the part of Ms R and J that they should have a fair crack of the whip, and that any legal doubts or factual doubts of the Tribunal should be capable of being addressed by her representatives. I am wondering whether it is in her interest to exclude an oral hearing. I suspect a lot of the factual stuff could be agreed between the parties, in any event.

MR JUSTICE STADLEN: Do you want to take instructions?

[89]MR WOLFE: Our concern is a pragmatic one which is this: in the normal course of events, as I indicate, parties to Tribunals are not represented by professional advocates simply because there is no public funding for that to happen. In the course of it she would be unlikely to be represented at an oral hearing. On the other hand, the LEA would have, if not a professional lawyer, at least an experienced LEA officer. Her best interests would be served in this narrow sense by having it in writing, where the solicitor would be helped under the existing funding regime.

[90]MR MOLLETT: As I indicated yesterday, the council's strong preference would be for an oral hearing. In my respectful submission, whatever view your Lordship takes of the matter, this should be a matter for the Tribunal itself to decide. The Tribunal, in the light of your Lordship's judgment, will know the broad issues it is going to grapple with. It really is for the Tribunal to decide what the best way of grappling with those issues is going to be. In any event, I am not sure of the extent to which your Lordship has jurisdiction to order the Tribunal to deal with this in a certain way.

[91]MR JUSTICE STADLEN: I do not. All I can do is give an indication.

[92]MR WOLFE: I think that is probably right.

[93]MR JUSTICE STADLEN: I am invited by the first respondent to give an indication that this matter should be dealt with on paper in order to reach as expeditious a conclusion as possible. The Council asks for an oral hearing. I emphasise that it is accepted that I have no jurisdiction to make any direction in this regard. I would merely observe that, as has already been made clear in my judgment, it is to the highest degree important that the Tribunal resolves this question on the remitted determination as soon as ever possible. If it be the case that it can, for practical reasons, deal with this matter more quickly in writing than by having an oral hearing, they may well consider that in the interests of justice is the right thing to do.

[94]MR WOLFE: My Lord, I am very grateful.

MR JUSTICE STADLEN: Is there anything else?

[96]MR MOLLETT: No, my Lord.

MR JUSTICE STADLEN: Thank you both very much, indeed.

Cited in 12 later judgments

and 3 more of the most senior