O v Harrow London Borough Council

A further appeal to the Special Educational Needs Tribunal may arise where the local education authority, after a remittal under section 325(3)(c) of the Education Act 1996, makes a fresh decision not to make a statement of special educational needs. The phrase “after making an assessment under section 323” is not confined to the immediate decision following the assessment. The original assessment is not spent merely because the first decision has been appealed and reconsideration ordered. Judicial review is not an adequate substitute where the tribunal can determine the educational merits. The tribunal may, however, strike out truly scandalous, frivolous or vexatious appeals under regulation 36(2)(b) of the Special Educational Needs Tribunal Regulations 1995.

The parents of a child appealed against a decision of the Special Educational Needs Tribunal that it had no jurisdiction to hear their challenge to a second local education authority decision not to make a statement of special educational needs.

The authority had assessed the child under section 323 of the Education Act 1996 and decided not to make a statement under section 324. The parents appealed under section 325. The tribunal remitted the case under section 325(3)(c) for reconsideration. After reconsideration, the authority again declined to make a statement and amended the note in lieu. The tribunal struck out the second appeal, and Maurice Kay J dismissed the parents’ statutory appeal. The central issue was whether the second decision was a decision made “after making an assessment under section 323”.

1. Appeal allowed. The authority’s second decision, made after reconsideration following remission by the Tribunal, was properly regarded as a decision made after the section 323 assessment. Section 325 did not confine the right of appeal to the first decision immediately following the assessment.
2. The language and structure of section 325 required an assessment and a decision proposing not to make a statement. They did not exclude a fresh right of appeal after an intervening appeal and remission. The original assessment was not rendered purely historical or spent.
3. This construction was supported by the statutory policy. A further appeal to the specialist Tribunal was more appropriate than judicial review, which would address only the legality or tenability of the decision rather than the educational merits.
4. The possibility of repeated appeals did not justify restricting the jurisdiction. Further appeals would arise only after adverse reconsidered decisions following remission. If changed circumstances made a further assessment essential, the Tribunal could dismiss the appeal.
5. The Tribunal also retained its power under regulation 36(2)(b) of the Special Educational Needs Tribunal Regulations 1995 to strike out appeals that were truly scandalous, frivolous or vexatious. The court expressed no view on whether that power should have been exercised in this case.
6. Lord Justice Waller and Lord Justice Sedley agreed with Lord Justice Simon Brown. The order below was set aside as to costs; the appellants received 80 per cent of the costs below and the full costs of the appeal. Permission to appeal to the House of Lords was refused.

• Court of Appeal: Allowed the appeal from the decision of Maurice Kay J and set aside the order below as to costs.
• High Court, Queen’s Bench Division, Administrative Court: On 12 July 2001, dismissed the parents’ statutory appeal from the Tribunal’s decision that it lacked jurisdiction.
• Special Educational Needs Tribunal: On 14 March 2001, struck out the second appeal on jurisdictional grounds.