Regina -v- Secretary of State for Education ex parte "S"

Fairness in a statutory administrative appeal does not ordinarily require disclosure of internal departmental advice. Advice based on material already available to the parties forms part of the decision-making process and need not be disclosed. Disclosure is required where the decision-maker or advisers introduce a new point or fresh evidence on which the parties have had no opportunity to comment.

Fairness does not require tentative conclusions to be put to the parties merely because the decision-maker may reach a different conclusion. The statutory scheme under the Education Act 1981 was sufficient, the decision was rational, and no amendment to the statement was required.

The parents of E, a child with learning difficulties, challenged the Secretary of State’s decision under the Education Act 1981 concerning the special educational provision specified in E’s statement.

Sedley J granted judicial review and quashed the decision because the Secretary of State had not disclosed an internal expert evaluation. He rejected the irrationality challenge and made no specific finding on the proposed amendment to Part II of the statement.

The Secretary of State appealed. The parents cross-appealed on irrationality and the alleged failure to amend Part II. The central issues were whether fairness required disclosure of in-house advice and whether the decision or statement was otherwise legally flawed.

Russell LJ delivered the leading judgment. Beldam LJ agreed with both draft judgments. Peter Gibson LJ agreed with Russell LJ and added comments on fairness. The decision was unanimous.

1. Disclosure and fairness. The appeal to the Secretary of State was an administrative statutory appeal. The scheme under the Education Act 1981 gave the parties adequate opportunities to present their cases. It did not require the Secretary of State to disclose every internal evaluation before reaching a decision.
2. Internal departmental advice. Mr Woodhouse’s report introduced no new evidence. It was an in-house critical analysis of material already supplied by the parents and the local education authority. Such advice was an integral part of the decision-making process. Following the reasoning in Bushell and Another v Secretary of State for the Environment [1981] AC 75, it was not equivalent to receiving fresh external evidence after the parties’ opportunity to make representations had ended.
3. Limits of the duty. Fairness would require disclosure of a new point or fresh evidence on which the parties had not been able to comment. It did not require disclosure of a tentative conclusion merely because the Secretary of State might depart from both parties’ positions. The court distinguished Regina v Secretary of State for Health, ex parte United States Tobacco International Inc [1992] 1 QB 353, where the advice came from independent experts and directly supported a major regulatory change.
4. Cross-appeal. The Secretary of State’s conclusion was rationally open on the material before him. The factual error identified in an affidavit did not show that the decision fell outside the proper exercise of his discretion. There was no statutory requirement for Part II of the statement to include the causes of E’s difficulties, so no amendment was required.

The Secretary of State’s appeal was allowed and the parents’ cross-appeal was dismissed.

• Court of Appeal (Civil Division): [1994] EWCA Civ 37. The Secretary of State’s appeal was allowed and the parents’ cross-appeal was dismissed.
• High Court of Justice: On 21 December 1993, Sedley J granted judicial review and quashed the Secretary of State’s decision on procedural fairness grounds. He rejected the irrationality challenge and made no specific finding on the proposed amendment to Part II.