C, R (on the application of) v London Borough of Brent

On a statutory appeal from a special educational needs tribunal, the court may intervene only for an error of law. A finding that a child’s needs can appropriately be met in a school is a factual finding which cannot be reopened on such an appeal. Where that finding is made, the statutory power to arrange education otherwise than at school is not engaged, and the suitability of an alternative non-school establishment does not arise for decision. The duty to have regard to parental wishes is a general principle, not an overriding right. Provisions concerning general special educational provision and payment of fees do not govern the review of an individual statement or determine whether education should be provided outside a school. Procedural duties to obtain information arise only where the relevant issue genuinely falls for determination.

The claimant appealed under section 11 of the Tribunals and Inquiries Act 1992 against a decision of the Special Educational Needs and Disability Tribunal dated 3 March 2003. The tribunal had dismissed her appeal under section 326 of the Education Act 1996 against the contents of her son’s statement of special educational needs under section 324. The statement named Burlington Danes School. The claimant sought provision at Sankofa Learning Centre, which was not a school within the meaning of the Act. The central issues were whether the tribunal had misdirected itself under sections 9 and 319, failed to apply other statutory provisions, or acted in breach of natural justice.

1. Appeal dismissed. The court’s jurisdiction under section 11 of the Tribunals and Inquiries Act 1992 was confined to points of law. The tribunal’s conclusion that the child’s needs could appropriately be met at Burlington Danes was a factual finding which could not be reopened.
2. Section 315 of the Education Act 1996 concerns the general arrangements made by an education authority for special educational provision. It does not govern the review of provision for an individual pupil. The court followed the reasoning in P and Others v Harrow London Borough Council [1993] 2 FCR 341.
3. Section 9 imposes a general duty to have regard to parental wishes, subject to efficient instruction and the avoidance of unreasonable public expenditure. It does not require the tribunal to decide in accordance with those wishes. The tribunal had considered the claimant’s wishes and was entitled to reach an adverse conclusion. The court relied on T v Special Educational Needs Tribunal and Wiltshire County Council [2002] EWHC 1474.
4. Section 517, concerning payment of fees where education is provided by a non-maintained school, had no bearing on whether education should be provided at such a school. Since the tribunal found that the child’s needs could appropriately be met in a school, section 319 did not permit specification of education otherwise than at school. The suitability of Sankofa Learning Centre therefore did not arise.
5. The tribunal’s observation that it would have required independent evidence about Sankofa Learning Centre did not found an error of law. The issue was hypothetical and had not arisen for determination. The inquisitorial duty described in W v Gloucestershire County Council [2001] EWHC Admin 481 applied where there was a genuine issue requiring decision, but was immaterial here.

1. Special Educational Needs and Disability Tribunal: On 3 March 2003, dismissed the claimant’s appeal concerning the school named in her son’s statement of special educational needs.
2. High Court (Administrative Court): On 24 June 2003, dismissed the statutory appeal on points of law.