Hill, R (on the application of) v Bedfordshire County Council

A local education authority may have power to fund further education outside the statutory special educational needs framework, but it must lawfully exercise that discretion. An exploratory enquiry to the Learning and Skills Council is not necessarily an application for funding. Where a statement of special educational needs is maintained and the authority decides that it should cease to be maintained, the authority must ordinarily follow Education Act 1996, Schedule 27, paragraph 11, including notice of appeal rights. Paragraph 9(2) permits informal cessation in the normal case where responsibility has ended and the statement has no continuing point. It does not prevent formal procedures where schooling ended unexpectedly and continuing special educational provision remains a live possibility.

Martin Hill had special educational needs and attended Cademuir International School in Scotland under a statement maintained by Bedfordshire County Council. Cademuir closed shortly before Martin’s planned final year. His parents selected Elmwood College in Scotland, a further education college, and sought continued funding and maintenance of the statement.

The Authority initially said that it lacked power to fund Elmwood and that the statement would lapse automatically. It later accepted a discretionary funding power under section 2 of the Local Government Act 2000, but refused to exercise it, stating that no application had been made to the Learning and Skills Council. The High Court quashed that refusal and declared that the Authority had unlawfully ceased maintaining the statement without notifying the parents of appeal rights. The central issues were whether the funding decision rested on an error of fact and whether the statement had lapsed or had been formally ceased without compliance with Schedule 27, paragraph 11.

1. Disposition. The Court of Appeal allowed the appeal against the order quashing the Authority’s funding decision, but dismissed the appeal against the declaration that the Authority acted unlawfully in ceasing to maintain the statement without notifying Martin’s parents of their right of appeal to SENDIST.
2. Funding decision. The Authority had power under section 2 of the Local Government Act 2000 to fund Martin’s education at Elmwood. Its decision was not vitiated by an error of fact. Read in context, the statement that Mr Hill had not approached the Learning and Skills Council meant that no application for funding had been made. The correspondence showed only an exploratory enquiry, followed by advice that approval might take up to 10 months.
3. Education Act 1996, section 15A. Section 15A was a target power directed to securing educational facilities for an authority’s area, including provision for persons from other areas. It did not empower the Authority to fund an individual pupil’s attendance at a further education college in Scotland.
4. Status of the statement. The definition of “child” in section 312(5) was not exhaustive. A person need not be a registered pupil at a school to remain a child for Part IV purposes. Schedule 27, paragraphs 9 and 11, contemplate a determination whether to cease maintaining a statement. Paragraph 9(2) applies to the normal case in which responsibility ends and the statement has no continuing point, such as an agreed move into further education. It does not exclude paragraph 11 where schooling has ended unexpectedly and there remains a live possibility of continuing special educational provision.
5. On the facts, the Authority had decided that the statement would cease when Martin moved to Elmwood. Its changing correspondence and its prior intention to maintain the statement until age 19 made it artificial to treat the statement as an automatic lapse. The Authority should therefore have given notice under paragraph 11(2), including notice of the right of appeal. Although an appeal aimed solely at securing Elmwood, which was not a school for section 312(5), would have failed, it was impossible to know whether a different school might have been named.

• Court of Appeal (Civil Division) — [2008] EWCA Civ 661: allowed the appeal against the quashing of the funding refusal, but dismissed the appeal against the declaration concerning unlawful cessation of the statement.
• High Court of Justice, Queen’s Bench Division, Administrative Court — Mr Justice Wyn Williams: quashed the Authority’s decision refusing to fund Elmwood and declared that the Authority acted unlawfully by ceasing to maintain the statement without notifying the parents of their appeal rights.