GA, R (on the application of) v Islington London Borough Council [2000] EWHC Admin 390 (8 September 2000)

Judgment As Approved by the Court Crown Copyright © MR JACK BEATSON Q. C. 1. The Applicant is a nine year old boy with special educational needs. He has severe learning difficulties with autistic features secondary to brain damage acquired through an immunodeficiency state. Since September 1997 he has been a weekly border at Doucecroft School near Colchester, an independent school run by the Essex Autistic Society. It takes approximately one and a half hours to drive the 75 miles from the parents home to the school. The present proceedings arise out of a decision of the Respondent local education authority dated 25 May 2000 refusing to finance the transport of the applicant to and from Doucecroft School. Transport has until now been provided by the applicant's mother or by a family friend. The Applicant's case is that the local education authority has unlawfully refused to meet the transport costs to and from school which sections 324(5)(a)(ii), 509, and 19 of the Education Act 1996 empower it to meet. Originally the claim was that the authority was under an obligation to meet all transport costs, but, in opening the case on behalf of the Applicant, Mr Bowen stated that what was being challenged was the decision not to provide the Applicant with any free transport and that what was sought was sufficient free transport. Suitable amendments were made to the form 96A. 2. Permission to apply for judicial review was granted on 27 July by Harrison J who ordered expedition and made an order under section 39 of the Children & Young Persons Act 1933 to preserve the applicant's anonymity. I will refer to him as G. A., and any report must suitably disguise his identity. 3. G. A's parents first had contact with the local education authority in 1995. In March 1996 the authority informed them that it was proposing to carry out a statutory assessment of G. A.'s special educational needs and, after making the assessment, that they would make a statement of his needs. There were discussions between Mr Gurney, the authority's Principal Special Education Officer, and the parents about a draft statement and possible school placements. The parents requested that G. A. be placed at Radlett Lodge School. The authority responded that a placement there would not be an efficient use of its resources because of the cost of transport and because it considered that G. A.'s needs could adequately be met at either a local school, Harborough School, or at Whitefield School Waltham Forest. In a letter dated 20 August 1996 G. A.'s parents stated that, in order to proceed with the application to Radlett Lodge, they were prepared to seek their own transport solutions but reserved the right to make further applications regarding transport funding. Mr Gurney responded on 21 August stating that the authority would agree to a placement at Radlett Lodge on the basis that it paid the fees and the parents provided the transport, and that it would be necessary for them to provide transport throughout the period their son was at the school. 4. In the event neither Radlett Lodge nor Whitefield School were able to offer a place to G. A.. There were further discussions with the parents, first about Church Hill School in Norfolk and then, in May 1997, about Doucecroft School where a place was available. In telephone conversations on 17 July 1997 between Mr Gurney and G. A.'s father, Mr Gurney stated that the authority could not agree to his request that it would provide transport for G. A. to Doucecroft and that it had approached Radlett Lodge and Doucecroft on the agreed basis that the parents would provide the transport. In response to a question from the father Mr Gurney stated that the matter of transport was not likely to be negotiable in the future. I should add that Mr Gurney explained that he had explored the cost of transport and it was estimated at £95 per trip including an escort. 5. The statement of special educational needs was made on 12 August 1997 naming Doucecroft School but stating in Part VI (Non-Educational Provision) that transport to and from school will be provided by G. A.'s parents at their own expense. G. A.'s parents have on several occasions asked the local authority to reconsider its decision on transport. Their case is based on changes of circumstances since the statement was made, notably deterioration in his health necessitating more journeys to and from the school than the two a week envisaged, and deterioration in his mother's health. She now suffers from stress and depression, and the evidence before me includes a letter dated 15 August 2000 from a psychiatrist who is treating her. Its date makes it irrelevant in assessing whether the authority made a lawful decision on 25 May but I note it states that the making of the journeys to and from school is highly prejudicial to her mental health. 6. Before turning to the circumstances of this case and the authority's decision, I shall summarise the relevant statutory provisions. Once a statement has been made, section 324(5)(a) of the Education Act 1996 provides that: "unless the child's parent has made suitable arrangements, the [local education] authority (i) shall arrange that the special educational provision specified in the statement is made for the child, and (ii) may arrange that any non-educational provision specified in the statement is made for him in such manner as they consider appropriate ..." (emphasis added). It is clear that non-educational provision under this sub-section includes transport ( R v Havering LBC, ex p K [1998] ELR 402, 404G per Sedley J.). 7. A local education authority is also empowered to make arrangements for the provision of transport "as they consider necessary" for the purpose of facilitating the attendance of pupils at schools by section 509(1) of the 1996 Act, and, in the case of a child who, by reason of inter alia illness, may not for any period receive suitable education unless such arrangements are made, by section 19. By section 509(2) any transport provided pursuant to arrangements made under section 509(1) must be provided free of charge. Where the circumstances are such that a parent has a defence to proceedings brought under section 444 of the 1996 Act for failing to secure the regular attendance of the child at school, it has been held that the local authority is bound to provide free transport under section 509: see Surrey CC v Ministry of Education [1953] 1 WLR 516 and Devon CC v George [1989] 1 AC 573, decisions concerning the statutory predecessors in the Education Act 1944 of sections 509 and 444. By section 444(7) a child at a boarding school shall not be taken to have failed to attend regularly at the school if he was "prevented from being present by reason of sickness or any unavoidable cause". Mr Kerr, on behalf of the authority, submitted that this provision, unlike section 444(4), relating to day schools, does not afford a defence but defines the scope of the offence, and that Sedley J's reference to section 444(7) in R v Havering LBC, ex p K [1998] ELR 402, 405 stating it was a defence should be treated with caution because it was made in the course of an unreserved judgment. In the context of whether the local authority is bound to provide free transport, I do not, however, consider there is a significant difference between the impact of subsections (4) and (7) of section 444 on section 509. 8. In November 1997 G. A.'s mother asked the local education authority whether, in view of G. A.'s medical condition and the strain on her, it could provide transport even if only for the short term. Mr Gurney replied stating that the authority would not agree to provide transport because the basis upon which it agreed to G. A.'s placement at Doucecroft was that the parents would provide transport at their own expense. In January 1998 G. A. became very ill. This was later diagnosed as immunoglobulin deficiency with brain damage related to that illness. 9. In June 1999, following G. A.'s annual review, his father wrote asking the local education authority to reconsider its stance on transport. The authority responded on 17 June in similar terms to its response to the earlier request; the basis upon which it had agreed to G. A.'s placement at Doucecroft was that the parents would provide transport at their own expense. In September 1999 G. A.'s mother asked the local education authority to reconsider the question of transport in view of G. A.'s immunodeficiency state (which his father's request had not mentioned) and because a new treatment G. A. had started to receive in July involved extra journeys to and from the school. The treatment involves an overnight stay in hospital every three weeks in order to receive intravenous infusions of immunoglobulins. She stated that the increased number of journeys, which she had to provide because it was the only way of doing it that they could afford, meant that as well as being very wearing, on occasion it was dangerous for her to drive. On 14 October the authority responded stating that its position continued to be that it was able to make local provision for G. A. and had agreed to fund alternative educational provision for him at Doucecroft in the knowledge that transport would be the parents' responsibility. 10. After this solicitors became involved and, following an exchange of letters between the parents' solicitors and the authority, on 16 March this year the solicitors wrote their letter before action asking the authority to reconsider its decision and setting out the reasons for their view that the authority was under a legal obligation to finance G. A.'s transport. They relied on sections 509(1) and 19 of the Education Act 1996, the number of days of school G. A. had missed due to illness or hospital appointments, the fact that his health remained unusually vulnerable, and the occasions on which G. A. could not be taken back to the school after a mid-week appointment because of the stress on his mother. On 29 March the education authority agreed to give the matter "a completely fresh consideration" and invited further submissions by 14 April. On 31 March the parents' solicitors stated that they did not propose to make any further submissions. 11. In its decision letter dated 25 May the education authority states: "the placement at Doucecroft School was agreedand a statement completed on the basis that the parents took responsibility for transport arrangements. Islington have always maintained that G's special educational needs could be met at Harborough School, and there is presently a place available for him at the school. Mr. Norman-Bruce finds that there appear to have been to changes in the position since the beginning of G's placement: (1) Mrs A appears to have found the travelling more difficult due to health grounds; (2) G's health appears to have deteriorated. However, Mr. Norman-Bruce determines that neither of these factors would appear to change the position taken when making the initial decision. In fact, these changes would appear to support the view the G would be better placed at a school nearer home. He concludes that the decision not to provide assistance with transport was correct. We do not agree that Islington has a legal obligation to finance the transport to and from Doucecroft School as is claimed on behalf of your client, and we disagree with your interpreetation of the legal position as set out in your letter dated 16 th March 2000. The position therefore is that your clients continue to be responsible for the travel provision for G's attendance at Doucecroft Schoool. However, if they wish G to transfer to Harborough school whee there is a place available and provision for G;s special educational needs can be made, would the please contact the Principal Special Education Officer, mr. Peter Gurney." 12. This case has marked similarities to the decision of Sedley J in R v Havering LBC, ex p K [1998] ELR 402. In that case the statement (albeit in Part IV), also stated that the child's mother was to be responsible for providing transport at her own expense, and she was subsequently unable to maintain transport provision due to her personal circumstances and unsuccessfully sought local authority assistance. In the present case the local authority maintains that it would never have agreed to the naming of Doucecroft except on the basis that the parents would meet the transport costs since it considered there is a suitable local school. The evidence before me bears this out. Mr Kerr, on behalf of the authority, submitted the parents in these circumstances cannot accept the school but not the condition upon which it was named. This, as Sedley J recognised in R v Havering LBC, ex p K (at p. 408), is a cogent argument, although his Lordship concluded (at p 409), although with some hesitation, that since the choice of school in that case by the Special Educational Needs Tribunal was neither predicated nor dependent nor conditional upon the mother providing transport, the loss of transport did not undo the statement. His Lordship considered that the authority could consider whether, notwithstanding what is on the face of the statement, it should be providing transport for the child and, having found the authority had made an error of law, he remitted the matter to it. 13. In Mr Kerr's skeleton argument and in his submissions, G. A.'s parents are also criticised for not appealing against the content of the statement and not seeking the deletion of the words "at their own expense" from Part VI although they were made aware of that right. This was a bad point and was not pressed. The right of appeal given by section 326(1) is one against an authority's assessment of the child's special educational needs and the special education provision specified in the statement, including the school named, not against the non-educational provision, and the letter from the authority enclosing a copy of the statement in its final form refers only to rights of appeal against the matters in Sections II and III and the placement in Part IV. 14. On behalf of the parents, Mr Bowen submits that section 324(5)(a)(i) imposes a duty on the authority to make arrangements for the educational provision specified in the statement, namely attendance at Doucecroft School, and that the changes of circumstances both empower the authority to make arrangements for transport and impose a duty on it to do so. If it considers that a placement at Doucecroft which involves transport costs is not be an efficient use of its resources it should amend the statement of G. A.'s special educational needs. 15. I turn to the submissions made under the different statutory provisions. Education Act 1996, section 324(5)(a)(ii) 16. Section 324(5)(a)(ii) of the 1996 Act formed the primary basis of the challenge to the authority's decision. There are two stages in its operation. The first is whether the authority has power under the section to arrange transport; the second where the authority is empowered to do so, is whether its decision to decline to do so is reviewable. 17. Section 324(5)(a)(ii) empowers an authority to arrange that any non-educational provision (which includes transport) specified in the statement is made for him in such manner as they consider appropriate "unless the child's parent has made suitable arrangements". It is common ground that the court is not the arbiter of what constitute suitable arrangements and the decision as to suitability of the arrangements made by the parents is for the authority alone, subject to review on well established principles of administrative law: R v East Sussex CC, ex parte T [1997] ELR 311, 321; White v Ealing LBC and the Special Education Needs Tribunal [1998] ELR 203, 224. In the absence of a valid determination that such suitable arrangements have been made the authority has power to arrange transport. 18. On behalf of G. A., Mr Bowen submits that the authority failed to address itself to the relevant legal question whether the parents "are making" suitable arrangements for G. A.'s transport to and from school. The parent's agreement, recorded in the statement in 1997, is said to do no more than entitle the authority to conclude that at that time they had made suitable arrangements. At that time it was envisaged that his mother would transport him to the school on a Monday and from the school on a Friday, and the authority did not satisfy itself that the parents would be able to make suitable arrangements for his transportation more than twice a week or to pay for regular transportation if his mother was unable to transport him herself. Mr Bowen submits that their conclusion that the parents continue to make suitable arrangements for G. A.'s transport is irrational or Wednesbury unreasonable because (a) it does not take account of the increased number of journeys, (b) the authority has made no assessment of the parents ability to pay for transport, (c) it does not take account of the fact that the effect of the difficulties is that the parents have been unable to secure his regular attendance at school. 19. Mr Kerr submitted that the conclusion that the parents have made suitable arrangements is rational because it is founded on the agreement reached on the telephone with G. A.'s father on 17 July 1997. Mr Kerr's submission goes too far. It would mean that however catastrophic the changes of circumstances an authority's decision that the parents have made suitable arrangements would not be open to challenge where those arrangements were originally made by agreement with the parents. With regard to factor (c), which depends on whether section 444(7) would apply in any prosecution of the parents in respect of the failure of the child to attend regularly at his school, Mr Kerr submitted that if G. A. fails to attend Doucecroft regularly, the parents would not have a defence insofar as the failure to attend arises from the failure of the parents to provide or arrange transport.. 20. By virtue of section 444(7) no offence is committed in respect of a child who is a boarder at a school, because of sickness or any unavoidable cause. By section 579(1) "boarder" includes a pupil, such as G. A., who boards during the week but not at weekends. While any failure by G. A. to attend because of sickness, whether when attending hospital for his regular treatment or otherwise, clearly falls within section 444(7), the position of any failure to attend because of a lack of transport is not straightforward. This is because, although "unavoidable cause" can include lack of transport, see R v Havering LBC, ex parte K [1998] ELR 402, 410, where Sedley J gave as examples situations in which the means of transport ceased to exist or the passage of the vehicle is blocked by a natural disaster, the "cause" must relate to the child and not the parent: Jenkins v Howells [1949] 2 KB 218 and R v Havering LBC, ex parte K . It was submitted by Mr Bowen that where, as in this case, the reason for the mother's inability to drive the child to school is stress, depression and tiredness caused by the health of the child and the need to take him to and from hospital, the cause "relates" to the child. He sought to distinguish ex parte K where Sedley J said (p 411) that the cause relied on in that case (changes in the mother's personal circumstances including difficulty in making her business viable and taking on modest commercial premises) "is entirely a cause affecting the mother and her ability to provide transport. It is only secondarily a cause affecting the child." Mr Bowen, submitted that it would be extraordinary to impose a criminal sanction on a person who, because of stress, depression and tiredness caused by the child's illness, could not get her child to school. While this would undoubtedly constitute strong mitigation, I accept Mr Kerr's submission that this does not suffice to preclude the commission of the statutory offence. The immediate cause of the child's absence relates to the mother, who could, as G. A.'s mother did on occasion, arrange for somebody else to transport him. 21. The authority relied on the agreement in 1997 in its letters dated 14 November 1997, 17 June 1999, 8 December 1999, and 20 January 2000. The letter dated 14 October 1999 states that the authority has reconsidered the request "...in the light of new developments ... concerning [G. A.'s] health". The decision letter of 25 May 2000 states that there are two changes of circumstances; the deterioration in G. A.'s health and the fact that his mother " ... appears to have found the travelling more difficult due to health grounds". Although these letters do consider some of the changes of circumstances, they do not take account of the increased number of journeys or the parents' ability to pay for transport. With regard to finance, Mr Kerr submitted that finance was not put in issue in the letter before action and that the invitation to make further submissions was not taken up. I note, however, that the mother stated in her letter of September 1999 that the only way the parents could afford to provide the transport was by her doing the driving, a matter not challenged or tested by the authority The statement in the decision letter that the changes support the view that G. A. would be better placed at a school nearer home may be a reference to the fact that the difficulties have meant the parents have been unable to secure his regular attendance at school, but this is not clear. 22. I have concluded that it was irrational or Wednesbury unreasonable to conclude that the arrangements made in 1997 remained "suitable" despite the changes of circumstances and factors (a) and (b) above. 23. The next question is whether the authority's decision not to exercise the power is reviewable. Mr Kerr contended that the mother's difficulties, while rendering the parents' obligation more onerous, do not negate it. He also submitted that since the local authority had made it clear from the outset that the placement was dependent on the parents being responsible for providing and paying for transport, it cannot be an improper exercise of the authority's discretion under section 324 for it to decline to pay for transport. This argument was put in a number of ways. As well as in the context of section 324(5)(a) it was put more broadly, as a question of contract or estoppel, by which the parents were precluded by their agreement from relying on any illegality or irrationality. Alternatively, Mr Kerr submitted that they were shut out by the principle of ex turpi causa since the parents were seeking to rely on their own failure to take G. A. to school in breach of their obligation under section 444 as a reason for the authority to reconsider the question of transport. It was said that ex parte K is distinguishable from the present case because Sedley J there found that the placement was not transport dependent. Mr Kerr's argument is cogent but I do not consider that the authority can lawfully fetter its statutory discretion for all time by relying on the agreements the parents made in 1997. Once there has been a relevant change of circumstances, the authority must reconsider the matter in the light of the circumstances applying at that time. In the circumstances of this case I do not consider the ex turpi causa maxim bars the applicant. Any wrongdoing would be by the parents, not G. A., and, for the reasons given in the context of my consideration of section 444(7), the nature and gravity of such wrongdoing, which (see R v Wandsworth LBC, ex p O The Times 18 July 2000) determine whether it applies, are not sufficient to demand the exclusion of relief. 24. Mr Bowen submitted that factors (a) to (c) in paragraph [18] above mean that in declining to exercise the power they are in breach of their duty under section 324(5)(a)(i) to make arrangements for the educational provision specified in the statement, namely attendance at Doucecroft School. He also submitted that, in taking account of their belief that G. A.'s needs could be met at a local school not named in the statement, the authority took into account an irrelevant consideration and applied the wrong legal test. Thirdly, he submitted that reliance on Harborough, the local school, was irrational or Wednesbury unreasonable given its inappropriateness for G. A. because it was a day school without the facilities the evidence before me indicated he needs. 25. The second and the third of these submissions are not unrelated. With regard to the third, clearly the parents have never considered that Harborough School would be an appropriate placement.. But this is not a matter for this court. In any event, while the evidence provides some support for the parents' view, it goes nowhere what would be necessary for a conclusion that the authority's view that the school is appropriate is irrational. This is a matter that should be determined in the normal way by the procedure set out in paragraphs 9-10 of Schedule 27 to the 1996 Act, i.e. notice of the proposal to the parents who have a right to make representations and, where the authority and the parents cannot agree, a right of appeal to the specialist tribunal set up by statute for this purpose. 26. Mr Bowen's second submission is based on R v Havering LBC, ex p K [1998] ELR 402. Sedley J, who was primarily concerned with section 509 of the 1996 Act, held that the authority had no right to conclude that the child should be at a school not named in the statement. His Lordship stated (at p. 408) that "if it were open to a local education authority ... simply to review the statement, particularly when it is a statement that has been amended by the specialist tribunal set up by statute for this purpose there would be little point in having the statement. It would be possible, by sidewinds, for any statement to find itself being informally reviewed and in effect amended by a body which had no power to do either of those things." The statement there had been amended after an appeal to the Special Education Needs Tribunal but that is not in my view a material distinction. Whether or not a case has been to the tribunal one effect of allowing informal changes would be to deprive parents of their right to appeal under Schedule 27 of the Act against an authority's assessment of the child's special educational needs and the special education provision specified in the statement, including the school named. 27. There was in fact a way in which the authority could have sought to protect its position. There is no reason why more than one school should not be specified in a statement if, in the view of the education authority, more than one school would equally answer the child's needs. This was done in Re C [1994] ELR 272, where the second school named was the one the child's parents preferred, which the authority agreed to include on the basis that the parents were to be responsible for all travelling expenses and arrangements. It was not done in the present case. Had Harborough been named as the authority's preferred school and Doucecroft named as the school G. A.'s parents preferred which the authority only agreed to include on the basis that the parents were to be responsible for travelling expenses, the authority could satisfy its duty under section 324(5(a)(i) by making arrangements for attendance at either school. But the parents would, had that been done, had a right of appeal against the naming of Harborough School, whereas, as noted, they had no right of appeal against the requirement that they bear the cost of transport. While that was not done, Mr Bowen noted that it is open to the authority to seek to achieve this result by proposing an amendment to the statement. He submitted that what the authority is doing by not seeking an amendment to the statement and refusing to reconsider the matter, perhaps pending such an amendment, is to leave the parents in a "Catch-22" situation. They either continue with the present placement but G. A. would not get a suitable education because of his absences, and his mother's condition would worsen. Alternatively, they accept the authority's proposal of Harborough School which they consider unsuitable but do so in circumstances in which they are deprived of an appeal to the tribunal. 28. I have concluded that in this respect there is no material difference between section 509 and section 324(5)(a)(ii), and the authority, in taking account of its belief that G. A.'s needs could be met at a local school not named in the statement, took into account an irrelevant consideration and applied the wrong legal test. 29. I turn to the submission that factors (a) to (c) in paragraph [18 ] above mean that in declining to exercise the power to provide transport the authority is in breach of its duty under section 324(5)(a)(i) to make arrangements for the educational provision specified in the statement, namely attendance at Doucecroft School. Factor (c) depends on whether section 444(7) would apply in any prosecution against the parents, and I have concluded that, to the extent that the absences were caused by the mother's stress, depression and tiredness it would not. It would, however, apply where the absences were due to G. A.'s sickness, whether because he had to attend hospital for his regular treatment or otherwise. With regard to the two other factors, even though I have concluded that they mean it is irrational to conclude that the arrangements made in 1997 remain suitable, it is not the case that if the local authority gives proper consideration to these factors it is bound to decide to provide transport. Accordingly, the matter must go back to the authority which must reconsider its decision giving proper consideration to all the changes of circumstances and not taking into account of its belief that G. A.'s needs could be met at a local school not named in the statement. Education Act 1996, sections 509 and 19 30. I can deal with these provisions more briefly. For the reasons given above I consider that the authority is only under a duty to provide transport under section 509(1) where G. A.'s absences are due to his sickness, whether on the occasions he attends hospital for his regular treatment or otherwise. leave it out of account at this stage. But the factors vitiating the authority's exercise of its discretion under section 324(5(a)(ii) also vitiate the exercise of its discretion under section 509(1). There remains the possibility of the authority, exercising its discretion in accordance with the law, of considering it necessary to provide transport under section 509, whether entirely, or as the case was put on behalf of G. A., to the extent that his parents are not making "suitable arrangements" for his regular attendance at Doucecroft School. The authority should therefore reconsider its decision under this section. 31. Section 19 provides that each local education authority "shall make arrangements for the provision of suitable full-time or part-time education at school or otherwise than at school for those children of compulsory school age who by reason of illness, exclusion from school or otherwise may not for any period receive suitable education unless such arrangements are made. It was not contested that "arrangements" under section 19 are not limited to purely educational provision and include transport. Nor was it contested that in considering decisions as to what is suitable education for the child, the Court exercises its normal supervisory jurisdiction. 32. Mr Kerr submitted that the authority's decision letter responded to the submissions concerning the different sections, including section19, mentioned in the letter before action in a composite way indicating that it disclaimed any responsibility on its part to act under section 19. There is, however, an important distinction between section 19 and the other provisions. It is established (see R v East SussexCC, ex p T [1998] ELR 251 ) that in the exercise of discretion as to what was "suitable education" under section 19 a local authority cannot take into account the resources of the authority. Resources are, however, relevant to the exercise of discretion under sections 509 and 324(5)(a)(ii). It is therefore important to address the power under section 19 specifically. The composite way in which the decision letter was phrased makes it impossible to conclude that the authority has so addressed it. The authority should therefore also reconsider its decision under section 19. 33. I am, as Sedley J was in ex parte K , aware of the battle lines that have been drawn around a child who needs an education. On the one hand there are the views on the part of the officers of the authority that the authority made it clear from the outset that G. A.'s placement at Doucecroft was dependent on the parents being responsible for providing and paying for transport, and the parents had agreed to this. The authority had determined that a placement at Doucecroft involving transport costs would not be an efficient use of its resources and if the local authority now is to meet these costs it would be at the expense of others with special needs in the borough. Moreover, in view of the deterioration in his health they consider G. A. would be better placed at a school nearer home. On the other side there are the parents, who wish to preserve the placement at Doucecroft despite the undoubted logistical difficulties. One consequence of these judicial review proceedings is that there will be before the authority a fuller explanation of the reasons why the mother cannot cope with the increased number of journeys so that it can come to a more fully informed conclusion than the one that it was able to make previously. I hope that, since the new term has started, it will be possible for the authority to consider the matter urgently. 34. As far as relief is concerned, the applicant is entitled to certiorari to quash the decision made on 25 May. I shall hear counsel as to whether any further relief is called for, but if it is it must be upon the basis of findings that I have expressed. - - - - - - - - - - MR BEATSON QC: May I ask, did you receive a copy of the draft judgment? MR BOWEN: Yes. MR BEATSON QC: Although I did not give you 48 hours notice, are you happy to treat this as being handed down? MR KERR: Yes, my Lord, I have actually only spotted one typing error. MR BEATSON QC: I would be very grateful if you could let me have it. You did not receive it because I had technological difficulties on Wednesday, which were overcome. MR KERR: My Lord, it was paragraph 25, the penultimate line on the page, I think the word "near" may have been omitted from the end of the line. Paragraph 25, the penultimate line of the page. MR BEATSON QC: "It goes nowhere near". MR KERR: I think that is what your Lordship meant. My solicitor has drawn my attention to one other, which is on page 2, the last sentence of paragraph 1, it should be "Form 86A". MR BEATSON QC: Yes, I am very grateful. For the reasons given in the judgment handed down, I rule that the Applicant is entitled to certiorari to quash the Council's decision made on 25th May and it has to go back to the Council. MR BOWEN: I am obliged. Your Lordship indicated that it might be appropriate to consider further relief today. I have drafted a minute which I will hand up to you (same handed). MR KERR: I have seen it. I have a slightly different proposal which is much the same. MR BEATSON QC: Let me hear Mr Bowen. MR BOWEN: The first order reflects the amendment that I suggested you made to the Form 86A in relation to the relief sought. I have inserted, "between the Applicant"---- MR BEATSON QC: That is "any". MR BOWEN: So, clearly, that reflects your Lordship's judgment already. "(2) There be a declaration that the Respondent is obliged to provide the Applicant with free transport to and from his school sufficient to ensure that the Applicant receives a suitable education." That also follows from your Lordship's judgment. Mandamus ---- MR BEATSON QC: Save, of course, that the authority is going to have to decide again what it considers "suitable education". MR BOWEN: "(3) Mandamus to issue requiring the Respondent to reconsider it decision in accordance with the judgment of the Court within 7 days of the date hereof." Bearing in mind the urgency with which this matter has been heard during vacation, I think the local authority should also move with speed to ensure this can be sorted out as soon a possible. Number (4) was a proposal which I had hoped that instead of No (3) -- if I can agree with my learned friend that he is not in a position to agree (4), that will have to come out. In No (5), it will reflect the fact that the Applicant has been successful in this matter. "The respondent to pay the Applicant's reasonable costs and disbursements occasioned by this application and, if not agreed: (a) the Respondent to pay 75% of the said costs or a sum that the Respondent considers reasonable, whatever is greater, within 28 days of receipt of the Applicant's bill of costs; and (b) there be detailed assessment in relation to the remainder." That is not, I have to say, a usual costs order. I have found myself in situations where I have been arguing with local authorities over a year afterwards where nothing has been paid because the whole bill is in issue, and I think it only appropriate that at least a proportion of those costs should be paid, bearing in mind that the Applicant is legally aid and that the firm will not be paid -- they are a legal aid firm -- and they should be entitled to have some payment sooner rather than later, so I would ask that your Lordship make the order in those terms. MR BEATSON QC: Yes, Mr Kerr. MR KERR: My Lord, I would invite your Lordship to take the course that is often taken where one is dealing with a responsible local authority, who has unsuccessfully defended a judicial review, which is to grant a declaration rather than certiorari to accept a formal undertaking to the Court, which I am in a position to give, in lieu of mandamus . Certiorari and mandamus are not necessary when there is a clear declaration of invalidity of the decision, which I accept there must be, and a clear undertaking to reconsider the matter urgently. Can I just address myself to how that fits into the draft that my learned friend has handed up? In relation to his order No (1), I would propose that instead of certiorari that "a declaration be made that the decision" etcetera, and then add the words "was invalid" at the end of the sentence, so it is exactly to the same effect, but it is declaratory relief instead of quashing. In relation to point No (2), we do not accept that it follows from your Lordship's judgment, for the reasoning already put, and the difficulty in the last few words of the sentence, but in relation to No (3) I am in a position to offer a formal and clear undertaking that the Respondent will reconsider, I think one can usefully say, the decision referred to at paragraph (1) above. Then we would submit, in the usual form, "in accordance with law", which means, as your Lordship knows, in accordance with your Lordships's judgment. We are prepared to say that that will be done urgently, irrespective of any question of appeal, which I will come to later, but seven days is very short, given that my clients are not here. I received telephone instructions yesterday in relation to what I am putting to your Lordship now but, as to the seven days, I simply do not know whether people will be back from holiday. MR BEATSON QC: I noticed at the hearing, that in fact at one time it was contemplated that more evidence was going to be put in by someone who was coming back after the end of August. I had assumed, as you took no point on that, that that point had gone away, but it is similar. MR KERR: The person was the decision-maker himself, Mr Norman Bruce, who took the view that the letter was sufficient. I do not know whether he is back. It is not necessarily the case that he would be the only decision-maker, he may well be back by now and it may be that seven days would be no problem. I am certainly in a position to say that this will be considered urgently. MR BEATSON QC: You resist seven days on the grounds that you do not know whether that is possible. MR KERR: We do not want to be put in a position of having to come back for an extension, that would not be sensible. So far as No (4) is concerned, it may well be that that is the sort of formula that is thrashed out, but it is not something that I have been able to get instructions on. MR BEATSON QC: Yes. MR KERR: So far as No (5) "costs" is concerned, my Lord, I invite your Lordship, as I have already flagged this up at the substantive hearing, that in the event a result of this kind should be the outcome of the case, and I would have some submissions to make on costs. What I am inviting your Lordship to do, in the circumstances of this case, is to make no order as to costs, apart from Legal Aid Taxation. I put that forward on this basis -- which I had already flagged up at the main hearing -- that in the letter of 16th March (which was the formal letter before action). We need not go back to the bundles, but for your Lordship's note it is pages 43 to 45 of the long bundle. The request that was made was for the LEA to decide that it would finance free transport. There was no mention in the letter of partial funding, it was simply put on the basis of section 509(1) and the use of the word "free" in that section. That was, as your Lordship will recall, followed up by an invitation to make further submissions on factor or law and, on 31st March - for your note, page 126 of the bundle - the response was: "We do not propose to make any further submissions in fact and law." The reason given for that was: "Our letter dated 16th March outlines fully our view of the legal position." Of course, that was then found not to be the case. We discovered that that letter was not the full legal position on my friend's case, a couple of days before the hearing, when we received paragraph 11 of the skeleton argument which did not deal with part funding the first time. MR BEATSON QC: Were you there, was the authority there at the leave stage? MR KERR: Yes, my Lord. MR BEATSON QC: This change was not canvassed? MR KERR: No, my Lord. As you may recall, the relief sought in the Form 86A, paragraph 1, we still have. At page 2 of the bundle was a very much starker form of mandamus than that which my friend now puts forward in his draft order. It is quite simply mandamus requiring the respondent to provide the applicant with free transport to and from school. That it what we came to resist. The further submissions of fact and law that could have been made but were not ought, in my submission, to have included the reconsideration point which is now the outcome of the case. It would be too bold for me to say, in those circumstances, that I should have some costs up to a certain date or whatever, because that would not help anyway with my assisted opponent. My Lord, in my submission, in the light of that background, it would not do justice to my clients to order them to pay the whole of the costs of the other side in the normal way. My Lord, the only other point that I add, by way of footnote to that, is that in view of the agreement that was reached in 1997, albeit that your Lordship distinguished between the position of the parents giving agreement and the child, your Lordship may feel, that in the circumstances, the parents, at any rate, have had enough generosity from Islington's public funds, and that is what I say on the subject of costs. My Lord, the only other point I have to deal with is permission to appeal. Your Lordship may want to hear Mr Bowen. MR BEATSON QC: I will hear Mr Bowen on costs. MR BOWEN: My Lord, it is a bold submission that the respondent makes in relation to costs, dealing with the reasons why his authority should not pay costs. The way it is put is, that we have always asked from the beginning for all our costs to be paid. Two points have been made about that: the first is that it is very clear from what Mrs A said in her statement (which you will find at page 54 of the bundle at paragraph 19): "Basically I want the LEA to transport G from the home to school and vice versa each week. All I am asking for is two journeys a week. I accept there may be weeks where a third journey is needed because of a hospital appointment, and I would not mind having to deal with this. I am worried that if we pursue the transport issue, the LEA will withdraw G's placement..." I cannot find it now, but the offer has been made in the past that Mr and Mrs A would make available their own car. All they ask is for the LEA to provide a driver and, if necessary, an escort. MR BEATSON QC: It may not have been a very practical offer, given insurance and other problems. MR BOWEN: The point is, we have been open to offers of settlement in this case from the outset. It has always been open to the LEA to come back to us and say, `look, we are not going to pay all your costs, but how about we reach some agreement, so we can take the strain of you, Mrs A, and still ensure between us, consistent with both our duties, that G is receiving suitable education.' They have not done that. They have never ever made an offer. The second point to be made is that, notwithstanding my learned friend's protestations at the full hearing that this is something that had been sprung on them, of course, he went on to fight the case. If the point that we said was, `well, we would like to amend it to insert the word "any" in relation to the decision challenged and the relief sought', my learned friend could say, `if you had said that at the outset then, of course, we would have agreed this, and we would have had no need to come here', then I think he might at least have half a leg to stand on. As it is they have from the outset made their position very clear, they resist not only paying all costs, but they resist and have resisted paying any of the costs of transportation. That is the case that they have put and that is the case upon which they have lost. A costs order should follow in the usual way. MR BEATSON QC: Do you have anything to say to me about his submissions about the form of relief? Is it convenient to do that before we get to permission for appeal? MR BOWEN: I can deal with it now, or I can deal with it in relation to the submissions on permission to appeal. MR BEATSON QC: You might as well deal with it now, as I have heard Mr Kerr. MR BOWEN: In relation to his suggestion that there be only a declaration, I take the point, of course, that certiorari is a discretionary remedy, but my learned friend has given no reason why your Lordship should refuse to grant certiorari in a case where it has been plainly found that on every single point that was argued, the local authority were wrong. His only reason is that they are a responsible authority. They have given no evidence to support that, other than to say, well, they are a local authority. If his submission was right then certiorari would never be issued against any local authority or education authority. Simply to stand up and say, we are a responsible authority having lost, in my submission, is not a reason---- MR BEATSON QC: Are you saying they are not responsible and they need certiorari ? MR BOWEN: The relief sought follows, as night follows day, from your Lordship's judgment. Indeed, you stated in your judgment that certiorari would be granted and that is in the body of your order already. Of course, it is open to your Lordship to reverse that now, but I merely point out that the only reason that my learned friend gives for refusing, is the fact that they are a local education authority. If that is a reason then, of course, certiorari would never be issued, however wrong a decision of a local authority. The comfort that it gives to my clients is that they have not only your Lordship's judgment, but an order. Of course, in the absence of an order, your judgment is the law, but they do not have an order which states very plainly what it is they have been arguing about for many months. I would ask that your Lordship grant certiorari in the same terms that I have set out. MR BEATSON QC: I must say, I am not minded to make the declaration that you have set out in No (2) because, as was common ground at the hearing, ultimately it is going to be a matter for the local authority to determine lawfully what suitable education the Applicant requires and, in that sense, it is not clear to me what that would add to either certiorari or mandamus , or an undertaking in the form Mr Kerr has proposed. MR BOWEN: It follows from the thrust of your Lordship's judgment that if G is not receiving suitable education, and I have in mind, in particular, section 19, that the local authority's duty is triggered to provide such transport arrangements as are necessary to supplement the transport arrangements that G is already receiving, so as to ensure that he thereby receives suitable education. The comfort that that order will give and the effect it will have, is to ensure that the local authority cannot turn around and say, we are not going to provide you with any transport at all. They had to focus -- and it is clear from your Lordship's judgment, in any event -- their mind on this question. It is just an additional comfort that G's parents will have, knowing that when the local authority go back and reconsideration this decision -- and it has to be borne in mind that they have reconsidered the decision, perhaps ten or 12 times already and got it wrong on every occasion, that would be suitable---- MR BEATSON QC: I only saw three or four in the papers. MR BOWEN: I would say three or four. MR BEATSON QC: I think I understand your point. What about mandamus as opposed to the undertaking, and urgently as opposed to seven days. Seven days is a short time. MR BOWEN: It is. The case was heard very quickly for precisely the reason which was explained on the last occasion, term is beginning---- MR BEATSON QC: Has term begun? MR BOWEN: It starts this Monday. As for whether it would be mandamus or an undertaking, I have very little to say on that. What I would ask for is that there be liberty to apply in any event as there is nothing to stop us coming back. It would be appropriate in this case, bearing in mind that the proceedings may have to be reactivated in due course. MR BEATSON QC: I am grateful. I think I will deal with the orders before permission. I am going to make the order of certiorari in the form of No (1) in Mr Bowen's draft minute. I am not going to make a declaration with regard to the form that is drafted in No (2). With regard to the point covered in No (3), that on the undertaking of the respondent council to reconsider the decision referred to in No (1), in accordance with the law, urgently, and, if possible within seven days, I make that further order. There will be liberty to apply. As far as the costs are concerned, the Applicant won, and I accept Mr Bowen's submissions that he is entitled to his costs. I have not heard Mr Kerr on the matter dealt with in No 5(a) of Mr Bowen's draft minute and I do not know if that is resisted? MR KERR: We would invite your Lordship to make the usual order, detail assessment and not to make any special order, as there is nothing to justify departure from the ordinary course. We do not have a schedule in court today. MR BEATSON QC: I am going to make a detailed assessment in relation to costs. I am not going to make the order that they pay 75% within 28 days. Will you be able to draw up the order between you for the court now? MR BOWEN: I have a clean copy onto which I have written the amendments your Lordship has made, so I can hand that to your learned associate. MR KERR: My Lord, in relation to permission to appeal. The application very shortly is put on the following basis. It is partly a question of asking the Court of Appeal to look at the construction of the statutory provisions, in particular, the section 509 point which, we submit, merits the consideration of the Court of Appeal. Your Lordship may recall that this is a field of law in which two Court of Appeals have disagreed with each other, not necessarily in a manner that would impact on the result of this case should it go further, but it is a difficult area of law. I am referring to the decisions in Re C and the subsequent Dyford case in which Butler-Sloss LJ roundly rejected the reasoning of Staunton LJ. MR BEATSON QC: Not on my point. MR KERR: No, my Lord. This is a difficult area so far as construction is concerned, particularly of section 509. My Lord, more broadly, we would be inviting the Court of Appeal to adopt, if you like, a lower intensity of review, having regard to the nature of the right in play. I say this with due difference to your Lordship and with some trepidation, but we would be submitting to the Court of Appeal that the approach that your Lordship adopted was too intense a review, having regard to the nature of the right in play. It is an important right, but not a human right, for example, the right to life etcetera, but the degree of scrutiny. Perhaps we are being over anxious, but the correct approach would be to look at the material before the local authority and ask the question whether there was material before it entitling it to come to the conclusion, to which we would be submitting the answer was "yes" and not to, if you like, adopt what we would call the "fine tooth comb" approach to the decision-making process which we fear your Lordship has done to our detriment, as regards the outcome. My Lord, that is our application. MR BOWEN: My Lord, the point on which my learned friend seeks to persuade your Lordship that your judgment is wrong -- rather than this, raises any particular point of interest which the Court of Appeal may wish to consider -- is that you have adopted too intense a review under Wednesbury ---- MR BEATSON QC: A fine tooth comb point. MR BOWEN: Of course, the basis upon which your Lordship found that the decision was irrational was that there had been irrelevant considerations taken into account. One does not need to know how intense the review is to see that irrelevant considerations were taken into account. Secondly, the question of intensity to review is an interesting one but does not arise in this case. Your Lordship did not seek to adopt a super Wednesbury type approach as it is some times referred to, it was never suggested that it was necessary by me, I never sought to invoke any particular Convention right, and the classic Wednesbury test which your Lordship applied was the suitable one. I do not think my learned friend can go any better than that. As far as the question of whether this raises a point of particular public importance or interest for the Court of Appeal, really that ought to be a decision that the Court of Appeal takes for themselves. MR BEATSON QC: I think Mr Kerr you must ask the Court of Appeal for permission. MR KERR: So it be. © 2000 Crown Copyright BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII