Burridge v. London Borough of Harrow and Others

The House of Lords held that, for the purposes of paragraph 3(3)(b) of Schedule 27 to the Education Act 1996 (re-enacting the relevant special needs provisions), the reference to the "efficient use of resources" means the resources of the local education authority which is responsible for the child and which makes the statement. The court distinguished the statutory scheme for special educational needs from the general school admission provisions (section 411 of the Act) and relied on the wording of Schedule 27, the structure of the Act, and the Secretary of State's Code of Practice which repeatedly refers to "the LEA's resources."

The Lords concluded that Parliament deliberately treated special school placements differently from ordinary school admissions and that consideration of other authorities' resources or of wider public resources was not required by paragraph 3(3) of Schedule 27. The House therefore allowed the local education authority's appeal and affirmed that the Tribunal and the High Court were entitled to limit their resource inquiry to the responsible LEA's resources.

This appeal concerned whether a parent who had expressed a preference for a special school maintained by another local education authority could be refused on the grounds that the child's attendance at that school would be "incompatible with . . . the efficient use of resources" and, if so, whose resources were to be considered.

Background and factual matrix:

• The child, diagnosed with Rett Syndrome, had severe disabilities and attended Whittlesea, a Harrow-maintained special school; the mother preferred Grangewood, a Hillingdon-maintained special school, for better physiotherapy and hydrotherapy facilities.
• Harrow made a statement of special educational needs naming Whittlesea. The mother appealed to the Special Educational Needs Tribunal which, in February 1997, concluded Whittlesea could meet the child's needs and accepted Harrow's argument that Grangewood would not be compatible with the efficient use of Harrow's resources.

Procedural history: The mother's appeal to the High Court (Moses J.) was dismissed. The Court of Appeal allowed the mother’s appeal and remitted for further consideration. On rehearing the Tribunal again dismissed the appeal (having this time considered both Harrow's and Hillingdon's resources); an appeal to Latham J. was dismissed. Leave to appeal to the House of Lords was granted.

Issues framed:

1. Whether paragraph 3(3)(b) of Schedule 27 requires the Tribunal (and the LEA) to consider the resources of other local authorities (or wider resources) when determining whether naming an out-of-borough special school would be incompatible with the efficient use of resources.
2. The proper construction of the statutory scheme for special educational needs as distinct from the general school admission provisions (notably section 411 and section 424 of the Education Act 1996 and earlier enactments).

Court’s reasoning:

• The House emphasised that Parliament had created separate schemes for special schools and for other schools; the absence of a provision equivalent to section 411(5) in the special needs provisions was deliberate and significant.
• The statutory language, the Code of Practice (which refers to "the LEA's resources"), and differences in funding mechanisms for special schools supported the interpretation that the resources to be considered are those of the responsible local education authority which makes the statement.
• Practical considerations and the structure of the special needs regime reinforced that local authorities should assess their own resources rather than being required to investigate broadly the resources of other authorities or public bodies.

Relief sought: The appellant LEA sought to uphold the Tribunal's and High Court's approach limiting resource consideration to the responsible LEA. The respondent parent sought a direction that the child be named at the out-of-borough school or, at least, that the Tribunal should take into account the resources of both LEAs (as the Court of Appeal had indicated).

Conclusion: The House allowed the appeal, holding that paragraph 3(3) refers to the responsible LEA's resources; the Tribunal and High Court were therefore entitled to restrict their resource inquiry to Harrow's resources.

Appeal allowed. The House of Lords held that paragraph 3(3)(b) of Schedule 27 to the Education Act 1996 (re-enacting the special needs provisions) refers to the resources of the local education authority which is responsible for the child and which makes the statement. The statutory scheme for special schools was treated as distinct from the general admissions provisions (such as section 411), the Code of Practice repeatedly refers to "the LEA's resources," and differences in funding arrangements for special schools supported the conclusion that consideration is properly limited to the responsible LEA's resources.