London Borough of Bromley v Special Educational Needs Tribunal & Others

"Special educational provision" under Part IV of the Education Act 1996 is not confined to classroom teaching and has no rigid boundary separating educational from non-educational provision. Therapies may fall within special educational provision where they relate directly to the child's learning difficulties, even if they also have therapeutic or health-related functions.

The classification is primarily for the local education authority and, on appeal, the Special Educational Needs Tribunal. The High Court may intervene for error of law, jurisdiction or procedural unfairness, but must respect the Tribunal's expert judgment within that legal framework. A Tribunal's order must nevertheless be sufficiently specific to permit reliable incorporation into the child's statement.

The local education authority appealed from the decision of Owen J, who had dismissed its appeal from a Special Educational Needs Tribunal decision. The Tribunal had allowed the parents' appeal concerning their severely disabled son's statement of special educational needs.

It had concluded that physiotherapy, occupational therapy and speech and language therapy were educational needs, and had ordered a residential placement at Coney Hill School rather than Rectory Paddock School. The authority challenged the classification of the therapies, the specificity of the Tribunal's directions, and the failure to allow further consideration of alternative placements.

The central issues were the limits of "special educational provision" under Part IV of the Education Act 1996, and the proper appellate approach to the Tribunal's evaluative judgment.

1. Disposition. The appeal was allowed only to the limited extent of removing the direction that Parts 2 and 3 of the statement be amended. In all other respects, including the placement at Coney Hill School, the appeal was dismissed. The appeal was dismissed with costs, save as to that amendment, and leave to appeal to the House of Lords was refused.
2. Meaning of special educational provision. Section 312 makes special educational provision, in principle, whatever provision is called for by the child's learning difficulty and which is additional to or different from ordinary educational provision. Sections 312 and 324 do not create a rigid frontier between educational and non-educational provision. There is an intermediate area capable of being allocated to either category.
3. Therapies. Whether particular help relates directly to a child's learning difficulties is primarily a matter for the LEA and secondarily for the SENT's expert judgment. Physiotherapy, occupational therapy and speech therapy could therefore be educational provision in this case, although they were not exclusively educational. The statutory distinction between educational and non-educational provision did not prevent the Tribunal from reaching that conclusion.
4. Appellate restraint. The High Court's appellate jurisdiction requires intervention for an error of law, jurisdiction or due process. It should otherwise respect the substantial area of expert judgment entrusted to the SENT. The Tribunal's conclusions were legally and logically open to it.
5. Specificity and placement. A SENT decision must be sufficiently specific and clear to leave no doubt about what has been decided as necessary in the individual case. The direction to amend Parts 2 and 3 regarding the therapies was too imprecise. The placement decision was not invalid merely because the LEA had not been given another opportunity to propose alternatives; the authority had been expected to put forward its full case.

• Court of Appeal (Civil Division): Permission was granted and the appeal was allowed only to remove the direction concerning amendments to Parts 2 and 3. The remainder of the appeal was dismissed.
• Queen's Bench Division: Owen J dismissed the authority's appeal from the Tribunal's decision on 14 January 1999.
• Special Educational Needs Tribunal: On 24 August 1998, the Tribunal allowed the parents' appeal, ordered Coney Hill School to be named, and directed amendments concerning the therapies.