Youngson (A Child), R (on the application of) v Birmingham City Council

Under the Scholarship and Other Benefits Regulations 1977, a local education authority has a broad discretion to award fees for a fee-paying school. The discretion may be exercised only after the statutory conditions in regulation 6 are satisfied. Those conditions do not create a presumption that an award must be made. An authority may adopt a policy requiring evidence of exceptional circumstances, alternative funding and the inadequacy of alternative education, provided the policy does not frustrate the statutory purpose. Applicants must place before the authority facts peculiarly within their knowledge. Rationality is assessed on the material available to the decision-maker. Procedural fairness does not ordinarily require an invitation to provide further evidence where the policy clearly identifies the issue and the applicant knew of it.

A 13-year-old pupil sought financial assistance from Birmingham City Council to attend a full-time vocational dance course at Elmhurst Ballet School. The Council's policy required exceptional circumstances, including severe financial hardship, pursuit of alternative funding and evidence that suitable alternative education was unavailable or inappropriate.

After reconsideration, the Council maintained its refusal, relying on the availability of alternative funding and local education and dance training. Scott Baker J dismissed the judicial review application on 11 December 2000 and refused permission to appeal. The Court of Appeal considered whether the policy was ultra vires, whether the Council's conclusions were irrational, whether the procedure was unfair, and whether the Convention arguments succeeded.

The renewed application for permission to appeal was dismissed.

1. Statutory discretion. The Council's power derived from section 518 of the Education Act 1996 and regulation 4 of the Scholarship and Other Benefits Regulations 1977. Regulation 4 conferred a broad discretion to contribute towards fees and expenses at fee-paying schools. Regulation 6 imposed conditions which had to be satisfied before that discretion could be exercised. Satisfaction of those conditions did not require the Council to make an award whenever the pupil could not otherwise attend the school without financial assistance.
2. Policy. The Council was entitled to adopt criteria requiring an applicant to demonstrate exceptional circumstances, pursue alternative sources of funding and show compelling reasons why suitable alternative education was unavailable or inappropriate. The policy was lawful because it did not frustrate the statutory purpose.
3. Rationality and evidence. The committee was entitled to conclude, on the material before it, that alternative local tuition was suitable. A decision-maker cannot be criticised for failing to consider facts which were not placed before it. Matters peculiarly within the applicant's knowledge had to be brought to the committee's attention.
4. Procedural fairness. The policy clearly identified the need to establish that suitable alternative training was unavailable. The applicant had addressed part of that issue but had not explained why available local tuition could not be arranged for the family. The committee was not required to give advance notice of the precise ground on which it might reject the application or invite further evidence.
5. Other grounds. The court considered that there was force in the challenge concerning whether alternative funding from Elmhurst had been sufficiently investigated and would have been inclined to grant permission on that point. That issue was not finally determined. The arguments under Article 8 and Article 2 of the First Protocol to the European Convention on Human Rights were rejected for the reasons given by the judge, with which Dyson LJ agreed. The formal order was that the application be dismissed, with a public funding assessment.

• Court of Appeal (Civil Division)—dismissed the renewed application for permission to appeal on 22 February 2001.
• Queen's Bench Division (Administrative Court)—Scott Baker J dismissed the judicial review application on 11 December 2000 and refused permission to appeal.