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Local authority wins appeal over maintaining SEN statements after 19

A father is seeking leave to appeal to the Supreme Court after failing in his bid to force a local authority to continue paying for the education of his daughter, who has Down’s Syndrome, beyond the age of 19.

The case of Essex CC v Williams [2011] EWCA Civ concerned MW, who was born in 1989 and has a functional age of about 10 years or less. MW has had a statement of SEN since 1992. She attended mainstream school until she was 16 years old, when she transferred to a school that specialises in pupils with severe and complex learning difficulties aged from two to 19.

In 2008 Essex wrote to her parents specifying they would cease to maintain her statement of SEN from July 2008. Since then, the parents and the local authority have been in a protracted legal battle over the decision.

Judge Jacobs in the Upper Tribunal took the view that because every pupil was entitled to remain in secondary school until they had finished the particular course on which they were embarked prior to reaching 19 years, it followed that MW (as she was on a course) was entitled to complete it even though she was 19 years old.

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He concluded that MW remained subject to a statement and as such should still be regarded as a ‘child’ within an expansive definition of the same. The judge therefore concluded that a statement did not automatically lapse at 19 years.

Essex appealed, arguing that the definition of a ‘child’ in Part IV of the Act was clear and should have been construed in accordance with ordinary language. Counsel for MW submitted that Judge Jacobs had been correct in his analysis.

However, the Court of Appeal has now found in Essex’s favour, ruling that individuals over the age of 19 could not be considered to be a ‘child’ within the meaning of s. 312(5) of the Education Act 1996.

As a result local authorities do not have to maintain statements of SEN for them when they are over that age.

Giving the unanimous judgment of the court, Mrs Justice Baron said: “I am clear that although MW may require continuing education, the obligation to provide it must be seen in the context of the local authority having a continuing ‘responsibility’ for her not merely as a registered pupil, but as a child in accordance with the extended criteria under s. 312(5) including that part which requires her to be under 19 years.

“It is not right to seek to submit ...that one part of the criteria can simply be ignored because MW is still undertaking the course which she commenced prior to reaching the specified cut off age. It is clear that Part IV is a distinct and separate part of the Act. Parliament deliberately provided a very specific definition within that Part for a child with special needs.”

This therefore overrode the wording in s. 2(5) of the Act, something specifically acknowledged in government guidance.

The judge went on to say that for Essex to be required to ‘maintain’ MW’s statement of SEN now that she was over 19 years would not fit within the scheme set out in Part IV which contained a very specific (albeit not exhaustive) definition of ‘child’.

“To seek to override that by application of other sections within the Act would fly in the face of what Parliament specified and clearly intended,” she said.

The judge added that she was “wholly un-persuaded that the ordinary meaning can or, indeed, should be finessed away”.

She said: “The educational courses which special needs students undertake are often ill defined in terms of length and I consider that Parliament must have intended to mark the distinction between special needs students and others to avoid courses continuing, potentially, for many years.”

Mrs Justice Baron said the legislation did not envisage an indeterminate lengthening of secondary education for this group. “Indeed there is specific provision for what is to happen when such a child ceases to be under 19 years and moves from secondary education to further education,” she pointed out.

The judge added that government guidance provided a discretionary upper limit which extended the possible provision to the end of the academic year but that this did not affect the construction of the statute. “It merely provides a humane discretion to enable a pupil to complete that year,” she said.

Mrs Justice Baron said she had come to the “firm conclusion” that s. 312(5) was absolutely clear and should be interpreted in accordance with common usage. “Most people would consider it absurd to refer to a young adult of 20 years or more as a ‘child’,” she said.

“To do would be an impermissible corruption of language that is wholly unnecessary. It follows that the local authority were not bound to maintain the statement of SEN because they had ceased to be responsible for her.”

The case “fell squarely” within paragraph 9(2) of Schedule 27 and as such the local authority was not required to make a formal decision which was reviewable.

The Court of Appeal's decision will be welcomed by local authorities as there are more than 230,000 children in England and Wales with statements of SEN.

An Essex County Council spokeswoman said: “While we are sympathetic to the parents of the child in question we are glad that the judgment by the court makes it clear that special educational needs funding should cease when a child reaches 19 and, in the eyes of the law, becomes an adult. The law currently states that a statement of special educational needs can only by maintained for children for whom the local authority is responsible. In Essex alone there are more than 6,000 children with an SEN statement.

“To extend this provision would have had far reaching budgetary implications, as well as raising safeguarding concerns around teaching adults alongside children. There is a separate mechanism for young people over the age of 19 to be funded in their education placements via the Young People’s Learning Agency. That remains available to these parents.”

Fiona Scolding of Hardwicke represented Essex County Council in this case.

Philip Hoult

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