Wolverhampton City Council v The Special Educational Needs and Disability Tribunal

For the purposes of Part IV of the Education Act 1996, “child” is not confined to the registered-pupil definition in section 312(5) or the general definition in section 579. It includes, at least, a person under 19 in respect of whom the local education authority does or may owe obligations under Part IV.

A local education authority’s continuing statutory responsibility for the child is not a necessary condition of the parental right to appeal against a determination to cease maintaining a statement. The right of appeal under Schedule 27, paragraph 11(2), may therefore persist even where the authority is no longer responsible under section 321(3). The Tribunal may address the substance of the appeal where the authority purported to act under the paragraph 11(1) test.

Andrew Smith had a statement of special educational needs maintained by Wolverhampton City Council. He was educated otherwise than at school and, after reaching the end of compulsory school age, remained under 19. The Council funded his provision for an additional year but then informed his mother that the statement had lapsed and would no longer be maintained.

Mrs Smith appealed to the Special Educational Needs and Disability Tribunal. The Tribunal dismissed the Council’s application to strike out the appeal and upheld its jurisdiction on review. The Council appealed to the Administrative Court, contending that Andrew was no longer a “child” for the statutory purposes, was no longer its responsibility, and had not been the subject of a formal determination to cease maintaining the statement.

1. Appeal dismissed. The Tribunal had jurisdiction to hear the parental appeal.
2. The definition of “child” in section 312(5) of the Education Act 1996 is inclusive, not exhaustive. A person educated otherwise than at school may therefore remain a child for Part IV purposes. Section 579’s general definition is also subject to context. Read together, the provisions extend at least to a person under 19 in respect of whom the local education authority does or may owe obligations under Part IV.
3. The duty to make and maintain a statement under section 324 is not expressly made conditional on the child being one for whom the authority is responsible at the time the duty to maintain arises. The statutory scheme does not justify implying that condition.
4. Andrew was a child within Part IV but was no longer a child for whom the Council was responsible under section 321(3). Accordingly, the obligation in Schedule 27, paragraph 11(1), to maintain the statement while it remained necessary did not apply. That did not remove the separate parental right of appeal under paragraph 11(2).
5. Schedule 27, paragraph 9(2), disapplied only the obligation concerning the basis on which a statement could be amended or ceased to be maintained. It did not qualify the right of appeal in paragraph 11(2). The Code of Practice supported that construction because it contemplated formal steps, notification and a right of appeal during transition to further education.
6. On the facts, the statement had not lapsed automatically. The Council had decided that it would no longer fund Andrew’s education and would cease to maintain the statement. Having purported to act consistently with the paragraph 11(1) test, it was open to the Tribunal, exercising its appellate powers, to address the merits and order restoration if appropriate.

• Special Educational Needs and Disability Tribunal: dismissed the Council’s application to strike out Mrs Smith’s appeal for want of jurisdiction and upheld that decision on review.
• High Court (Administrative Court): dismissed the Council’s appeal and upheld the Tribunal’s jurisdiction.