M, R (on the application of) v East Sussex County Council

When a child is within 12 calendar months of transferring between phases of schooling, regulation 19 of the Education (Special Educational Needs)(England)(Consolidation) Regulations 2001 requires the local authority to amend the statement of special educational needs before the specified deadline. The obligation is triggered by the phase change, not by a change of institution. The amended statement must identify the type of school appropriate for the child and, where required, name the school. An authority cannot avoid that obligation by retaining the same named school, particularly where the existing statement fails to comply with section 324(4) of the Education Act 1996.

The claimant was the mother of a child with special educational needs who was the subject of a statement under Part IV of the Education Act 1996. The statement named a maintained special school, but did not specify the type of school. Following an earlier appeal concerning the placement, the child attended an independent special school and was approaching the transfer from primary to secondary education. The local authority refused to amend the statement because it proposed no change to the named school. The claimant sought judicial review, arguing that regulation 19 required an amendment and that amendment was necessary to enable a further statutory appeal.

1. Permission and outcome. Permission to apply for judicial review was granted. The claim succeeded.
2. Section 324(4) of the Education Act 1996 requires a statement of special educational needs to specify the type of school or other institution considered appropriate. Schedule 2 to the Education (Special Educational Needs)(England)(Consolidation) Regulations 2001 reflects that obligation by requiring Part 4 of the statement to specify the appropriate type of school and, where applicable, its name.
3. Regulation 19 applies where a child is within 12 calendar months of a transfer between phases of schooling. In this case the relevant transfer was from primary school to secondary school. The local authority therefore had to ensure that the statement was amended before 15 February in the relevant calendar year so that it named the school or institution the child would attend after the transfer.
4. The duty was triggered by the phase change, not by a change in the particular institution. The authority could not rely on the fact that the same school remained named, especially since the existing statement failed to identify the type of school required by section 324(4).
5. The refusal to amend the statement was unlawful. The refusal was quashed, and the authority was directed to produce and serve an amended statement within the period specified in the order. The costs were summarily assessed at £18,000 including VAT, payable within 14 days.

The judgment records that the claimant’s parents had appealed in 2006 to the Special Educational Needs and Disability Tribunal against the statement. That appeal succeeded in immaterial respects but failed on the identity of the school. Sales J subsequently ordered on 19 March 2009 that the permission application and substantive judicial-review claim be heard together if permission were granted. The Administrative Court granted permission and determined the substantive claim.