O, R (on the application of) v Wiltshire County Council & Anor

An appeal concerning a statement of special educational needs may remain justiciable after the child changes local authority, where unresolved provisions in the statement continue to bind the receiving authority pending a fresh assessment. An issue raised by a tribunal but not determined should be remitted for determination by a fresh tribunal. The court may extend time for service where the delay causes no continuing prejudice and the extension is otherwise proper.

The claimant challenged a Special Educational Needs Tribunal decision concerning his son’s statement of special educational needs, particularly the educational provision specified in Part 3 and the school named in Part 4.

Before the judicial review was determined, the family moved from Wiltshire to Lincolnshire. The parties accepted that the dispute about the named school had become academic, but agreed that the issue of hydrotherapy and associated facilities had not been addressed by the tribunal and should be remitted. The court also considered the effect of the transfer of the statement and the claimant’s late service of the appeal.

1. Disposition. The agreed order was made. The outstanding issue concerning hydrotherapy and associated facilities was remitted to a fresh tribunal. There was no order as to costs, save that the claimant’s costs were to be assessed for Legal Services Commission purposes.
2. The issue concerning the identity of the appropriate school had become academic because the family was moving to Lincolnshire and neither school would thereafter be appropriate. It was therefore unnecessary to determine whether the tribunal had correctly named the maintained school.
3. The appeal nevertheless retained a live issue. Under section 23 of the Education (Special Educational Needs) (Consolidation) Act 2001, the statement transferred to the new local authority and remained binding, at least until that authority made a fresh assessment.
4. The tribunal had plainly failed to deal expressly with the hydrotherapy issue, which it had itself raised. Remittal was therefore a proper means of resolving that outstanding question.
5. The court did not substitute Lincolnshire for the existing parties. The President of the tribunal could determine whether procedural steps were required under regulations 41 and 43 of the Special Educational Needs Tribunal Regulations 2001, including transfer to another tribunal. The court also extended time for service under CPR Part 52, paragraph 4(3)(b), to 1 July 2004.

The claimant appealed to the Administrative Court from the decision of the Special Educational Needs Tribunal. The tribunal’s decision was not formally quashed in full; the agreed unresolved issue was remitted to a fresh tribunal, while the dispute about the named school was treated as academic.