T (A Minor), Re

The local education authority (L.E.A.) owed an individual statutory duty under section 298 of the Education Act 1993 to make arrangements to provide "suitable" education to Beth, a child of compulsory school age who, by reason of illness, could not attend school. The House held that the statutory concept of "suitable education" is defined by educational criteria (for example, efficiency and suitability to age, ability, aptitude and special educational needs under section 298(7)) and that the L.E.A.'s available financial resources are not a relevant consideration when determining what education is "suitable" for an individual child.

Where more than one method of providing suitable education exists, the authority may lawfully take resources into account in choosing between those methods, but it cannot allow lack of funds to determine whether an individual child is entitled to the statutory standard of suitable education. The L.E.A.'s policy reducing home tuition hours from five to three on grounds of budgetary constraint was unlawful as applied to Beth, and Keene J.'s order quashing the decision was restored.

Background and facts.

Beth Tandy, born 8 February 1982, suffered from myalgic encephalomyelitis and was largely educated at home. The East Sussex County Council provided five hours per week of home tuition, initially under a statement of special needs and thereafter under section 298 of the Education Act 1993. In 1996 the L.E.A., facing severe budgetary pressures, proposed a policy reducing the normal allocation of home tuition from five hours to three hours for existing cases (and two hours for new cases). The reduction was implemented in Beth's case.

Procedural posture.

• This decision follows judicial review proceedings brought on 30 November 1996 challenging the reduction on three grounds: taking an irrelevant consideration (the L.E.A.'s finances), acting for an improper purpose, and irrationality.
• Keene J. quashed the L.E.A.'s decision (23 April 1997). The Court of Appeal by majority reversed that order ([1997] 3 WLR 884). The appellant appealed to the House of Lords.

Issues framed.

• Whether the L.E.A. could lawfully take into account its lack of financial resources when deciding what constituted "suitable education" under section 298(1) and (7) of the Education Act 1993.
• Whether adopting and applying a policy reducing hours of home tuition for financial reasons rendered the decision unlawful.

Reasoning and conclusion.

The House of Lords construed section 298 and its definition in subsection (7) as prescribing educational criteria (efficiency, suitability to age, ability, aptitude and special educational needs) for determining what is "suitable education". No wording in the statute indicated that an authority's resources should be part of that determination. Although a local authority may lawfully adopt policies to implement its duties and may have regard to resources when choosing between alternative ways to provide an objectively "suitable" education, it may not allow resource considerations to define or reduce the statutory standard owed to an individual child. The decision in Reg. v. Gloucestershire County Council, Ex parte Barry [1997] AC 584 was distinguished on its facts and statutory context. The House allowed the appeal and restored Keene J.'s order quashing the reduction in Beth's tuition hours.

Wider context. The Lords emphasised the need to respect statutory duties imposed by Parliament and warned against permitting budgetary pressures to downgrade duties into mere discretions; if Parliament intends resources to be a determinant of statutory entitlements, Parliament must so provide.

Appeal allowed. The House of Lords held that under section 298 of the Education Act 1993 (and in particular subsection (7)) the question what constitutes "suitable education" for an individual child is to be determined by educational criteria and not by reference to the local authority's available resources. While resources may be considered when choosing between different ways of providing education that is objectively "suitable", lack of funds cannot be used to deny the statutory standard to an individual. Keene J.'s order quashing the L.E.A.'s reduction of home tuition hours was restored.

Keene J. (High Court) quashed the L.E.A.'s decision to reduce Beth's home tuition (order of 23 April 1997). The Court of Appeal, by majority (Ward and Mummery L.JJ., Staughton L.J. dissenting), reversed Keene J. ([1997] 3 WLR 884; Court of Appeal order of 31 July 1997). The House of Lords allowed the appeal and restored the order of Keene J. ([1998] UKHL 20).