Who gets the final say in deciding when a statement of SEN comes to an end? David Ruebain, Chris Barnett and David Wolfe unravel a complex new case

Many young people, including those with special educational needs, leave school at the age of 16, the earliest age that they may do so. However, young people with special educational needs would often benefit from staying on in a formal school environment beyond that age. Ensuring that this happens — and that a suitable school place is obtained, with the necessary support in place — is not always straightforward. For children who, before reaching 16, have statements of special educational needs, the position can give rise to complex legal questions. This article will explain the implications of a recent case in which a 17-year-old pupil took his case for continuing SEN provision to SENDIST after the local authority told him that his statement had lapsed.

GREATER PROTECTION

A child with a statement has, of course, a greater level of protection than a child whose provision is funded in some other way. Although local authorities have powers to fund post-16 education other than through a statement, most such provision is funded by the Learning and Skills Council. If statement were allowed to disappear without the possibility of appeal at the age of 16, a child could be left without funding while issues with the Learning and Skills Council were determined. The Learning and Skills Council does not, in any event, have the same duties as a local authority, and there is no independent supervisory tribunal to order the council to fund placements or provision.

WHO IS A ‘CHILD’?

Usually, when the law refers to ‘children’ it means people up to the age of 16. As only ‘children’ can have statements of special educational needs, if any young person over 16 is to have a statement, s/he needs to be counted as a ‘child’ for the purposes of the law. It is clear that anyone over the age of 19 cannot be a ‘child’. But the question of whether a young person of 16-18 is in law a ‘child’ has not been easy to resolve.

What the law says
The Education Act 1996 sets out the general position: ‘In this Act, unless the context otherwise requires … child means a person who is not over compulsory school age. (section 579).

For the purposes of Part 4 of the Act, which deals with special educational needs, the meaning of  ‘child’ is extended to include any person who has not reached 19 and who is a registered pupil at a school (section 312(5)).

Unregistered 16-19-year-olds

That leaves unresolved the status of a person between the age of 16 and 19 who is not, for whatever reason, a registered pupil at a school. In particular, difficulties arise where s/he is not registered at a school, but their parents want him or her to be registered.

CLARIFICATION

The recent High Court decision in Wolverhampton City Council v SENDIST and Smith (2007) (where Levenes Solicitors and David Wolfe were instructed by Mrs Smith) has provided some clarification. The case looks at:

  • local authority duties towards young people with special educational needs from 16-18
  • the powers of SENDIST in relation to young people with special educational needs from 16-18

THE CASE OF ANDREW SMITH

The case arose as a statutory appeal by Wolverhampton, the local authority, against a decision on review by SENDIST that it (sendist) did have jurisdiction to hear Mrs Smith’s appeal against the cessation of her son’s statement of special educational needs. Mrs Smith’s son, Andrew, has Asperger’s Syndrome. He was statemented by the local authority from a young age, and at the time of the appeal to the tribunal was 17. When he turned 16, he was not in school — he was receiving ‘education otherwise’ at home, via an internet-based education provider.

Beyond compulsory school age

Although Andrew ceased to be of compulsory school age in July 2005, the local authority continued to maintain his statement until June 2006 (when the internet provider’s input ceased). Mrs Smith had informed the local authority, before the end of June, that she wanted Andrew to attend a school placement from then on. The local authority, however, told her in July that it considered the statement to have lapsed, and that it therefore had no further obligations to maintain or amend it. The local authority also told Mrs Smith that she could not appeal against this decision.

Ceased or lapsed?

Nonetheless, Mrs Smith lodged an appeal with SENDIST, which decided first to consider whether it had jurisdiction to hear her appeal. It decided that it did, and upheld this decision on review. The local authority then appealed, claiming that Andrew was not a ‘child’ for whom the local authority was ‘responsible’ — and that Mrs Smith therefore had no right to appeal against the cessation of his statement, as it had not been ceased but had lapsed. 

THE DECISION: ‘CHILDREN’

In his decision, Mr Justice Irwin first considered the question of whether Andrew was a ‘child’ within the meaning of the Education Act 1996. The judge relied on, and extended, the decision of Mr Justice Turner in S v Essex County Council and SENDIST (in which Levenes Solicitors and David Wolfe also acted for the parents). The judge held that the term ‘child’ was, in the context of provision for special educational needs under the Education Act 1996, not limited to those of compulsory school age and those in school, but extended ‘at least as far as any individual under the age of 19 in respect of whom the local authority does or might owe obligations’ under the Act. So the first important point this judgment resolves is that, effectively, any young person under the age of 19 may be a ‘child’ for the purposes of obtaining, or keeping, a statement of special educational needs, so long as his or her parents want him or her to be placed in a school. In the light of the decision, there should no longer be any issue that a young person under 19 is not eligible for provision as a child. Of course, that is not the end of the matter, and was not in Andrew’s case.

‘RESPONSIBILITY’

The next question that the judge considered was whether the local authority was ‘responsible’ for Andrew. In the context of special educational needs provision, the term responsible has a particular legal meaning, and a local authority is not ‘responsible’ for a young person over 16 who is not in school — even if s/he is a ‘child’.

Continuing obligations

As Andrew did not fall into any of those categories, the judge found that the local authority was not ‘responsible’ for him. Crucially, however, the judge agreed that this was not a bar to an appeal, since once a child had a statement, the local authority could continue to have obligations to the child, based on the statement, whether or not it remained legally ‘responsible’ for him or her. This was because being ‘responsible’ is a precondition to the local authority undertaking a statutory assessment but not to the making (following a statutory assessment) and maintaining of a statement. So, a statement, and the obligations that arise from it (including the obligation to arrange the special educational provision it specifies) do not simply cease when ‘responsibility’ ceases. The issue then is not whether the local authority remains ‘responsible’, but how a statement comes to an end, and what appeal rights arise when it does.

A RIGHT TO APPEAL?

The final critical step in the judge’s reasoning was therefore to reject Wolverhampton’s contention that Andrew’s statement had simply ‘lapsed’, or that it had otherwise disappeared without any right for Mrs Smith to appeal — even though she wished to contend to the tribunal that Andrew should attend a school (which, if it were agreed, would mean that the local authority would become ‘responsible’ for him again). The judge found that the local authority’s decision after the end of Andrew’s internet programme was, as a matter of fact, a decision to cease to maintain his statement. But could Mrs Smith appeal against this decision? If so, what powers would the tribunal have?

The law in question

Whether or not Mrs Smith could appeal, and the powers the tribunal would have, turned on the implications of paragraph 9 of schedule 27 of the Education Act 1996. Paragraph 9 says that a local authority may not cease to maintain a statement except in accordance with a specified cessation process, which, in particular, provides for a right of appeal against the cessation decision. But paragraph 9 does not apply where a local authority ceases to maintain a statement for a child for whom it is no longer responsible.

‘No longer responsible’

The case of Andrew Smith, in the light of the judge’s earlier findings, was indeed a decision to cease to maintain a statement for a ‘child’ for whom the local authority was no longer ‘responsible’. Paragraph 9 did not apply, so the local authority did not have to cease to maintain the statement in accordance with the specified procedure. But did that mean there was no right of appeal against the decision in question? The judge held that there was a right of appeal. He considered that the fact that the local authority was no longer required to use the specified process for ceasing the statement did not mean that it was prevented from doing so. On the facts of the case, the judge considered that even though the local authority had not been required to do so, it had in fact decided to cease to maintain Andrew’s statement in accordance with the specified procedure — and that, in those circumstances, the right of appeal arose.

Policy considerations

The judge also recognised that there were policy considerations that supported the conclusion that Mrs Smith should have a right to appeal. Where, as here, the question is not so much whether the local authority is ‘responsible’ (or whether the young person is a ‘child’ within the meaning of the Act) but whether it should be (which in effect comes down to the question of whether s/he should attend a school or not), the proper body for determining that is the SENDIST. That result was consistent, the judge concluded, with a proper understanding of the relevant provisions of the code of practice. And, as he put it: ‘It seems to me obviously desirable, if the legislation permits, that disputes as to qualifying criteria can be taken to the tribunal for resolution, rather than to court.’  

He therefore concluded that Mrs Smith had indeed got a right of appeal to the tribunal against the decision to cease Andrew’s statement, even though, at the time, the local authority was no longer ‘responsible’ for Andrew under section 321of the Education Act 1996. What the law saysThe position is governed by section 321(3) of the Education Act 1996, which states that:
‘For the purposes of this Part a local education authority are responsible for a child if he is in their area and: (a)  he is a registered pupil at a maintained school or maintained nursery school (b)  education is provided for him at a school which is not a maintained school or maintained nursery school but is so provided at the expense of the authority (c)  he does not come within paragraph (a) or (b) above but is a registered pupil at a school and has been brought to the authority’s attention as having (or probably having) special educational needs, or

(d)  he is not a registered pupil at a school but is not under the age of two or over compulsory school age and has been brought to their attention as having (or probably having) special educational needs.’

What is the practical effect?

Effectively, it would mean that even where paragraph 9 does not require a local authority to apply the specified cessation procedure, the local authority cannot escape from the conclusion that it has determined to cease the statement, and that a right of appeal has arisen. It accordingly remains to be seen whether, in the light of the decision, there will remain any scope for local authorities to argue that a statement has ended without a right of appeal arising at all. 

SENDIST GETS THE FINAL SAY

The effect of this decision is that local authorities will be likely to find the court (and the tribunal) unwilling to deny parents a right of appeal in such situations, where the central question is: What post-16 provision is suitable for the child? The court will, rightly in our view, consider that the tribunal, a specialist body, is the proper venue for resolving such issues, and if a local authority considers that a child’s needs can be met other than in school, it should be able to substantiate that to the tribunal. The decision of the court in this case is accordingly to be welcomed, as confirming that SENDIST should, in most cases, be given the final say in relation to when statements of special educational needs should come to an end.  

David Ruebain and Chris Barnett are partner and paralegal at Levenes Solicitors. David Wolfe is a barrister at Matrix Chambers FIND OUT MORE

Wolverhampton City Council v SENDIST and Smith [2007] EWHC 1117 (Admin) S v Essex County Council and SENDIST [2000] ELR 718

The SEN and disability tribunal website includes a detailed section on procedure, as well as forms, guidance and a decisions database

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