A v London Borough Of Southwark

A consent order recording special educational provision must be construed in its statutory and factual context. Where the provision reproduces an obligation in a statement of special educational needs, it will not ordinarily be treated as independent of that statement unless the order clearly says so. The court must ascertain the meaning conveyed to a reasonable person with the relevant background knowledge, applying the principles in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896. On the proper construction here, the obligation continued only while the statement was maintained. The later tribunal order ending maintenance therefore discharged the local authority’s obligation under the consent order.

The claimant, a young person with special educational needs, sought judicial review to enforce a consent order made on 16 June 2003. The order required the defendant local authority to provide five hours each week of individual teaching support in literacy and numeracy, alongside provisions expressly linked to the claimant’s statement of special educational needs.

The defendant did not provide the five hours. The Special Educational Needs Disability Tribunal subsequently ordered the defendant to cease maintaining the statement, finding that the claimant’s needs were most appropriately met in further education. The central issue was whether the obligation recorded in paragraph 1 of the consent order survived the cessation of the statement.

1. Claim dismissed. The defendant was not required to continue providing the five hours of individual teaching support after the statement of special educational needs ceased to be maintained.
2. The consent order was construed by ascertaining the meaning it would convey to a reasonable person with the background knowledge reasonably available to the parties. The principles stated in Investors Compensation Scheme Ltd v West Bromwich Building Society [1998] 1 WLR 896 applied.
3. Paragraph 1 of the consent order was taken directly from the educational provision in the statement. Paragraph 2 expressly referred to the statement and to the specialist assistance described in paragraph 1. The order therefore recorded a means of enforcing the existing statutory provision, rather than creating a free-standing obligation independent of the statement.
4. The parties intended the statement to continue until the local authority determined to cease maintaining it or the Tribunal resolved the appeal. The claimant’s argument that it automatically ended when he ceased to be of compulsory school age was unnecessary to decide. In any event, the parties’ conduct was consistent with continued maintenance until the Tribunal’s decision.
5. For completeness, the court accepted the defendant’s submission concerning section 19(4) of the Education Act 1996. That conclusion was unnecessary to the disposal of the claim.

The application for judicial review was dismissed. The claimant was ordered to pay the defendant’s costs on the usual Legal Services Commission-funded basis, with the claimant’s costs to be assessed under the Community Legal Service (Costs) Regulations.

The judgment describes earlier proceedings but no appeal from the decision under review.

• High Court, Administrative Court: A consent order was made on 16 June 2003 in earlier judicial review proceedings. The Special Educational Needs Disability Tribunal ordered cessation of the statement on 6 February 2004. The present application for judicial review was dismissed.