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Neutral Citation Number:	2010 UKUT 74 AAC
Reported Number:
File Number:	S 3094 2009
Appellant:	Essex County Council [2011] EWCA Civ 1315
Respondent:	AW
Judge/Commissioner:	Judge E. Jacobs
Date Of Decision:	08/03/2010
Date Added:	31/03/2010
Main Category:	Tribunal procedure and practice (including UT)
Main Subcategory:	tribunal jurisdiction
Secondary Category:	Special educational needs
Secondary Subcategory:	Discontinuing a statement
Notes:	Reported as [2012] AACR 24. (UT (AAC) decision reported as [2010] AACR 35.) Special educational needs – child for whom local education authority responsible – continuation of statement beyond 19th birthday MW had a statement of her special educational needs and became 19 in August 2008. The local education authority exercised its discretion to permit her to remain at her school beyond her 19th birthday but in March 2009 it wrote to her parents saying that it would cease to maintain her statement on 31 August 2009. The First-tier Tribunal struck out the father’s appeal on the basis that it had no jurisdiction because MW was no longer a child. In Part IV of the Education Act 1996, which deals specifically with special educational needs, “child” is defined as including any person who has not attained the age of 19 and is a registered pupil at a school. Schedule 27 to the Act, paragraph 9(2), allows a local education authority to cease to maintain a statement without notice of decision and a right of appeal where a child has ceased to be a child for whom it is responsible. The father appealed to the Upper Tribunal. The Upper Tribunal held, citing R (Hill) v Bedfordshire County Council [2008] EWCA Civ 661; [2008] ELR 660, that the First-tier Tribunal had had jurisdiction to hear the appeal under paragraph 11(2)(b) of Schedule 27, which provides a right of appeal where an authority determines to cease to maintain a statement, and that the appellant’s daughter fell within the definition of a “child” in section 312(5), because, although she was over the age of 19 years, she was a registered pupil at a secondary school and pursuant to section 2(5) of the Act she was entitled to remain in her school until she had completed her course (which had no specific end date). The local education authority appealed to the Court of Appeal, citing R (B) v Islington [2010] EWHC 2539 (Admin). Held, allowing the appeal, that: 1. there was a crucial distinction between Hill and the present case in that in Hill the “child” came within the first limb in section 312(5) because he was under the age of 19 years, though he had ceased to be registered as a pupil at a school for the time being through no fault of his own (paragraph 34); 2. section 312(5) does not contain a definition of “child” per se, rather it provides extended criteria for the purposes of Part IV only, and as such extends the definition of “child” to include those who are over 16 years and who have not yet reached 19 years. It was clear that Part IV was a distinct and separate part of the Act and that Parliament deliberately provided a very specific “definition” within that Part for a child with special needs. There was nothing irrational in drawing a distinction between children with special needs and others and it must be taken that Parliament intended the definition in Part IV to override the wording in section 2(5) (paragraphs 35 to 37); 3. the conclusion in Islington was correct: section 312(5) is absolutely clear and should be interpreted in accordance with common usage. To construe the legislation in any other way would lead to absurdity. To refer to a young adult of 20 years or more as a “child” would be an impermissible corruption of language that is wholly unnecessary (paragraphs 38 to 43); 4. it followed that the local authority had ceased to be responsible for MW and therefore was not bound to maintain the statement of special educational needs in respect of her. As the case fell squarely within paragraph 9(2) of Schedule 27 the local authority was not required to make a formal decision which was reviewable (paragraph 43). Decision reported as [2010] AACR 35
Decision(s) to Download:	[2010] AACR 35 bv.doc [2010] AACR 35 bvdraftamend.doc [2012] AACR 24bv.doc [2012] AACR 24ws.doc