N, R (on the application of) v North Tyneside Borough Council

An LEA must arrange the special educational provision specified in a child’s statement under section 324(5) of the Education Act 1996. The duty is mandatory. It is not displaced because the authority considers that an identified form of provision is unsuitable or can be replaced by other support.

A statement must specify provision with sufficient certainty. It cannot leave the LEA free to vary that provision unilaterally, since a change must instead be made through the statutory machinery for revising the statement and preserving appeal rights.

The appellant was a child with special educational needs whose statement required speech and language therapy, including blocks of group therapy sessions. The local education authority did not provide those sessions for a period. It contended that the wording of the statement allowed it to withhold them where professionals considered them contrary to the child’s interests.

HHJ Mackie QC, sitting as a deputy High Court judge in the Administrative Court, dismissed the child’s judicial-review claim. On appeal, the authority accepted that the judge’s conclusion could not stand. The remaining issue concerned appropriate relief following a later amended statement and a dispute about the form of group therapy to be supplied.

1. Appeal allowed. The statement imposed a clear requirement for group therapy, and section 324(5) of the Education Act 1996 required the LEA to arrange that provision. The authority had therefore acted in breach of duty by failing to provide it.

2. The judge’s construction of the statement was legally erroneous. It permitted the LEA to decide unilaterally whether to deliver a specified provision whenever it considered a different course appropriate. That would undermine both the mandatory character of the duty and the statutory right to challenge changes to provision.

3. The court applied the established principles drawn from R v LB Harrow ex parte M, [1997] ELR 62, and E v Rotherham Metropolitan Borough Council, [2001] EWHC Admin 432. A statement must be amended through the appropriate statutory process if provision is to change; it cannot reserve to the LEA an unrestricted discretion to depart from it.

4. Per Sedley LJ, there is no “best endeavours” defence while a statement remains in force. In an exceptional intractable case, the court may have grounds to defer or qualify mandatory relief, but this was not such a case.

5. The parties agreed, and the court approved, an order requiring group therapy of the same kind as that supplied in 2007.

• Court of Appeal (Civil Division) — Allowed the child’s appeal and approved an agreed order requiring compliance with the statement: [2010] EWCA Civ 135.
• High Court (Administrative Court) — HHJ Mackie QC, sitting as a deputy High Court judge, dismissed the judicial-review claim.