B, R (on the application of) v Metropolitan Borough Of Wirral & Anor

An educational authority must implement the special educational provision specified by a Special Educational Needs Tribunal. Where the Tribunal’s order requires one-to-one support to be available throughout the school day, the obligation does not ordinarily require a particular assistant to provide exclusive and continuous attendance. The order is construed objectively, even where its wording was agreed by the parties. The authority may organise a pool of suitably experienced assistants, provided support is available when needed and reasonable observation and immediate assistance are maintained. A document issued by administrative mistake does not displace the Tribunal’s order where it was not intended to amend the statement independently and caused no prejudice.

B, through her father and next friend, sought judicial review of the Metropolitan Borough of Wirral and the governors of Elleray Park School. She alleged that the authority had failed to comply with a Special Educational Needs Tribunal order requiring one-to-one support to be available for every hour of every day she attended school.

The High Court held that the operative statement was the version retained by the authority, which replicated the Tribunal’s wording, and that the wording did not require dedicated exclusive support. The appeal concerned the correct statement, the construction of the Tribunal order, the effect of an erroneously issued statement, and whether relief should be granted.

1. Appeal dismissed. The authority’s statutory duty was determined by the order of the Special Educational Needs Tribunal and the statement which faithfully replicated it. The statement sent to B’s parents contained an administrative error and did not acquire operative effect as a separate amendment.
2. The statutory scheme under Education Act 1996, including sections 324 and 326 and Schedule 27, required the authority to make and maintain a statement and arrange the provision specified in it. The Tribunal’s order defined the provision following the parents’ appeal. The authority was entitled to rely on that order as marking the limits of its obligations.
3. The order was to be construed objectively. The phrase requiring one-to-one support to be available for every hour of every day did not require a named assistant to provide exclusive and continuous attention. It permitted a pool of suitably experienced assistants, provided one-to-one support was available whenever required, reasonable observation was maintained, and immediate assistance could be given in a crisis.
4. The court accepted that an authority which intentionally made a more advantageous amendment, acceptable to the parents, might not breach its duty merely because the amendment differed from the Tribunal’s order. That did not assist B, since the document relied upon was issued by genuine clerical mistake and did not cause prejudice.
5. The judge was entitled to refuse oral evidence and to exercise his discretion against relief. A further order requiring service under Schedule 27 would have enabled an impermissible attempt to relitigate the issue already determined by the Tribunal. Regulation 36 of the Special Educational Needs Tribunal Regulations 1995 permitted such an appeal to be struck out.

• Court of Appeal (Civil Division) [2000] EWCA Civ 262: appeal from the High Court dismissed.
• High Court of Justice, Queen’s Bench Division: Maurice Kay J refused the application for judicial review on 17 February 2000.