Essex County Council v Williams

For Part IV of the Education Act 1996, the extended meaning of “child” includes a person who has not attained 19 and is a registered pupil. The age condition is decisive. It cannot be displaced by continued attendance on a secondary-education course under section 2(5), or by a young person’s developmental age. Once a person is no longer a child for whom the local authority is responsible, paragraph 9(2) of Schedule 27 permits the statement of special educational needs to cease without a formal, appealable determination under paragraph 11. Statutory guidance may allow provision to continue to the end of an academic year, but it does not alter the statutory scheme.

MW, an adult with Down’s syndrome and severe learning difficulties, had a statement maintained by Essex County Council and remained at a specialist school after turning 19. The authority proposed to stop maintaining it. The First-tier Tribunal struck out her father’s appeal for lack of jurisdiction, but the Upper Tribunal held that the tribunal had jurisdiction and that the statement did not automatically lapse merely because MW had turned 19. It quashed the decision and remitted the case.

After remittal, the First-tier Tribunal dismissed the appeal, relying on R(B) v Islington, 2010 EWHC 2539 (Admin). The Court of Appeal considered whether Part IV of the Education Act 1996 permitted a statement to continue beyond 19 while a pupil completed a course of secondary education.

1. Appeal allowed. Baron J gave the leading judgment, with which Moses LJ and Maurice Kay LJ agreed.
2. Section 312(5) of the Education Act 1996 supplies extended criteria for the meaning of “child” for Part IV. The age requirement, namely that the person must not have attained 19, is exhaustive. The registered-pupil requirement is not itself exhaustive. A person aged 19 or over therefore cannot remain a “child” for Part IV merely because they remain at school, continue a course, or have a much lower functional age.
3. Section 2(5), which permits a person who began a course of secondary education before 18 to continue that course after attaining 19, concerns the classification of education. It does not override the distinct statutory code in Part IV or require a local authority to maintain a statement of special educational needs beyond the statutory age limit.
4. Hill v Bedfordshire, 2008 EWCA (Civ) 661, was materially different. Its reasoning that the registered-pupil criterion was not exhaustive applied in a case involving a person under 19 who could re-enrol at another school. It did not determine the position of a person who had passed the age limit. The reasoning in R(B) v Islington, 2010 EWHC 2539 (Admin), was approved and applied.
5. Paragraph 9(2) of Schedule 27 operates where the person has ceased to be a child for whom the authority is responsible. In that event the authority may cease to maintain the statement without making a positive decision under paragraph 11, and the cessation is not subject to an appeal to the First-tier Tribunal. Guidance allowing provision to continue to the end of an academic year is a humane discretion and does not alter the statutory construction.

• Court of Appeal (Civil Division): allowed the local authority’s appeal from the Upper Tribunal’s decision.
• Upper Tribunal, Administrative Appeals Chamber: allowed MW’s appeal from the First-tier Tribunal, held that the tribunal had jurisdiction, and remitted the case for determination on the merits.
• First-tier Tribunal: initially struck out the appeal for want of jurisdiction. After remittal, it held that the statement had lapsed and dismissed the appeal, also finding against MW on the factual merits in the alternative.