Dean & Anor v East Sussex County LEA

A right of appeal under section 326(1)(b) of the Education Act 1996 does not extend to an amendment made pursuant to an order of the Special Educational Needs and Disability Tribunal under section 326(3)(b). A further appeal to the same Tribunal would undermine the finality of its own order.

The statutory scheme instead provides for review, including on the interests of justice ground, reassessment and periodic review of statements. The availability of those routes supports the purposive construction of section 326.

Following an annual review, the respondent LEA named A school in amended statements for the appellants’ disabled twin daughters. The parents preferred B school. The Tribunal agreed amendments to Parts 2 and 3, but dismissed the appeal concerning Part 4 and A school.

After the children attended A school, the parents appealed again, relying on changed circumstances and new material. The LEA applied to strike out the appeals, arguing that the Tribunal lacked jurisdiction because the statements had been amended pursuant to its own order. The Tribunal rejected that argument, but Mr Justice Jack allowed the LEA’s appeal in the Administrative Court. The central issue was whether section 326(1)(b) permitted a further appeal against such an amended statement.

1. Disposition. Lord Justice Hooper, with the President and Lord Justice Jacob agreeing, dismissed the appeal. The Tribunal therefore had no jurisdiction to hear an appeal against a statement amended in accordance with its own order. It was unnecessary to determine whether the later appeals were properly struck out as vexatious.
2. Statutory construction. Section 326(1)(b) of the Education Act 1996 gives a right of appeal where a statement is amended, but does not include an amendment ordered by the Tribunal under section 326(3)(b). Section 326(1A) identifies matters which may be challenged when an appeal exists; it does not create jurisdiction where section 326(1)(b) does not apply.
3. The legislative scheme had to be read purposively. The Tribunal’s decision was final, subject to its review jurisdiction and an appeal to the High Court on a point of law. A further appeal to the Tribunal against an amendment which it had itself ordered would amount to an appeal against its own order and would defeat the purpose of the scheme.
4. The express exclusion in section 326(2)(a) for amendments made under Schedule 27 paragraph 11(3)(b) supported that conclusion. The different source of the original appeal explained why the exclusion was expressed there, rather than implying that an appeal existed after an order under section 326(3)(b).
5. Authorities. R v Clwyd County Council ex parte A [1994] 1 FCR 334 concerned different legislation and a body which could remit a case for reconsideration but could not prescribe the form of the revised statement. It did not govern the present case. White v Aldridge and London Borough of Ealing [1999] ELR 150 (CA) and R (on the application of A) v London Borough of Lambeth [2001] EWHC 379 (Admin) had proceeded on assumptions about jurisdiction without deciding the point. The Queen on the application of MH v the Special Educational Needs and Disability Tribunal [2004] EWCA 770 provided no assistance.
6. The review procedure under Regulation 37 of the Special Educational Needs Tribunal Regulations SI 2001 No. 600 was the appropriate mechanism for a fundamental change of circumstances after a hearing. The President accepted that the interests-of-justice ground could encompass such a change even without an error in the original decision. The Court declined to give general guidance on extending time or using the review procedure.

1. Court of Appeal (Civil Division): Dismissed the parents’ appeal and held that the Tribunal lacked jurisdiction to hear a further appeal against the Tribunal-directed amendment.
2. Administrative Court: Mr Justice Jack allowed the LEA’s appeal under section 11(1) of the Tribunals and Enquiries Act 1992 against the Tribunal’s refusal to strike out for lack of jurisdiction. He also considered the later vexatiousness issue, although it was unnecessary to decide it once jurisdiction was denied.
3. Special Educational Needs and Disability Tribunal: Initially refused to strike out the parents’ appeals for lack of jurisdiction, but later struck them out as vexatious.