Queensmead School, R (on the application of) v London Borough Of Hillingdon [1996] EWHC Admin 342 (10th December, 1996)

[ Home ] [ Databases ] [ World Law ] [ Multidatabase Search ] [ Help ] [ Feedback ] [ DONATE ] England and Wales High Court (Administrative Court) Decisions You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Queensmead School, R (on the application of) v London Borough Of Hillingdon [1996] EWHC Admin 342 (10th December, 1996) URL: https://www.bailii.org/ew/cases/EWHC/Admin/1996/342.html Cite as: [1996] EWHC Admin 342, [1997] ELR 331 [ New search ] [ Help ] QUEEN v. LONDON BOROUGH OF HILLINGDON EX PARTE GOVERNING BODY OF QUEENSMEAD SCHOOL [1996] EWHC Admin 342 (10th December, 1996) IN THE HIGH COURT OF JUSTICE CO 1972/96 QUEEN'S BENCH DIVISION Royal Courts of Justice Strand London WC2 Tuesday, 10th December 1996 B e f o r e: MR JUSTICE COLLINS THE QUEEN - v - LONDON BOROUGH OF HILLINGDON EX PARTE GOVERNING BODY OF QUEENSMEAD SCHOOL - - - - - - MR DAVID HARRIS QC and MR ANTHONY BRADLEY (instructed by Messrs Roebuck & Co, 131 Heston Road, Heston, Middlesex TW5 ORD) appeared on behalf of the Applicant. MR GERALD MORIARTY QC AND MS MARY MACPHERSON (instructed by The Solicitor, The London Borough of Hillingdon, Civic Centre, High Street Uxbridge UB8 1UW) appeared on behalf of the Respondent. - - - - - - (Computer Aided Transcript of the Stenograph Notes of Smith Bernal Reporting Limited, 180 Fleet Street, London EC4A 2HD Tel: 0171 831 3183 Official Shorthand Writers to the Court) - - - - - - J U D G M E N T (As approved by the Court) Crown Copyright 1. MR JUSTICE COLLINS: Queensmead school, whose governing body are the applicants for judicial review, is a grant-maintained school in South Ruislip in the London Borough of Hillingdon. It has been grant-maintained since 1991. It receives its funding, in common with all grant-maintained schools, through a body called the Funding Agency for Schools, which was constituted by s.3 of the Education Act, 1993. The level of funding is determined in accordance with the provisions of Part 3 of the Education (Grant-maintained and Grant-maintained Special Schools)(Finance) Regulations 1996. 2. There are in Hillingdon 12 grant-maintained and 3 maintained schools. The maintained schools are referred to as L. E. A. schools. Because of this ratio, the funding arrangements for Hillingdon and the other 22 authorities specified in Regulation 37(2) of the 1996 Regulations involve an allocation of a maintenance grant for all the secondary schools centrally determined by the Funding Agency for Schools under a Common Funding Formula (CFF). Since April 1994, Hillingdon has adopted a policy that the funding level for the 3 L. E. A. schools should be that applicable to the grant-maintained schools. The allocation derives from a formula which depends primarily on the number of registered pupils, weighted according to age to reflect the greater needs of pupils at various stages of their progress through the school. From this comes the expression Age-Weighted Pupil Unit (A. W. P. U.), which denotes the basic sum which the school is to receive in respect of each pupil. Added into the equation is a sum to cater for any special educational needs of pupils who do not require to have statements of their needs within Part III of the Education Act, 1993. 3. Hillingdon uses a formula for funding its own L. E. A. schools which is set out in the Local Management of School Scheme (L. M. S.) relating to the delegation of funding to the governors of L. E. A. schools. The L. M. S. has to be approved by the Secretary of State each year pursuant to section 34 of the Education Reform Act 1988. The special needs where there is no statement are catered for in a somewhat rough and ready manner through a reading test and an inventory prepared by the school which is supposed to identify five stages, the fifth being that at which a statement is provided, the first four reflecting the extra work needed in determining and catering for the needs of the pupils before stage 5 is reached. 4. In the case of ‘statemented’ pupils, grant-maintained schools received an extra allocation by virtue of Regulation 42 of the 1996 Regulations. Regulation 42(4) so far as material reads:- “Where, ...........it appears to the funding authority that the amount determined under Regulation 6 [which provides for the AMG to be determined by reference to the budget share of a comparable L. E. A. school].......would have included an amount representing a comparable maintained school’s share of funding treated by the authority under this scheme as funding for - (a) pupils with statements of special educational needs allocated in accordance with the allocation formula under the authority’s scheme,..........or (c) places in schools, other than special schools, for pupils with special educational needs they shall determine that latter amount and add it to the amount of the C. F. F. share for the school.” 5. This means that Queensmead should receive an amount in respect of the ‘statemented’ pupils which is calculated in accordance with Hillingdon’s L. M. S. scheme in the same way as is applicable to the L. E. A. schools. This sum is calculated by according to each type of special needs a cash value. The total is then passed to the school in the form of a delegated sum and is included in the school’s AMG. It is not earmarked. It is supposed to be sufficient to enable the school to meet the special needs of the ‘statemented’ pupils but, provided the school meets the needs, it does not have to spend the sum in any particular way. That sum will, pursuant to the 1996 Regulations, be recouped by the Funding Agency for Schools from the Authority. It is important to remember that the governors of the school have a complete discretion to deal with the AMG, which includes the amounts for statemented pupils, as they see fit, provided only that they use it for the purposes of the school: see 1993 Act s.81(3). 6. Up to and including the financial year 1993/94, Hillingdon calculated the amounts for ‘statemented’ pupils by approaching each school and identifying the needs of each pupil at that school. This was considered a somewhat laborious and time consuming exercise. Accordingly, it was decided to change to a formulaic approach at the same time as delegating the funding. In a report to the Education Committee dated 1st March 1994, the proposed changes (which were agreed) were explained thus:- “Statemented Pupils Since September 1993 schools have been funded for statemented pupils on the basis of a cash entitlement related to the number of statemented pupils in the school and the nature of their need. The proposal is to incorporate this funding in the L. M. S. formula. It is important to appreciate that the current allocation will continue to be used for 1994/95 and so whether the funding is delegated or not, schools will continue to receive the same amount of money. This means that no school will be disadvantaged as the result of a decision to delegate. It has proved difficult to determine weightings for pupils with either medical/physical disabilities or severe/complex learning difficulties. It is proposed for 1994/95, with a review to take place for 1995/96, that the funding for these pupils be on the basis of estimated costs for each individual pupil.” 7. The amount received by the school pursuant to the new formula was much the same as it had been receiving and was sufficient to enable it to meet the needs of its ‘statemented’ pupils. Because of the need for overall cuts in the council’s expenditure in order to enable it to meet its budget, it was decided that the formula should be varied for 1996/97. The result of that has been a cut of 62% in the amount provided to Queensmead. Instead of £77,250, which the 1995/96 formula was to have given the school for the 22 ‘statemented’ pupils anticipated for the relevant year, the school received only £30,068. That cut is said to have been unlawful because it produced a sum which is insufficient to enable the school to meet its obligations to provide for the statemented needs. The L. E. A. says that it is a proper application of a formula, itself reasonable and based on Ministerial guidance in a circular, and so the school must make up any shortfall from its general funds. 8. Before turning to the factual background in more detail, I should set out the relevant statutory provisions which are concerned with children with special educational needs. These are contained in Part III of the Education Act 1993. Section 156(1) defines special educational needs as ‘a learning difficulty which calls for special educational provision’. ‘Learning difficulty’ is defined in s.156(2) as, so far as material, a significantly greater difficulty in learning than the majority of similarly aged children or a disability which prevents or hinders the child in question for making use of educational facilities of a kind generally provided for children of his age in schools within the area of the local education authority. Finally, s.156(4) defines ‘ special education provision.’ It reads:- “In the Education Acts, ‘special educational provision’ means .... educational provision which is additional to, or otherwise different from, the educational provision made generally for children of his age in schools maintained by the local educational authority ....or grant-maintained schools in their area....” 9. Section 157 requires the Secretary of State to issue a code of practice to give practical guidance and requires L. E. A.s and school governors to have regard to it. The code is to be approved by Parliament following consultation with interested persons (s.158). 10. A L. E. A. must keep its arrangements for special educational provision under review and consult to the extent that it thinks necessary for the purpose of co-ordinating such provisions with inter alios school governors (s.159), and children with special educational needs should, if possible and provided parents do not wish otherwise, be educated in a main stream school (s.160). S.161 is important. So far as material, it reads:- “S.161(1). The governing body, in the case of a county, voluntary or grant-maintained school, and the local education authority, in the case of a maintained nursery school, shall - (a) use their best endeavours, in exercising their functions in relation to the school, to secure that if any registered pupil has special educational needs the special educational provision which his learning difficulty calls for is made, (b) secure that, where the responsible person has been informed by the local education authority that a registered pupil has special educational needs, those needs are made known to all who are likely to reach him, and (c) secure that the teachers in the school are aware of the importance of identifying, and providing for, those registered pupils who have special educational needs. S.161(2) In subsection (1)(b) above, ‘the responsible person’ means - (a) in the case of a county, voluntary or grant-maintained school, the head teachers or the appropriate governor (that is, the chairman of the governing body or, where the governing body have designated another governor for the purpose of this paragraph, the other governor) S.161(3) To the extent that it appears necessary or desirable for the purpose of co-ordinating provision for children with special educational needs- (a) the governing bodies of county, voluntary or grant-maintained schools shall, in exercising functions relating to the provision for such children, consult the local educational authority, the funding authority and the governing bodies of other such schools S.161(4) Where a child who has special educational needs is being educated in a county, voluntary or grant-maintained school or a maintained nursery school, those concerned with making special educational provision for the child shall secure, so far as reasonably practicable and is compatible with - (a) the child receiving the special educational provision which his learning difficulty calls for, (b) the provision of efficient education for the children with whom he will be educated, and (c) the efficient use of resources, that the child engages in the activities of the school together with children who do not have special educational needs. S.162 enables the L. E. A. to supply goods or services to schools to assist them in carrying out their duties and s.166 enables it to seek help from District Health Authorities or other local authorities. A L. E. A. must identify the special educational needs of children in their area (s.165) and assess needs (s.167). It must then, if the child’s needs require it, make and maintain a statement of those needs which must specify what provision is to be made for those needs and which school the child is to attend. S.168(5) sets out the duty of the L. E. A.. It reads:- “S.168(5) Where a local education authority maintain a statement under this section - (a) unless the child’s parent has made suitable arrangements, the 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 a manner as they consider appropriate, and (b) if the name of a maintained, grant-maintained or grant-maintained special school is specified in the statement, the governing body of the school shall admit the child to the school. Since the school must admit the child if it is specified in the statement, there is a requirement that the governors be consulted before the school is specified: see Schedule 10 Paragraph 3(4). I have been referred to the Code of Practice published under s.157. In Chapter 1, it sets out the fundamental principles applicable and gives general guidance as to the recommended procedures. Paragraph 1.2 - 1.4 read as follows- “1.2 The fundamental principles of the Code are that the needs of all pupils who may have special educational needs either throughout, or at any time during, their school careers must be addressed; the Code recognises that there is a continuum of needs and a continuum of provision, which may be made in a wide variety of different forms. Children with special educational needs require the greatest possible access to a broad and balanced education, including the National Curriculum the needs of most pupils will be met in the mainstream, and without a statutory assessment or statement of special educational needs. Children with special educational needs, including children with statements of special educational needs, should, where appropriate and taking into account the wishes of their parents, be educated alongside their peers in mainstream schools. Even before he or she reaches compulsory school age a child may have special educational needs requiring the intervention of the L. E. A. as well as the health services the knowledge, views and experience of parents are vital. Effective assessment and provision will be secured where there is the greatest possible degree of partnership between parents and their children and schools, L. E. A.s and other agencies 1.3 The practices and procedures essential in pursuit of these principles are that: all children with special educational needs should be identified and assessed as early as possible and as quickly as is consistent with thoroughness provision for all children with special educational needs should be made by the most appropriate agency. In most cases this will b the child’s mainstream school, working in partnership with the child’s parents: no statutory assessment will be necessary. Where needed, L. E. A.s must make assessment and statements in accordance with the prescribed time limits; must write clear and thorough statements, setting out the child’s educational and non-educational needs, the objectives to be secured, the provision to be made and the arrangements for monitoring and review; and ensure the annual review of the special educational provision arranged for the child and the updating and monitoring of educational targets special educational provision will be most effective when those responsible take into account the ascertainable wishes of the child concerned, considered in the light of his or her age and understanding there must be close co-operation between all the agencies concerned and a multi-disciplinary approach to the resolution of issues. 1.4 The detailed guidance which follows in the rest of the Code is subject to these principles, practices and procedures, and must be read with them kept clearly in mind. The Code recommends the general adoption of a staged model of special educational needs. The first three stages are based in the school, which will, as necessary, call upon the help of external specialists. At stages 4 and 5 the L. E. A. share responsibility with schools. Stage 1: class or subject teachers identify or register a child’s special educational needs and, consulting the school’s SEN coordinator, take initial action Stage 2: the school’s SEN coordinator takes lead responsibility for gathering information and for coordinating the child’s special educational provision, working with the child’s teachers Stage 3: teachers and the SEN coordinator are supported by specialists from outside the school Stage 4: the L. E. A. consider the need for a statutory assessment and, if appropriate, make a multidisciplinary assessment Stage 5: the L. E. A. consider the need for a statement of special educational needs and, if appropriate, make a statement and arrange, monitor and review provision. It will be apparent from the Stages in 1.4 that some children will be likely to need extra assistance even if they are not ‘statemented’, as will those who are eventually statemented whilst their needs are being investigated. It is for this reason that the A. W. P. U. contains an amount to cater for the special needs of unstatemented pupils, which Hillingdon’s L. M. S. calculate through identification of the 5 stages and the application of a system giving different points to each stage. Broadly speaking, a statement will be required where the L. E. A. conclude that the child needs attention or tuition which the school could not reasonably be expected to provide from its own resources. Paragraph 4.12 of the Code identifies the correct approach as follows:- “The decision as to whether to make a statement should be determined by the child’s identifiable special educational needs in the context of arrangements for funding schools in the area. L. E. A.s should, of course, arrange for the provision specified in a child’s statement to be made in a cost-effective manner, but that provision must be consistent with the child’s assessed needs.” 11. Where L. E. A.s delegate funding (as Hillingdon does), L. M. S. schemes must include conditions requiring governing bodies to ensure that all the provision specified in a statement is made. The extra funds identified by Regulation 42(4) of the 1996 Regulations are given to enable the school to make the provision specified in the statement. 12. The other relevant statutory provisions are some of those contained in Chapter III of the Education Reform Act 1988 in connection with financing. L. E. A.s must prepare a scheme for their maintained and voluntary schools to determine each school’s share of the overall budget in each financial year (s.33) and must, before preparing such a scheme (which will not come into force until approved by the Secretary of State), consult with, among others, the governing body of every grant-maintained school in the area (s.34(4)(b)). Schemes can be revised (s.35(1)), but where the L. E. A. proposes to make a ‘significant variation’ it must first consult all those whom it had to consult before preparing a scheme (s.35(3)). Significant variations are dealt with by s.35(4), which reads:- “A revision which does not make a significant variation of the scheme is referred to in this section as a ‘minor revision’, and the Secretary of State may by order specify what description of variation are to be regarded as significant for the purposes of this section.” 13. The Secretary of State has made an order, namely the Education (Significant Variation of Schemes for Financing Schools) Order 1993. Paragraph 3, so far as material, reads:- “For the purposes of section 35(3) of the Act the following descriptions of variation of schemes are to be regarded as significant -..... (v) the addition of provision for taking into account the new factor in the allocation formula under the scheme;.... (xiv) the amendment of a provision where the effect of the amendment is-.... (e) to impose on the governing body of a school which has a delegated budget any other restriction, or condition or requirement with respect to the exercise of, their power to manage their school’s budget share;.... Where financial delegation is to be provided, the L. E. A. must put at the school’s disposal a sum equal to the school’s budget sum for the financial year, which is to be determined by a formula (ss.36 and 38). A DFE circular 2/94 offers guidance on the local management of schools. Paragraph 17 notes that cash values attached to particular factors in the allocation formula are not approved elements of schemes and may therefore be altered without a formal revision. Paragraph 21 draws attention to the need to notify the Secretary of State of revisions said to be minor so that she can satisfy herself that they are indeed minor and so do not require consultation or formal approval. Paragraph 22 reads:- “There is no statutory duty on L. E. A.s to consult their schools before making a minor revision. However, the Secretary of State wishes to encourage L. E. A.s to consult schools (including GM schools) wherever possible, particularly for those variations which may have a major impact on their budgets - as will often be the case, for example, with changes to the pupil age weightings.” 14. Each L. E. A. must devise its own formula, which should be as simple and as predictable in its impact as possible so that all affected can understand how it operates and include it as a key factor in their planning for future years (Paragraph 102). It must also include “variations in the additional costs of making provision for pupils with special educational needs (including pupils with SEN but without statements)” (Paragraph 102(d)). Paragraph 109 deals with statemented pupils in mainstream schools. It reads:- “For the second group, the Secretary of State favours delegation (on the basis indicated in paragraph 43 above) wherever an L. E. A. considers it practicable to undertake this. But he recognises the difficulties involved in constructing a formula which will deliver an appropriate sum to a school to enable it to meet the needs of pupils with statements where there is not a special unit attached to a school, or where such pupils do not form a group large enough to produce a substantial aggregated sum. Moreover, the special needs of a pupil with statement will not be entirely centred in the individual and will be affected by his or her school environment. For instance, a school which does not already have a particular kind of support teachers may need to employ one for a child with a statement, but if such a teacher is already employed the additional cost meeting the needs of another statemented pupil may be marginal.” 15. The changes in the L. M. S. scheme which were approved by the Education Committee on 1st March 1994 were the subject of consultation and were agreed to by the Secretary of State The formula adopted for the calculation of the amount of money to be allocated for statemented pupils was based upon guidance given in a Circular 11/90 entitled ‘Staffing for Pupils with Special Educational Needs’. It is necessary to set out Paragraphs 5 and 6 of the Circular, which read:- “5. All pupils with statements have significant learning difficulties and require support and assistance to meet their curricular needs. This level of support will vary widely according to the nature and extent of a pupil’s SEN, the characteristics of the institution in which the pupil is being educated, and the skills of the teachers. It follows that the assessment of staffing needs is a complex matter. The approach outlined in this Circular should not be seen as a blueprint but as a broad guide for planning purposes. The Secretary of State expects L. E. A.s and schools to continue to reach their own judgements of needs in the light of local circumstances and priorities. 6. Staffing for pupils with SEN typically includes the involvement of both teachers and classroom ancillaries referred to in this circular as special support assistants (SSA). Annex A sets out a possible model for assessing staff time for pupils with various degrees of learning difficulty. The model derives from observations of classroom work seen to promote effective learning and care for various groups of pupils. Account was taken of group size, the number of staff available, and to some extent the total intensity of demand mad upon the staff by the group as a whole. The model proposes that one means of assessing pupil’s SEN is in terms of the demands made upon the teachers and the extent to which teaching methods have to be adapted to meet those demands. The model is soundly based on good practice. By relating the complexity of pupils’ learning difficulties to his or her needs for a balanced and broadly based curriculum, judgements can be made about the likely levels of demand made upon teachers and SSAs. This complexity should be regarded only as a starting point for assessing staffing levels: they should not be taken as indicating staffing minima to be applied in all cases; what is appropriate will depend on individual circumstances.” 16. Paragraph 25 reiterates that there can be no blueprint for ideal staffing arrangements since much will depend upon the particular circumstances of the institution. Annex A to the Circular sets out a possible model for calculating the staffing needed. The most relevant concern in the case of Queensmead is that in connection with what are described in paragraph 1(v) of Annex A as ‘other learning difficulties.’ 17. Paragraph 1(v) reads:- “ (v) Other learning difficulties 18. The learning difficulties of many of these pupils may be attributed to slow cognitive development, compounded in some cases by sensory impairment or physical disability. Traditionally they have often attended schools for those with moderate learning difficulties, though increasingly they receive special help in ordinary schools. This band however, also includes pupils who, against a background of otherwise normal development, experience learning difficulties specific o one area of the curriculum.” 19. There then follows a model described in Paragraph 2 of Annex A as follows:- “The following table illustrates one approach to assessing the staff time needed per pupil, in terms of teacher and special support assistants (SSA), to take account of the particular learning difficulties of each child. As indicated in the main text, it is based on observation of educational practice -.” 20. The relevant part of the Table shows that for ‘other learning difficulties’ the time needed will involve 0.1 teacher and 0.05 SSA (i.e. 1 teacher for every 10 statemented pupils and 1 SSA for every 20). 21. Annex B goes on to discuss factors relevant to different types of institutions. Paragraphs 9 and 10 deal with staffing for statemented pupils in mainstream schools. They read:- “9. Pupils with statements placed in ordinary schools are, by definition, in need of some support or provision over and above those that are generally made available. Such pupils should attract teacher provision similar to that set out in annex A according to their bands of learning difficulty. The deployment of teachers will depend on a variety of factors including the number of pupils with statements in a class, the overall staffing flexibility of the school and the school’s general arrangements for meeting the special educational needs of pupils without statements. 10. It is impossible to stipulate an appropriate level of provision for SSAs to meet the needs of pupils with statements placed individually in ordinary schools. In some cases an SSA will be the pupil’s essential ‘support’ to attend to physical needs. In other cases SSA support will be unnecessary or inappropriate.” 22. It is clear that the model is not and is not intended to be applied rigidly and that it is peculiarly difficult to assess the staffing needs required in any given school. This points to the desirability of consulting with the school to ensure that any formula (if that is the approach decided upon) is appropriate to provide for the statemented children. 23. In November 1995, Hillingdon put out a consultation document to consider possible variations to its L. M. S. scheme. Section F dealt with statemented pupils and read:- “F. Statemented Pupils Funds for statemented pupils are currently allocated to schools on the basis of the actual number of statemented pupils which a school has at any time. The actual sum is dependent on which of the eight categories of special need have been allocated to each pupil, each category having between 3 and 10 bands. One particular issue which needs to be clarified for 1996/7 relates to pupil with either sensory impairment or specific learning difficulties. Some pupils with these needs attract funds for the school in the usual way, but are also allocated contact time with one of the specialist teachers in the borough support teams. The options available are: (a) to acknowledge that some pupils require more support than normal for a pupil in a particular category, which may result in their being entitled to double the normal funding; or (b) to identify that an anomaly exists which ought to be removed. All pupils attached to the same category and band could attract the same funding and that funding should be used to purchase any provision which is necessary, including specialist teachers.” 24. There was no indication that there was to be any change in the manner in which the sums were to be calculated so that Queensmead ‘s governors would reasonably have believed that they were to receive for 1996/7 funds for their 22 statemented pupils calculated in the same way as they had been for 1995/6. This would have resulted in a provision of £77,250. 25. On 6th December 1995 a response to the consultation paper was made on behalf of the secondary schools. It expressed support for the existing arrangements of statemented pupils and recognised the fairness of removing the only element of double funding identified in respect of the particular pupils with sensory impairment or specific learning difficulties who were being assisted by specialist teachers provided by the L. E. A. outside the schools they were attending. Accordingly, Mr Tully, the Education Finance Manager, in his report on the responses to the consultation, noted:- “ Statemented Pupil Funding 18.12 There are a number of pupils with specific learning difficulties who are attracting a cash sum for the school in addition to direct specialist teaching support which is being provided by the L. E. A.. This is recognised as an anomaly and schools should be entitled to the direct provision in such circumstances and no cash transfer should be made. This will reflect current practice for pupils who attend the Uxbridge Language Class, where the school is not normally entitled to a cash allocation while the pupil attends this class. To formalise this in the L. M. S. scheme, this will require an additional banding for a statemented pupil which recognises that the school is not entitled to any additional cash as the needs of the pupil are being met by other means.” 26. On 15th February 1996 Mrs Andrews, the Director of Education Services, wrote to all head teachers a letter headed Provisional School Formula Budgets 1996/97. The penultimate paragraph read:- “You will note that no cash values have been identified for statemented pupils and the SEN points within the primary L. M. S. formula are still provisional. This is because, following consultation with schools over the funding for non-statemented pupils, Committee will be asked to consider proposals for reviewing the levels of funding for statemented and non-statemented pupils within the L. M. S. formula, with a view to reducing the differentials between these funding levels. It is expected that any proposals will affect both primary and secondary schools.” 27. On 7th March 1996, the authority was faced with the need to implement savings of at least £2m for 1996/97. Since 12 of the 15 secondary schools in its area were grant-maintained, the authority was unable to make any cuts in their overall budgets since these were determined by the CFF allocation formula. The L. M. S. scheme had determined that L. E. A. schools should not be funded any differently so that they were not disadvantaged. Thus, any cuts could only be achieved by reducing the sums allocated for statemented pupils. 28. The savings required of the Education Committee had to amount to some £1.5 million. On 11th March 1996, Mr Duggan, Queensmead’s headmaster, was informed in his capacity as chairman of the Hillingdon Association of Headteachers of proposed cuts in secondary schools’ budgets for statemented pupils of £500,000. He was understandably appalled, since he recognised that his school was facing a cut of about 60%. As he has pointed out in his affidavit in these proceedings, almost all the money received was spent by Queensmead on the extra teachers and SSAs required to provide for the statemented needs of the pupils concerned. Any sums left over were spent on equipment. In November 1994, an OFSTED inspection team had reported most favourably on the school’s provision for statemented pupils. It followed that any cuts would mean that the extra tuition needed for the children could not be provided and their statemented needs could not be met from the sums provided by the L. E. A. for those purposes. 29. Mr Tully justified the cuts in his report to the Education Committee, which was due to consider the matter on 18th March 1996, as follows:- “ Statemented Pupils 24.7 This pressure arises from the continued increase in the number of primary and secondary school pupils with statements of special educational need: these have increased from 507 in March 1995 to 575 in March 1996, a growth rate of 13%, and are predicted to rise further in 1996/97. 24.7(a) The existing statemented pupils rates are based on the staffing ratios recommended in DFEE Circular 11/90 for pupils with special needs, and these ratios take into account all the staffing support needed for an individual pupil, including his/her class and subject teachers, not only the staffing provided because of his/her statement. It is therefore reasonable, in view of the continually rising cost of statemented pupil support, to withdraw this element of double funding in this way. 30. This will be done by reducing the statemented pupil rates for all primary and secondary pupils by the average age-weighted pupil value for each age-band, ie: Year 1, Years 2 -6, Year 7 and Years 8 - 13. The effect in secondary schools would be a reduction of £0.560m (or 1.6% of their total L. M. S./GM budget, including funding for special needs). In primary schools the effect would be a reduction of £0.23m. Pupils’ special needs would continue to be met, through a combination of the additional resources given to schools for individual pupils with statements and the schools’ use of their own delegated or grant maintained budgets.” 31. The Education Committee approved the cuts on 18th March 1996, and on 21st March Mrs Andrews wrote to all headteachers explaining what had happened. There had been an overall 8.2% increase in amounts coming under the CFF and this was used to try to justify the cuts for statemented pupils. In his affidavit, Mr Tully deposes that the net increase for Queensmead would still be 7%, which was more than inflation levels and so it could afford to meet the shortfall from its overall funds. This justification cannot bear close analysis, as Mr Moriarity, Q. C. rightly accepted. The 8.2% increase was given to meet costs other than those arising in respect of statemented pupils and reflected the fact that in the year 1995/6 the schools had received no significant increase. It is the sort of argument that may sound reasonable but is in truth devoid of any merit. 32. Mrs Andrews explained that the thinking behind the proposals was that they aimed to reduce the differential between the funding provided for statemented pupils and the funds allocated for other pupils with special needs and in the longer term to provide more preventative support at the early stages and so reduce the number of pupils needing statements. The latter aim was sensible but only related to the cuts to primary schools. The former was unjustified if it meant that pupils with statements were not going to receive enough to provide for their statemented needs. The justification for the reduction was set out in the letter in these terms:- 33. “3. The cash values attached to the various bands of special needs statements, as defined in the L. M. S. formula, have been generous when compared to those given in some other L. E. A.s. This is probably because our cash values have included an element of double funding, arising from our use of the staffing ratios recommended in DFEE Circular 11/90, “Staffing for Pupils with Special Educational Needs”, as the basis for the cash values. 4. Circular 11/90’s staffing ratios are meant to cover all the teaching and support staff time needed by an individual pupil, including regular class and subject teachers as well as extra support. In other words, they are based on the staffing needs of pupils in different kinds of special school. Using these ratios has therefore led to some double funding because they include the regular staffing funded in mainstream schools mainly through the age-weighted pupils units (A. W. P. U.s) for all pupils. 5. In order to reduce the steady increase in the overall cost of statements, the Education Committee has decided to remove this element of double funding by deducting the relevant A. W. P. U. cash value from the cash value of each band of statement.” 34. The letter concluded with a promise to consult on any changes which might need to be made in the future ‘particularly regarding the comparative allocation of funds for the various bands of statemented special needs.’ 35. The headmaster wrote to parents deploring the cuts and asserting that the L. E. A. was responsible for funding the special educational provisions. In addition, the school referred the Authority’s action to the Secretary of State because it was believed that there had been discrimination in favour of L. E. A. schools. That has not been pursued before me. Following the instruction of solicitors by the school, Mrs Andrews wrote on 1st May 1996 repeating the argument about the generous 8.2% funding and seeking to explain the supposed double funding thus:- 36. “Element of Double Funding: The use of the term double-funding has caused some confusion amongst schools and it may be helpful if I explain the change to the funding level in a different way. Local authorities adopt different mechanisms for funding schools for statemented pupils, including providing cash entitlements to “top-up” their main budget. The levels of funding which individual L. E. A.s determine is at the discretion of the local education authority. In Hillingdon, the Education Committee has exercised its discretion to reduce schools’ entitlement to these cash additions. Whether it is described as a removal of double funding or a reduction in the specific funding for statemented pupils does not change this fact.” 37. Following a meeting with Mr Duggan and other headteachers on 20th May 1996, Mrs Andrews wrote a letter confirming that it was the L. E. A.’s responsibility to provide additional resources for pupils with statements of special educational needs and recognising that the cuts had resulted in pupils with moderate learning difficulties at Year 8 and above receiving funding which was too low. Finally, on 14th August 1996 the Department decided that there was “no clear evidence that Hillingdon L. E. A. is failing in a statutory duty or acting unreasonably in arranging provision for statemented pupils” It believed that overall it was likely that the grant-maintained schools would have sufficient resources to meet the needs of statemented pupils. 38. In his affidavit, Mr Tully explained that it had been pointed out to him in December 1995 that direct application of the model in Annex A of Circular 11/90 to statemented children resulted in provision for class and subject teachers being made twice in relation to such children. I imagine that if he had received the information earlier it would have featured in the consultation exercise commenced in November 1995. I am bound to say that I am surprised that he did not in any event draw the attention of the schools to the situation since it must have been known by the authority that budget savings might be needed and in any event the L. E. A. should not have been paying more than was necessary. The failure to provide any advance warning of the proposed cuts or seek representations is explained on the basis that these were last minute decisions resulting from the savings required by the Council in the budget meeting on 7th March 1996. 39. Budgetary constraints and lack of funds can play no part in the assessment of a child’s special educational needs. This seems to me to follow from the decision of the Court of Appeal in R v Gloucestershire CC ex p. Barry [1996] 4 All E. R. 421 at p 442a. Financial constraints can be considered in deciding how those needs are to be met, provided always that they are met. It cannot be said that a need exists but it would be too expensive to provide for it. The requirement is to meet the needs, but the provision made may be the minimum necessary to meet them. The L. E. A. has a duty, which is non-delegable, to arrange that the special educational provision specified in a statement is made for the child: 1993 Act s.168(5)(a)(i). The way in which the provision is made may be the most economical so long as it is made. The governors of the school in their turn have a duty to use their best endeavours to secure that the special educational provision is made: 1993 Act s.161(1)(a). 40. The duty of the L. E. A. to arrange that the provision is made will often be discharged by providing funds to cover the minimum necessary. In some cases, the L. E. A. will itself make the necessary provision. It may also agree with the school or anyone else that the provisions will be met by them. Thus in R v Oxfordshire CC ex p. P [1996] ELR 153 Laws, J decided that it was perfectly lawful for the L. E. A. to agree with a school that the school should make some of the provision out of its overall budget. But Laws, J , equally correctly in my view, indicated that if the school were suddenly to turn round and say it was no longer prepared to apply any of its budget to the cost of making part of the provision, the L. E. A. would immediately have to meet the full cost: see p.159G. 41. In my judgment, the L. E. A. can only carry out its duty to arrange that the necessary provision is made by providing the required funding, unless it can either enter into an agreement with the school that the school will make the necessary provision and pay for it or for any part of it or make it itself or arrange for a third party to make it. It need not fund to any greater extent than is sufficient to enable the school to make the minimum necessary provision. Since the duty is owed to each individual child, it will normally be necessary and will certainly be desirable to discuss with the school how the provision can best be made and funded for each child. 42. Where there is discussion with the school, no problem should arise in deciding what funds are needed. If agreement cannot be reached, the L. E. A. will have to decide how much is needed to make the relevant provision and its decision can only be challenged by the school (assuming no procedural impropriety) if irrational. Thus if the L. E. A. makes a reasonable provision, the school will have to decide how to deal with the needs and, if it decides more must be spent than is provided by the L. E. A., it will have to find the balance. 43. The problem in this case arises largely because there has been no discussion with the school but the L. E. A. (as it is entitled to do) has decided to adopt a formulaic approach. The general principles of course apply: if the formula produces a sufficient sum, the school cannot complain. But if the formula does not in fact produce a sum sufficient to meet the special educational provisions set out in the statements, the L. E. A. must give more. It cannot require the school to make up the balance. It is for the L. E. A. to decide what is sufficient but it must take all relevant matters into consideration and, as it seems to me, unless it discusses the matter with the school, it is likely to fail to have regard to the actual needs of all the relevant pupils and, where a change is being made, to whether the formula is indeed sufficient to enable the school to provide for the needs. In addition, it is essential that the formula is properly applied so that sufficient sums are provided. 44. The reduction was justified on the basis of double funding. During the course of the hearing, the L. E. A. made clear how it believed this had arisen. It said that the model in Annex A of 11/90 was appropriate for special schools (viz: schools specially organised to make special educational provision for pupils with special educational needs and approved by the Secretary of State: 1993 Act s.182(1)) and had not been adapted in its application to mainstream schools such as Queensmead. The A. W. P. U. was paid for all including statemented pupils, and the amounts derived from the model were paid in addition. Thus, it is said, the school already receives sums for the statemented pupils and the A. W. P. U. element should be subtracted. Attention is drawn to Paragraphs 9 and 10 of Annex B 11/90 makes clear that the circumstances of the individual schools have to be considered. Paragraph 5 of the body of 11/90 contains the sentence: “This level of support will vary widely according to the nature and extent of a pupil’s SEN, the characteristics of the institution in which the pupil is being educated and the skills of the teacher.” 45. One of the major objectives of the 1993 Act is to ensure that statemented pupils should, if possible, be educated in mainstream schools in order t o obtain the benefit of the national curriculum and contact with ordinary pupils and the school’s facilities. The A. W. P. U. element in the funding provides the normal teaching for the pupil in question: the additional amount is for his or her extra teaching or SSA provision. The model in Annex A is concerned with the extra amount of tuition and attention needed. At Queensmead, it was spent on the salaries of extra teachers and SSAs who would not have been employed but for the needs of the statemented pupils. While some adjustments may be proper to cater for the particular circumstances of a mainstream school, it is in my view wrong to subtract the whole of the A. W. P. U.. That is bound to lead to an underfund and it is no surprise that that is precisely what happened to Queensmead. 46. Even if the L. E. A. was correct to apply the formula as it did, it is clear on the evidence that the sums do not provide sufficient to meet the needs. Each side relies on the delegation of funding to the governors and the lack of any requirement for them to use sums in any particular manner to support their cases. The L. E. A. says it has provided enough following the formula correctly. The school must then use it as it sees fit and if the school chooses to spend more it must make up the difference. The applicants say that there is no power in the L. E. A. to require them to use their funds in any particular way or for any particular purpose and so the requirement to fund the difference is unlawful. In my judgment, one returns to the duty upon the L. E. A. to arrange for the needs to be met in accordance with the statement. As I have already said, if the formula does not produce enough money for that to be done, the L. E. A. must make up the balance and cannot require the school to use its funds for that purpose. 47. In those circumstances, the reduction of the funds was unlawful and the decision of the Education Committee cannot stand. This means that the alternative ground relied on by the applicants that there has been a failure to consult, either in breach of a statutory requirement or of a legitimate expectation, need not arise. However, the matter has been argued and I ought to deal with it albeit I shall do so briefly. 48. It seems to me that it will usually be impossible to decide on the appropriate sums to meet the special educational needs of statemented pupils without consulting the schools in question. Section 159 of the 193 Act points in that direction. Where there are significant changes proposed to funding levels it is difficult to envisage circumstances where the L. E. A. could properly comply with its duty under s.168(5)(a) of the 1993 Act without consulting the schools to be affected. This is not so much because of the requirements of fairness but because of the need to have regard to all material considerations in reaching its decision. 49. It is submitted by the applicants that there is a requirement of consultation in particular under Paragraphs 3(v) and (xiv)(e) of the 1993 Order to which I have already referred. The L. E. A. was reducing the amounts provided by the formula by applying as it believed a correct interpretation of the formula. This did not involve the addition of any provision within the meaning of Paragraph 3(v). In one sense, any reduction of funds will impose a restriction on the governors’ powers to manage their school’s budget share. But it seems to me that Paragraph 3(xiv) is looking at their power to manage rather than their ability to pay for particular matters. Otherwise, any reduction in funding will require consultation and I do not think this is what the Order requires. 50. But that does not conclude the matter. A statutory requirement merely guarantees that there must be consultation in particular circumstances. It does not preclude the implication of a need to consult in other situations if fairness so requires. In my view fairness does, subject to one proviso, require that a school must be notified and be allowed to make representations where the only reasonable view must be that the reduction in money is likely to have a significant effect on its overall budget. Consultation in that sense is required. The need to act quickly because, for example, of an unexpected requirement to reduce the L. E. A.’s budget may tend to make consultation impossible. That is said to be the case here. I disagree. Mr Tully says he knew in December of the supposed error in the application of 11/90. It seems to me that it should then have been appreciated that a reduction of funding might be called for and the school asked to make representations. I do not think it necessary to think in terms of legitimate expectation. It is sufficient to say that, quite apart from the need for consultation to enable the L. E. A. to comply with its statutory duty under s.168(5)(a)(i) of the 1993 Act, fairness dictated such a need because of the significant reduction in the school’s budget which would result. 51. I shall hear counsel on the appropriate relief in the light of my conclusions. You have had copies, I think, of the Judgment. 52. MR HARRIS: We have, thank you. 53. MR JUSTICE COLLINS: For the reasons given there I have decide that the decision cannot be upheld. Now, what is the appropriate relief? 54. MR HARRIS: Before we deal with relief, can I, with respect, invite your Lordship's attention to the bottom paragraph at page 22 in case some elaboration of one sentence is appropriate. Your Lordship sees the first sentence reads, "Where there is discussion with the school, no problem should arise in deciding what funds are needed. If agreement cannot be reached, the LEA will have to decide how much is needed to make the relevant provision and its decision can only be challenged if irrational." My Lord, assuming that there is procedural propriety that, with respect, must be correct vis-a-vis the school, but of course it is possible that a parent may be able to challenge in the individual case through the Special Needs Tribunal, and whether your Lordship feels it is appropriate to say something like, "Its decision, if procedurally correct, can only be challenged by the school if irrational", just to be as specific as possible. 55. MR JUSTICE COLLINS: I am grateful, Mr Harris. I confess that I was thinking obviously in terms of the school. I was not thinking in terms of the parents and you are right, there may be the possibility always of a parent taking whatever action is appropriate. I think if I add "and its decision can only be challenged by the school". 56. MR HARRIS: Assuming it is procedurally correct if irrational. 57. MR JUSTICE COLLINS: "... by the school (assuming no procedural impropriety)", I think is the expression, isn't it? MR HARRIS: Yes, my Lord. 58. MR JUSTICE COLLINS: I am grateful, Mr Harris. I will make that amendment. 59. MR HARRIS: And, my Lord, there is a typographical error. 60. MR JUSTICE COLLINS: There are one or two I have spotted. 61. MR HARRIS: May I just bring this one to your Lordship's attention? Four lines up from the bottom of page 20 it should be 14th August. 62. MR JUSTICE COLLINS: That I missed. 14th August? MR HARRIS: Yes. 63. MR JUSTICE COLLINS: I am grateful. There are one or two obvious ones which I will correct when I correct the transcript. 64. MR HARRIS: I am unhappy to tell your Lordship that we have not reached agreement about relief. Can I, in the first instance, apply for costs? 65. MR JUSTICE COLLINS: I do not imagine there will be any possibility of opposing that. MS MACPHERSON: No, my Lord. MR JUSTICE COLLINS: Certainly. 66. MR HARRIS: I apply, secondly, for certiorari to quash the decision of 18th March 1996. 67. MR JUSTICE COLLINS: The only decision that I can quash will of course be the decision relating to your school. 68. MR HARRIS: That is what I was going on to say, my Lord, yes, because the formula may possibly produce sufficient funds overall in respect of other schools. 69. MR JUSTICE COLLINS: I can only be concerned with the effect on Queensmead School. 70. MR HARRIS: My Lord, what I would invite you to say is certiorari to quash that decision in so far as it relates to Queensmead School. 71. MR JUSTICE COLLINS: I will see what Ms MacPherson has to say. 72. MS MACPHERSON: On that point, my Lord, may I open by saying that of course the local authority are very anxious to ensure that they introduce a system which is consistent with the law, and where they would be worried -- and we understood that your Lordship did indicate in the substantive hearing that relief would be available to Queensmead and not to the rest of the schools. 73. MR JUSTICE COLLINS: That is quite right. 74. MS MACPHERSON: But, my Lord, the local authority do feel very strongly that they would be in a very uncomfortable position indeed if judgment was given only for Queensmead and that the other schools were to continue under a system which the court had deemed to be unlawful. 75. MR JUSTICE COLLINS: Ms MacPherson, that seems to me to be a matter for the authority. I can only deal with Queensmead, because I only have the facts to enable me to deal with Queensmead. For all I know in relation to the other schools the formula adopted, for whatever reason, maybe because they do not have many statemented pupils, will be all right. I doubt if it will, but it may be, but they haven't taken proceedings. It would be open to the local authority, as I see it, to reconsider the matter in the round in the light of the judgment on the basis that they would have to consider whether they are giving enough to the other schools. That is a matter for them though. 76. MS MACPHERSON: My Lord, in the light of your Lordship's judgment your Lordship came down pretty strongly against the principle which this authority had been following, which was that the money for statemented children was not ring fenced and could be subsidised, as it were, from the AWPU. My Lord, it has to be remembered that this affects primary schools as well. The whole principle of your Lordship's judgment goes to the heart of this principle and the authority is going to have to review all these matters in respect of all those schools. 77. MR JUSTICE COLLINS: I am sure that is right. 78. MS MACPHERSON: The authority knows its position to back-date further funding to last March. 79. MR JUSTICE COLLINS: That is precisely why I can only deal with it in relation to this school. The authority may have to find some more funds to deal with Queensmead, but what they are going to have to do, for next year certainly, is to reconsider the whole matter in the light of the judgment, assuming it stands, and approach the funding for all schools next year with the principles in mind. What at the moment it does not have to do is to reassess for the other schools which have not taken judicial review proceedings, because, as I understand the law, a decision, even though flawed, will stand in public law terms unless it is set aside in properly constituted proceedings. Now, at the moment any other school would be prima facie way out of time for challenge and there would be, I would have thought, a strong argument on the basis of detriment and prejudice -- I forget the exact terms of section 31(6) -- to say leave should not be granted. If they had wanted to take the matter they should have taken the risk that Queensmead took to challenge it in these proceedings. They have not done so. So they are, if I may use the vernacular, lumbered for this year but will have to have the matter reconsidered for next year. What I do not think the authority has to do, although it is open to it to do it if it thinks it right, is to reopen for all the other schools the amount that has been allocated for this year. I can well understand that it would create enormous problems if that were necessary. I certainly do not regard it as an inevitable result of this judgment that that should happen for this year. Certainly it must happen for next year, but that is a different point. 80. MS MACPHERSON: So be it, my Lord, under that head. On the question of the exact decision of the education committee which is to be quashed in relation to Queensmead, I see from your judgment, my Lord, that, as to the AWPU, you say it is wrong to subtract the whole lot, but there is room for some reduction. 81. MR JUSTICE COLLINS: Certainly it seems to me that one has to, as I have said, look to the individual school to see how the thing works in the individual school. 11.90 is not written in stone, as I understand it; there is flexibility. That is part and parcel of the directions, if you like, or the guidance given by the Secretary of State. 82. MS MACPHERSON: Yes, my Lord. So what would the order be, because what was resolved, among other things, was that the measures outlined in section B of the committee report for balancing the education review budget for 1996/7 be endorsed, and among the items in that section B were the words, "The reduction be done by reducing statemented pupil rates for all primary and secondary pupils by the average age rate of pupils for each age band." 83. MR JUSTICE COLLINS: It may be, Ms McPherson, that certiorari is not necessarily the appropriate remedy when one is going to this sort of decision, because this is not a decision which cannot be reconsidered as a matter of law. I mean it is always open to the authority to reconsider the matter, isn't it? It is not a case of being functus, as it were. So it may be that all that is necessary is a declaration that the funding for Queensmead must be reconsidered in the light of the judgment that I have given. Subject to Mr Harris, it may be that that is a more appropriate form of relief. What I have to do and what the authority has to do, more importantly, is to reconsidered the funding and almost certainly -- well, not almost; certainly pay them more. Whether it is going to be £77,000 is a matter no doubt for discussion, because I do not say it has to be £77,000 (whatever the exact figure was), but what it has to be is sufficient to enable the needs to be met. It may be the only way you can do that is by in fact giving the £77,000, because that is the way the thing is structured so far as Queensmead is concerned. I cannot say that must be the amount, because obviously I do not have the material to enable me to say that that is certainly the position. There must be the flexibility and the discretion in the authority, provided, as I have said, that it does meet the individual needs of the individual children in the individual school. That, as I see it, is effectively what this judgment has said. 84. MS MACPHERSON: Thank you for that, my Lord, because my clients are most concerned that on the basis of Queensmead only they would be very concerned if there was an order that they should simply restore the AWPU. 85. MR JUSTICE COLLINS: I cannot make that order and I do not think Mr Harris is asking me to do that. 86. MR HARRIS: I am indeed, my Lord, for reasons I will tell you in a moment. 87. MR JUSTICE COLLINS: Perhaps I had better hear them. 88. MR HARRIS: My Lord, can I preface it by saying I did not understand your Lordship to be suggesting that it is appropriate for the authority to reduce a part of the AWPU; merely that it is necessary to assess the provision which is the minimum appropriate for satisfying the special education needs, if you look at it in the round without regard to any particular component. 89. MR JUSTICE COLLINS: I am not saying there must be a reduction; what I am saying is that there can be. It depends on looking at all the circumstances. On the evidence before me at the moment the school quite clearly does allocate the whole amount of what they are getting to the extra teachers and the extra SSAs. It was asserted, although there wasn't any evidence directly called to that effect, that that did not mean that all that sum was necessary to provide for the needs of the children, and that was the difficulty I was in. I do not have the material, I thought, to enable me to say that it cannot go below £77,000, whatever. 90. MR HARRIS: I understand that point, and for the next financial year it would be open to the authority to determine the minimum necessary for the satisfaction of the needs identified in the statements. The problem is in relation to this year, and our submission goes in this way: Firstly, the authority imposed a formula, as it was entitled to do. Had it not misinterpreted its own formula then the sum which would have been received by the school is the £77,250. That was asserted in the grounds and conceded as factually correct in paragraph 20 of Mr Tully's affidavit. 91. MR JUSTICE COLLINS: The difficult is that I have not found that the misunderstanding of the formula must result in the restoration of the whole of the AWPUs. I suspect in the case of Queensmead on the evidence before me it probably will, but can I be sure of that? 92. MR HARRIS: My Lord, in our respectful submission, yes, for this reason: The formula was calculated as it had been for two or three years in the past. The local authority determined that it was inappropriate because of a specific argument, that is that there was double funding. Your Lordship has found that there was no double funding and the AWPU was necessary for the financing of the normal main stream education of each of the pupils, and therefore the argument advanced by the local authority has fallen to the ground and there is nothing they have put forward to challenge the cost of the minimum provision which the school has been allocating to the pupils. MR JUSTICE COLLINS: That is true. 93. MR HARRIS: My Lord, that is what comes out of the formula, but the second point which is related and has to be dealt with together is: As a result of the approach of the authority the school has actually devoted funds to provide special educational provision in accordance with the previous standard. 94. MR JUSTICE COLLINS: You have a strong point if you add in the consultation point. Without that, you have got yourself into a position where the funds were needed, indeed have been needed, to cover the relevant cost, and therefore to have to cut back at all without further discussion and consultation would be very damaging and very difficult. 95. MR HARRIS: My Lord, in fact, with respect, it is even stronger than that because the authority never sought to challenge the amount of provision which the school was supplying. It was merely saying, "Because of what we understand to be a misconstruction of our own formula there has been double funding and you have to pick up the balance of the cost to satisfy the specified need." There has never been a challenge to the quantum of the specified need, and the authority cannot then turn round and say, "Having induced you to pay that amount to satisfy the needs which we were not challenging, as (inaudible) statement, we are now going to do so retrospectively." 96. MR JUSTICE COLLINS: Also one has to consider the question of possible interest, doesn't one? I mean, if they are going to battle over the amounts now, you have been kept out of your rightful monies for nine months nearly and it will be nearer a year, and that arguably ought to be compensated for. 97. MR HARRIS: My Lord, that undoubtedly must be the case. Can I deal with the balance for this year? The argument I have just advanced relates in part to the commitment of funds by the school in the past, but it would be damaging to an individual pupil if a pattern of educational provision were established and then that was suddenly reduced. The appropriate time for reconsideration is not retrospectively. 98. MR JUSTICE COLLINS: Mr Harris, could one perhaps approach it in this way? It is clear that the amounts provided, or were thought to be going to be provided, were to be spent on the salaries of, I forget how many offhand -- is it three teachers or two? It does not matter; however many teachers and however many SSAs that were needed to deal with the children. I do not know whether the £77,250 was more than enough to cover that. 99. MR HARRIS: The evidence is marginally more than enough. 100. MR JUSTICE COLLINS: If it was marginally more than enough then there is a possible argument, isn't there, that the margin, even for this year, is negotiable, as it were? 101. MR HARRIS: My Lord, no, because the margin has been committed to the purchase of equipment. 102. MR JUSTICE COLLINS: I know, but -- yes, I see. I am still slightly concerned as to whether I can properly on the evidence say that figure must be the figure. 103. MR HARRIS: My Lord, you can do so on the evidence because it was asserted to be the figure necessary for this provision in the grounds. It was actually accepted as factually correct in Mr Tully's affidavit. 104. MR JUSTICE COLLINS: You are right, there has been no challenge to the figures. You are quite right. 105. MR HARRIS: And on the basis of the approach by the LEA the school has actually committed that amount of funding to these purposes but only received approximately 40 per cent of it. 106. MR JUSTICE COLLINS: Let me hear what Ms MacPherson has to say. Thank you, Mr Harris. Ms MacPherson, I think there is some force in that, and I understand why it was done like that, but on the material before me in relation to Queensmead I really have nothing to challenge that this was a sum that was properly to be spent on the necessary provisions for the children in question. It may be, as I say, that for next year you can open it all up again, but I think for this year there is great force in what Mr Harris says, isn't there? 107. MS MACPHERSON: My Lord, there are two points on that. One goes to discretion and one goes really to the essential matter of how much funding is necessary, and, looking at that, I have in front of me, my Lord, page 22 of your Lordship's judgment where you say twice that it is the LEA's duty to arrange the provisions made but that that duty will often be discharged by providing funds to cover the minimum necessary. That is in the first paragraph, and in the second paragraph again those words "minimum necessary" are repeated three lines from the bottom of the second paragraph. It does seem clear to me, my Lord -- and I am sure your Lordship will correct me if I am wrong -- that your Lordship is not saying that a particular standard of provision has to be achieved. 108. MR JUSTICE COLLINS: That is quite right. 109. MS MACPHERSON: There was no submission made by the applicants as to the level of provision that was at Queensmead. They just told the court what level had been provided. 110. MR JUSTICE COLLINS: Yes, but it went a bit further than that. The evidence before me was that these extra teachers and SSAs were indeed necessary and were the minimum necessary, because without them the needs could not be provided for. So I have no evidence before me on the material other than that this was the minimum necessary to provide the funding, as I see it. 111. MR HARRIS: Your Lordship will remember at the very start of the case there was some discussion whether it was part of the local authority's case that there had been over-provision, and, as I understood it, there was an express concession by Mr Moriarty that the amount of provision was not challenged as being appropriate. 112. MR JUSTICE COLLINS: That is right, but I certainly did not understand him to accept that it was necessarily the correct amount to provide what we call the minimum necessary and what you have accepted. What he did accept was that it was all spent by the school on providing for the needs of the statemented children. 113. MR HARRIS: There is an inconsistency, in our respectful submission, because, if your Lordship is correct, he started from the proposition that I put before your Lordship, that in the course of his submission he advanced the proposition that your Lordship has put. 114. MR JUSTICE COLLINS: Ms MacPherson, I hope I have got it right as to what the position was. I did not understand Mr Moriarty to accept that that was necessarily written in stone, as it were, as the amount which was the minimum necessary. On the other hand, on the evidence that I have it is very difficult to find other than that the provision of the extra teachers and the extra SSAs are less than the minimum, because you cannot have half a teacher, can you? 115. MS MACPHERSON: But you can have two pupils. 116. MR JUSTICE COLLINS: True. I mean, if you need a teacher. 117. MS MACPHERSON: But in these matters, my Lord, surely when it comes to organising provision in any educational establishment, whether it is for statemented pupils or pupils with special needs or any kind of pupil, you do come down the scale, subject of course to avoiding having undesirably large numbers in one group, and, my Lord, it does seem to me I have no recollection whatsoever of the applicant using the word "minimum". They at no stage said, "Well, we are down to the bear bone." 118. MR JUSTICE COLLINS: Because they were not thinking of it in those terms. One talks about the minimum necessary because that is the legal requirement, but frequently the minimum necessary will be and will have to be what is being provided in the form of extra teaching and so on, and the two are often, one would imagine, equated, because you cannot scale it down any lower sometimes than whatever is necessary to provide for the extra teaching staff. 119. MS MACPHERSON: I quite understand that, my Lord, but it seem to me that what Mr Moriarty said was that we had never alleged that there was over-provision, and what your Lordship is saying on page 22 is that we have a duty to provide the minimum necessary. 120. MR JUSTICE COLLINS: What I do not want to do is give a recipe for another application or quarrelling about precisely how much. It seems to me that that would be, to say the least, undesirable. You got it wrong, if my judgment is correct; you got it quite badly wrong. The school, on the evidence before me, was providing the amount that it thought it was going to get. If you like, it was earmarked (I am using that not in a technical sense) for the provision of what was necessary and what OFFSTED, having checked, accepted was necessary. It seems to me, particularly as nine months have passed since they ought to have got the summons to cover their expenses, that it would be undesirable, and I of course recognise the authority has a duty to its council tax payers and a duty not to pay more than the law requires it to pay. On the other hand, I suspect we are going to be talking about rather small sums when we get down to the details of what is between you and the school, and I do not think I can direct a specific sum. I hear what Mr Harris says and I am very sympathetic to it, but nonetheless I do not think the material before me enables me to dictate, as it were, and declare, if you like, that it must be £77,250 and not a penny less. What I can and do say is that it seems to me that it would be surprising on the material before me if it was right to make it for this year anything less than £77,250, but there must be a margin of discretion. I would be, to say the least, disappointed if the local authority started trying to cut it back. It certainly cannot -- and this, I think, must be the case -- cut it back for this year, surely, beyond the teaching staff and the SSAs. It may be able to have a margin of error, as it were, in relation to the amounts for equipment. 121. MS MACPHERSON: Given that your Lordship did say in your Lordship's judgment that there was room for reduction, although total subtraction of the AWPU was not acceptable, I must say, my Lord, those words did give me some hope, and I do urge your Lordship to ask the authority to negotiate with Queensmead, because if this authority is tied to a particular amount -- and your Lordship has expressed it in quite strong terms that you expect the £77,000 to be forthcoming unless there is good reason. I ask your Lordship not to express it in those very clear terms. 122. MR JUSTICE COLLINS: Yes, but there must be good reason, and at the moment you have not put forward material before me which leads me to believe there is good reason to reduce it below the amount. Subject to Mr Harris, I think the right course is to declare that you must reconsider the matter in the light of the judgment; that the amount that has been given is clearly, in the light of the judgment, insufficient to cover the needs; that you got the formula wrong and that you must pay them such sum as is correct having regard to this judgment. I have already indicated that on the material I would be surprised if it was significantly less than the amount that they would have got had you not changed the formula, but what I think the sensible thing to do is to retain a liberty to apply so that if you cannot reach agreement you come back before me. Now, I am doing that deliberately because you know my views and you are going to have to have some pretty strong evidence to persuade me, in the light of the evidence which has been before me on the papers, that any reduction is justified. Equally, the school must be reasonable too, because it must appreciate we are talking about minimum necessary. That is, I think, the best I can do for you, Ms MacPherson. 123. MS MACPHERSON: I am grateful for that and thank you, but may I ask your Lordship this: Your Lordship did mention the case of Gloucestershire v Barry , and I understand your Lordship's point that cash constraints are no excuse, but, my Lord, that being the case, we are in a situation now where we are nine months into the financial year, and we were capped. The state of our finances at this moment, are they a matter to which we can have regard in our negotiations? 124. MR JUSTICE COLLINS: Only in so far as it is lawful. What you cannot do is to go below what is necessary to provide for the needs, and if you haven't got the money you have got to find it somewhere. I know it is easy to say that, but you got it wrong in the first place and you have got to get it right. If you can persuade the Secretary of State to stump up, good luck to you. Seriously, I am sorry that this is a legal obligation upon you, if I am right, to provide. You made your cuts in the wrong place. Sympathetic though one is to local authorities in the position that you find yourselves in, and one knows they are all in this appalling state, but so long as Parliament provides obligations upon you they have to be met and you will have to cry to Parliament and not to me. 125. MR HARRIS: I have no objection to the course your Lordship proposed. Can I make this observation, however, in case it might influence the conduct of the negotiations? It is our very strong submission, if I can put it in private law terms for the moment, that the authority is estopped from disputing that £77,250 is the minimum necessary to comply with the provision under the statements. In public law terms there is a legitimate expectation of that amount. 126. MR JUSTICE COLLINS: I am not sure you are in quite a Preston -type situation, are you? 127. MR HARRIS: My Lord, that may or may not be; I am merely indicating what our position is. 128. MR JUSTICE COLLINS: Mr Harris, I think that everything I have said suggests you are in a relatively strong negotiating position, but I do not think I can say that it must be that amount, because I simply am not able on the material to deny to the authority the possibility that they might properly be able to show when all the figures are gone into that the position is that the school does not actually need all the £77,250. 129. MR HARRIS: My Lord, there are two separate arguments obviously: One is whether the £77,250 is the minimum provision necessary under the statements; and the second is whether the LEA are entitled to challenge that as the minimum, having regard to their conduct in the past. Your Lordship really does not have sufficient information on either of those two issues. MR JUSTICE COLLINS: No, I do not. 130. MR HARRIS: In relation to the second there is some information, but clearly the argument was not specifically directed to it and it will have to be considered in depth. 131. MR JUSTICE COLLINS: That is why I thought it right to give liberty to apply and reserve it to myself if there is a problem that arises, because I think there is considerable force in what you say, that in the light of the way this happened, particularly the last minute decision to change the formula, it could well be said that if they are going to adopt the formulaic approach they must stick to the same formula which was more correct than the new one, which was clearly incorrect, and on that basis it would be right to give you the £77,250. All I am saying is that I do not think -- and I appreciate this is a recipe for the possibility of discussion or maybe disagreement, but I do not think it would be right for me to direct on the material that it is that amount and nothing else. I have gone as far as I can, I think, to indicate what my views are at the moment and it is going to take, I am bound to say, a pretty strong piece of evidence to persuade me that the Council is justified in reducing it. They know that, they have heard me say that and I have reserved it to myself deliberately because I think it is right that any dispute should be dealt with that way rather than needing any fresh proceeding before someone else. 132. MR HARRIS: Your Lordship appreciates that I concede that that is the appropriate decision to be made; I am merely, as it were, shooting across the bows of the local education authority. 133. MR JUSTICE COLLINS: Mr Harris, it may be better, if you want a declaration if you try and agree a form of words for a declaration. If you cannot agree a form of words then I will have to decide. I hope I will not have to decide. 134. MR HARRIS: Can I hand up a form of words which I would have thought was relatively neutral, because it does not actually address the reservations which my learned friend has just expressed. 135. MR JUSTICE COLLINS: That is fine because you know what the position is. (Same handed). That is certainly fine. There is no problem with that, I would have thought, Ms MacPherson, is there? 136. MS MACPHERSON: No, my Lord, subject to only one small detail at (a). Those instructing me have asked me to put to your Lordship that after the words "to determine", the words "on a formula basis" should be inserted. 137. MR JUSTICE COLLINS: No, there is no need to declare and it would not be right to declare that it has to be on a formula basis; it can be on any basis they want. It does not have to be on a formula basis; it can be on a formula basis. 138. MS MACPHERSON: The implications of that, my Lord, are that in relation, for instance, to the FAS on SFF funding is of course regulation 42(4) would no longer come into play if you are starting to undo the formula funding. 139. MR JUSTICE COLLINS: I am not in the least. All I am saying is that it is perfectly open to you, as I understand it, to go round the schools and determine what is needed for each individual pupil and each individual school and apply the matter accordingly. You can of course do it on a formula basis. It may be that it is much more sensible to do it on a formula basis. All I am questioning is that you have to do it on a formula basis, because you manifestly do not. 140. MS MACPHERSON: That would be the status quo of course, my Lord. That is how we have been doing it. 141. MR JUSTICE COLLINS: Yes, but there is nothing to stop you doing it on a formula basis and it may be more sensible to do it that way, but equally there is nothing to stop you going round the individual schools and the individual pupils and determining how much is needed, is there? 142. MS MACPHERSON: Given that 19 schools in 1994 when consulted were very keen to have delegated statemented funds on a formula basis. 143. MR JUSTICE COLLINS: This declaration does not stop you doing it on a formula basis. I am not going to declare that you have got to do it on a formula basis. 144. MS MACPHERSON: Your Lordship may wonder why I am pursuing this. It is because I have been looking at the original formulation of the declaration which was in terms that the financial provision should be determined, as it were, on a pupil to pupil basis, the relief as originally sought. 145. MR JUSTICE COLLINS: I am not saying that. As I have made it clear in my judgment, I think, it can be perfectly lawful to do it on a formula basis, provided that the formula does actually meet the minimum requirements of each pupil. If it does not, if the formula does not work for a particular school and particular pupils then you have to provide more. I may be right, I may be wrong about that, but that is what I have decided. 146. MR HARRIS: That was certainly our case when it was argued. If it is of any comfort to my learned friend, it is not challenged by the school that it is appropriate for the LEA to introduce a formula, but, as your Lordship indicates, the formula must operate so as to enable the LEA to comply with its statutory duty. 147. MR JUSTICE COLLINS: That is what I have decided on the basis that the law says this is an individual duty to the individual children. I may be wrong about that, but that is what I have decided, and therefore I am not going to declare, Ms MacPherson, that it has to be on a formula basis, but equally I am not going to declare it has to be on any particular basis. 148. MS MACPHERSON: My Lord, my instructions are not to pursue the matter. 149. MR HARRIS: Can I just mention the word "reasonably" at the end of (a) in paragraph 3. I think that may be in excess of your Lordship's judgment. 150. MR JUSTICE COLLINS: I think it probably is. "The minimum financial provision which is necessary." 151. MR HARRIS: It may be that if the declaration is to be all embracing it ought to cover section 166 as well, because that would be one way in which the LEA could be relieved pro tanto. 152. MR JUSTICE COLLINS: You mean to add---- 153. MR HARRIS: Sub-paragraph 4 to that effect. 154. MR JUSTICE COLLINS: By all means add that in if you think it appropriate. 155. MR HARRIS: My Lord, the only other representation we have to make is we are very anxious that there should be no unnecessary slippage of time in this matter and there is the potential for protracted negotiation here. Would your Lordship think it appropriate to specify the earliest date that the matter can come back before your Lordship if agreement has not been reached? 156. MR JUSTICE COLLINS: Ms MacPherson, is there any reason why this matter should not be settled by the end of January? I think you have to have it ready to settle by then, otherwise you are running into difficulties for the next financial year, aren't you? 157. MS MACPHERSON: My Lord, I think that is right. There is an education committee meeting on 30th January. 158. MR JUSTICE COLLINS: If I say it must be decided by the end of the first week in February; if I put that as the date upon which agreement must be reached and, if it has not, then liberty to apply. In fact I am in London the whole of next term, so there is no problem about it coming back to me. Would that be sensible, Mr Harris, if I say by the end of the first week in February, whatever the date is, Friday the whatever of February? 159. MR HARRIS: Yes. Would your Lordship think it appropriate to direct that there should be a transcript of the submissions today. I am concerned that your Lordship's, as it were, exhortation to the authority should be a matter of record. 160. MR JUSTICE COLLINS: It will be transcribed, it always is, and it will be part of the official transcript. 161. MR HARRIS: That it should be available if this matter comes back. 162. MR JUSTICE COLLINS: No, I think the parties can get the transcript in the normal way if they wish to have it and if you want them to have it you can make sure that they do, but it will be transcribed. 163. MS MACPHERSON: My Lord, one further matter, if I may. My learned friend did ask your Lordship to make one alteration to your Lordship's judgment and I wondered if I can draw your Lordship's attention to page 17, the second paragraph. Your Lordship will see that the number £500,000 appears twice. The first one should be 1.5 million. 164. MR JUSTICE COLLINS: The Education Committee, 1.5 million. I am sorry, I missed that. 165. MS MACPHERSON: And then the £500,000 is correct. 166. MR JUSTICE COLLINS: Those are round figures obviously. 167. MS MACPHERSON: Yes. My Lord, while I am on my feet, may I seek leave to appeal to the Court of Appeal? Mr Harris has already conceded on another time that this was a matter of public interest. 168. MR HARRIS: My Lord, it is undoubtedly a matter of public interest. The problem is from the school's point of view that an appeal is going to be a potentially protracted process and the funding problem will continue indefinitely. If the LEA is prepared to provide the funding, as it were, on a without prejudice basis it may well be that there would be greater force in the submission. 169. MS MACPHERSON: My Lord, I am instructed that my clients would be prepared to do that, but my clients do feel that this is a point of principle that affects a great many authorities and one that we ought to press on with. 170. MR JUSTICE COLLINS: I think that I am prepared to give you leave but on terms that so long as the appeal is not heard you have to apply this judgment so far as funding to the school is concerned. What I am getting at is that you do not have a stay on execution, if you put it in private law terms, that you must fund the school, although of course it will be on the basis, and the school must appreciate it is on the basis, I suppose, that if you win the appeal there may have to be some renegotiation somewhere. 171. MS MACPHERSON: I understand, my Lord, thank you. 172. MR JUSTICE COLLINS: On that basis, yes, you can have leave to appeal. 173. MS MACPHERSON: Thank you very much, my Lord. 174. MR JUSTICE COLLINS: Would you draw up an order between you that covers everything we have dealt with, including the declaration, costs and the leave to appeal? 175. MS MACPHERSON: I did not quite catch what Mr Harris said about section 166. 176. MR JUSTICE COLLINS: He said he wanted to add it for the sake of completeness. Is that not covered by the third party anyway? 177. MR HARRIS: It is to do with district health authorities. 178. MR JUSTICE COLLINS: Third party is enough, isn't it? 179. MR HARRIS: It does not quite come within 3. 180. MR JUSTICE COLLINS: He simply wants to add in that one way of you carrying out your duty is by the section 166 route if you can persuade a district health authority or a local authority. There is no harm in it. 181. MS MACPHERSON: I am not sure it is applicable. 182. MR JUSTICE COLLINS: I am not sure if it is necessary, Mr Harris, and if your opponent does not want it then we do not need it. The declaration is of course a declaration in the context of this case; it is not a declaration for all the world. 183. MS MACPHERSON: We would be happy without it. 184. MR JUSTICE COLLINS: Then I do not see any reason to put it in. 185. MR HARRIS: I was seeking to assist the LEA. 186. MR JUSTICE COLLINS: If they do not want your assistance then I do not think you need press it. ------------ © 1996 Crown Copyright BAILII: Copyright Policy | Disclaimers | Privacy Policy | Feedback | Donate to BAILII URL: https://www.bailii.org/ew/cases/EWHC/Admin/1996/342.html