E v London Borough of Newham & Anor

A statement of special educational needs must identify the provision to be made with enough clarity to show what has been decided, but it need not prescribe every detail. A tribunal cannot delegate its statutory duty to decide the provision, or use language so vague that the decision cannot be discerned. Between those limits, the permissible degree of flexibility is for the tribunal, having regard to the circumstances of the individual case. A high degree of flexibility may be justified where the child’s needs are complex, educational and therapeutic provision overlap, current professional evidence is limited, and a suitable special school can assess and deliver the provision. In such a case, an individual education plan may lawfully be determined by the special school with the relevant therapists.

The appellant’s parents challenged a statement of special educational needs maintained for their severely disabled child. The Special Educational Needs Tribunal amended the statement but left the amount and method of therapeutic input to be assessed and monitored by therapists and the named special school. It required at least weekly direct teaching for visual impairment, but did not quantify the other therapies.

Mr Justice Stanley Burnton dismissed the parents’ appeal, holding that the statement was sufficiently specific and that the tribunal had acted lawfully. The parents appealed to the Court of Appeal, arguing that the tribunal had unlawfully delegated its decision-making function and should have adjourned to obtain further evidence. The central issue was the degree of specificity required in specifying special educational provision.

1. Appeal dismissed. The statement complied with the statutory requirements. The tribunal was entitled, in the circumstances, to leave the individual education plan to be determined by the designated special school in conjunction with the therapists.
2. The statutory duty has two limits. A tribunal cannot delegate its duty to another person or body, however well qualified. Nor is the duty discharged by wording so vague or uncertain that it is impossible to discern what the tribunal decided.
3. The legislation does not require every detail of provision to be specified or quantified. In an appropriate case, a tribunal may prescribe minimum requirements and retain flexibility for the assessment and delivery of provision. The appropriate degree of flexibility is essentially a matter for the tribunal, taking account of all relevant factors.
4. The tribunal’s approach was lawful and sensible. The child’s educational and non-educational needs overlapped and were highly complex; the parents had accepted a special-school placement for the time being; relevant staff were available at that school; the child had been out of school for a long period; professional advice was out of date; flexibility and assessment in the school context were desirable; and there were no conflicting expert assessments.
5. The court treated Bromley LEA v Special Educational Needs Tribunal [1999] ELR 260 as indicating that the statutory scheme did not prohibit this degree of flexibility. Since the statement was lawful, the tribunal’s failure to adjourn of its own motion disclosed no separate legal error. The appeal was dismissed with costs, and permission to appeal to the House of Lords was refused.

1. Court of Appeal (Civil Division): Appeal dismissed. The court upheld the conclusion that the statement was sufficiently specific and lawful: [2003] EWCA Civ 9.
2. Administrative Court: Mr Justice Stanley Burnton dismissed the parents’ appeal from the Special Educational Needs Tribunal: [2002] EWHC 915 (Admin).