TW, R (on the application of) v Kent County Council

A local authority is not required to consider a statutory funding regime which the applicant did not invoke. Under the Scholarships and Other Benefits Regulations 1977, payment is discretionary and depends on statutory conditions, including financial hardship and suitability of the course. The applicant bears the evidential burden of establishing the need for assistance.

Judicial review is a remedy of last resort. Where statutory reassessment and merits appeal procedures provide a suitable alternative remedy concerning the school named in a statement of special educational needs, that remedy ordinarily answers an irrationality challenge. A council’s failure to enforce school attendance does not by itself establish acceptance that another school is suitable.

The claimant, a child with special educational needs, attended Summerhill School although Part 4 of his statement of special educational needs named West Heath. His parents sought to require Kent County Council to fund Summerhill fees for 2008–2009 and to amend the statement to name Summerhill.

The funding request referred to provisions of the Education Act 1996, not the Scholarships and Other Benefits Regulations 1977. The council refused to fund the placement and declined to amend the statement. Earlier SENDIST decisions had rejected Summerhill as suitable and supported West Heath. The issues were whether the funding claim was properly founded, whether the council’s decisions were irrational, and whether an alternative statutory remedy barred relief.

1. The claim was dismissed. The claimant’s solicitors had applied for assistance under sections 18, 348 and 517 of the Education Act 1996, not under the Scholarships and Other Benefits Regulations 1977. The council therefore had no obligation to consider the application under the 1977 Regulations. A later judicial review claim could not recast the application as one made under a different statutory regime.
2. Regulation 4 of the 1977 Regulations conferred a power, not a duty, to make a grant. Regulation 6 imposed conditions precedent. The parents had not, when the claim was commenced, supplied sufficient evidence that payment was needed to prevent or relieve financial hardship. The evidential burden rested on them. The council also had to be satisfied that the course was suitable for the pupil. The question was whether the council could reasonably be satisfied of suitability, not whether the court considered the course objectively suitable. That conclusion was not irrational in light of the statement, the SENDIST decisions and the council’s consistent position.
3. The challenge to the refusal to amend the statement was barred by a suitable alternative remedy. Section 328(2) of the Education Act 1996 provided a reassessment procedure, with a merits appeal to SENDIST. That procedure was wider than judicial review and remained available even if the claimant’s parents lacked knowledge of it.
4. The council’s failure to commence school attendance proceedings under sections 437–443, or to insist on attendance at West Heath under section 324(5), did not demonstrate acceptance that Summerhill was suitable. The council had explained its decision not to pursue enforcement while maintaining the statement, reserving a place at West Heath and paying substantial sums for it.
5. The examination-year circumstances did not make the decision irrational. Judicial review could not substitute the court’s factual judgment for that of the council or operate as an appeal against the unchallenged statement. The delay issue did not require final determination.