R v East Sussex County Council, Ex parte Tandy (Tandy, Ex parte)

Where a statute imposes an immediate duty to provide education suitable for an individual child, and defines suitability by objective educational criteria, a local authority's available resources are irrelevant when fixing the minimum standard it must provide. The authority may adopt a general policy and may consider resources when choosing between different means that would each provide suitable education. It cannot use a budgetary policy to reduce provision below that standard.

A court should not recast a statutory duty as a discretionary power merely because performance requires resources. A statutory scheme concerned with assessed needs and the necessity of meeting them may permit resource considerations, but that does not govern an objectively defined and immediate educational duty under the Education Act 1993.

Beth Tandy, a child whose illness largely prevented school attendance, received five hours of home tuition each week from East Sussex County Council. Following a substantial reduction in its home-tuition budget, the council adopted a policy reducing existing provision to three hours weekly. Its decision in Beth's case took financial considerations into account.

Keene J quashed the decision. A majority of the Court of Appeal reversed that order: [1997] 3 WLR 884. The council accepted before the House that the statutory duty was owed individually to each qualifying child, rather than to a class of children. The central issue was whether resources could lawfully be considered when deciding what constituted suitable education under section 298 of the Education Act 1993.

1. Appeal allowed unanimously. Lord Browne-Wilkinson delivered the leading speech. Lords Slynn, Nolan, Steyn and Hutton each agreed with his reasons. The House set aside the Court of Appeal's order and restored Keene J's order quashing the reduction in home tuition.

2. Per Lord Browne-Wilkinson, section 298 imposed a duty owed to each qualifying child. The duty was not discharged unless the arrangements actually provided suitable education for that child. Section 298(7) defined suitable education by educational criteria: efficiency, age, ability, aptitude and special educational needs. Those criteria did not include the authority's resources.

3. The council could formulate and use a policy when carrying out its duty. Individual consideration was also required. But neither a policy nor an individual decision could treat financial stringency as relevant to the educational standard required by section 298. If more than one method would provide suitable education, resources could properly influence the choice between those methods.

4. Reg. v. Gloucestershire County Council, Ex parte Barry, [1997] AC 584, did not alter that conclusion. The statutory duty considered there depended upon assessments of need and whether arrangements were necessary to meet it. Section 298 instead imposed an immediate obligation and expressly defined the required educational standard by objective criteria.

5. Lord Browne-Wilkinson further rejected the suggestion that resource controls prevented the duty from arising. The council could divert money from discretionary functions to perform its statutory duty. Treating a preference for other expenditure as an excuse for non-performance would improperly downgrade a duty imposed by Parliament into a discretion. The Court of Appeal's order was set aside, save as to legal-aid taxation, and the council was ordered to pay the appellant's costs.

• House of Lords: allowed Beth Tandy's appeal, set aside the Court of Appeal's order and restored Keene J's order.

• Court of Appeal: by a majority of Ward and Mummery LJJ, with Staughton LJ dissenting, allowed the council's appeal and reversed Keene J: [1997] 3 WLR 884.

• High Court: Keene J quashed the council's decision to reduce home tuition on grounds including reliance on an irrelevant financial consideration.