D (A Child), R (on the application of) v Birmingham City Council

On judicial review, the court reviews the lawfulness of the decision-making process and does not substitute its own assessment of educational evidence for that of the statutory decision-maker.

A local education authority may lawfully decide not to amend a statement of special educational needs after an annual review where it has followed the prescribed procedure, considered the evidence and reached a decision within the range open to it. New test results do not automatically require amendment. The Administrative Court is not the specialist tribunal for determining the appropriate educational provision. An available statutory reassessment and appeal route may also justify refusing judicial review relief.

The claimant challenged Birmingham City Council’s decision of 8 January 2009 not to amend or alter her statement of special educational needs following its annual review. She argued that the authority had ignored updated educational psychology evidence, acted irrationally by refusing amendments to provision or placement, and acted unlawfully despite her limited progress in literacy.

During the proceedings, the claimant’s parents requested a reassessment, which the authority refused on 1 June 2009. That refusal was also taken into account. The issues were whether the January decision was irrational or otherwise unlawful, and whether an alternative statutory remedy or delay prevented relief.

1. The claim was dismissed. The authority’s decision not to amend the statement was one it was entitled to reach on the evidence, particularly in light of the Head Teacher’s report and the prescribed review process. There was no challenge to the report and no suggestion of procedural non-compliance.
2. The Administrative Court’s role on judicial review was supervisory. It was not to decide the educational merits or substitute its own view, but to determine whether the authority acted within lawful limits, followed a fair procedure, avoided an error of law and reached a decision open to it. The approach in Bradley v The Jockey Club [2004] EWHC 2164 QB, expressly approved on appeal in [2005] EWCA Civ 1056, was applied.
3. The court rejected the assumption that two years’ progress over four years necessarily demonstrated a deficiency in the statement. The significance of psychometric testing and the content of appropriate educational provision were matters within the expertise of the specialist education tribunal, not the Administrative Court.
4. The statutory scheme did not require a statement to be rewritten whenever new test results became available. The authority had to review the statement and consider appropriate amendments, but the Regulations and the Code did not impose an automatic duty to amend.
5. The court also considered that the statutory reassessment procedure under section 328 of the Education Act 1996, followed by an appeal, provided an alternative remedy. The existence of that remedy supplied an additional reason for refusing relief.