Case No: CO/5364/2001
Neutral Citation Number: [2002] EWHC 504 (Admin) 
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
ADMINISTRATIVE COURT

Royal Courts of Justice
Strand, London, WC2A 2LL

Tuesday 26 March 2002

B e f o r e :

MR JUSTICE NEWMAN
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	THE QUEEN on the application of IPSEA LIMITED
	Claimant	
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	THE SECRETARY OF STATE FOR EDUCATION AND SCHOOLS	Defendant	

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040,  Fax No:  020 7831 8838
Official Shorthand Writers to the Court)
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David Wolfe (instructed by Levenes, Solicitors for the Claimant)
Timothy Mould (instructed by the Treasury Solicitor for the Defendant)

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Judgment
As Approved by the Court

Crown Copyright ©

Mr Justice Newman : 

1.	This is a renewed application for permission to apply for judicial review in connection with guidance issued by the Secretary of State, contained in a document called “The SEN Toolkit” which was issued in November 2001 to take effect in January 2002 and which is to be read in conjunction with the SEN Code of Practice (2001).  Ipsea Limited are a national charity active in supporting children with special educational needs.  No point has been taken in connection with their standing, but the nature of the challenge, being to guidance in a  non-statutory document, plainly gives rise to an issue as to whether, on the assumption that the guidance contains an erroneous view of the law, the court should act where it is not suggested such guidance has given rise to any illegality in respect of any child.  (See Gillick and the West Norfolk and Wisbech Area Health Authority v The Department of Health and Social Security [1986] l AC 112 and R v The Secretary of State for Health ex parte Pfizer Limited [1999] Lloyds Med LR 289.
2.	Having such considerations in mind, at the close of argument I indicated to counsel that, even if an arguable ground for illegality in connection with the document and an arguable basis for the court exercising its powers to intervene could be made out, having regard to the promptitude with which the document had been brought to the attention of the court, and the status of the claimant, there was little more that could be achieved on a successful application for judicial review which could not be achieved by a judgment on this renewed application for permission.  As this judgment will indicate, there are points which can be made about the meaning and potential effect of the document and it seems to me that  practical assistance can be given, freed from the need to consider all legal issues, now that the matter is before the court, which should serve to avoid any departure from the law in respect of any child.
The Statutory Framework and the Existing Code of Practice (2001)
3.	The law relating to children with special educational needs is principally set out in part 4 of the Education Act l996 (“the Act”).  By Section 3l3 within that part, the Secretary of State may make a Code of Practice to which schools, local educational authorities and the Special Educational Needs Tribunal must have regard in discharging their relevant functions.  The Code is subject to parliamentary approval.  The first Code of Practice drawn up under the Act was issued in l993 and after a course of events to which I  shall shortly refer it was replaced from l January 2002 by the 2001 Code, it having been approved by Parliament on 23 October 2001 and issued in November 2001.  This application relates to those parts of the Code of Practice, and by necessity, the sections of the Education Act l996 dealing with the content of statements of Special Educational Needs.  The starting point in this regard, and in its material part, is Section 324 subsections 2 and 3 of the Education Act l996, which provide:
(2)	“the statement [of special educational needs] shall be in such form and contain such information as may be prescribed.
(3)	In particular, the statement shall,
(a)	give details of the authority’s assessment of the child’s special educational needs, and 
(b)	specify the special educational provision to be made for the purpose of meeting those needs …”
Section 302(2) of the l996 Act, provides that special educational provision means:
“(a)	in relation to a child who has attained the age of two, educational provision which is additional to, or otherwise different from, the educational provision made generally for the children of his age in schools maintained by the local education authority (other than special schools) …; and
(b)     in relation to a child under that age, educational provision of any kind.”
4.	Regulation 13 of the Special Educational Needs Regulations 1994 has prescribed for the form and content of the statement.  Regulation 13 states:
“A statement of a child’s special educational needs made under section [324(1)] shall be in a form substantially corresponding to that set out in part B of the Schedule, shall contain the information therein specified and shall be dated and authenticated by the signature of a duly authorised officer of the authority concerned.”
5.	Schedule B to the Regulations states under part 3 of special educational provision, a heading:  “Educational Provision to meet Needs and Objectives”.  The form requires as follows:
“Here specify a special educational provision which the authority consider appropriate to meet the needs specified in part 2 and to meet the objective specified in this part, and in particular shall specify –
(a)	any appropriate facilities and equipment, staffing arrangements and curriculum …”
These provisions are now found in the Education (Special Educational Needs) (England)(Consolidation) Regulations 2001.
6.	The text of the 1993 Code of Practice stated at paragraph 4.28 that:
“The provisions set out in this subsection [that is part 3(b) of the statement] should normally be specific, detailed and quantified (in terms, for example, of hours of ancillary or specialist teaching support) although there will be cases where some flexibility should be retained in order to meet the changing special educational needs of the children concerned.”
	This paragraph received judicial consideration by Laws J (as he then was) in R v Clarke and Somerset County Council [1998] ELR 129, 136G.   He stated:
	“Lastly, I should refer to the Secretary of State’s Code of Practice where in part 3 towards the end of paragraph 4.2.8 this appears:
“In my judgment a requirement that the help to be given should be specified in a statement in terms of hours per week is not an absolute and universal precondition of the legality of any statement.  One can appreciate the force of the comments in the guidance.  There will be some cases where flexibility should be retained.  However, it is plain that the Statute requires a very high degree of specificity.  The main legislation itself (and I refer to section 324(3)(a) and (b) requires the statement to give details of the child’s special educational needs and to specify the provisions to be made.  
	The terms of form B in the Regulation, part of which I have read, are plainly mandatory and it seems to me that in very many cases it will not be possible to fulfil the requirement to specify the special educational provision considered appropriate to meet the child’s needs, including specification of staffing arrangements and curriculum, unless hours per week are set out.  The real question, as it seems to me, in relation to any particular statement, is whether it is so specific and so clear as to leave no room for doubt as to what has been decided is necessary in the individual case.   Very often the specification of hours per week will no doubt be necessary and there will be a need for that to be done.”
	In a judgment which I recently delivered in the case of E v Flintshire County Council and Special Educational Needs Tribunal (CO/4976/2001, 21 February 2002) I had occasion to consider an appeal based upon a lack of specificity in relation to the educational provision for a child.  I repeat what I then observed to be the legislative purpose, namely to require focused and express consideration to be given to the specific needs of a child and then to provide for them in terms which will further and effect its enforceability as a provision.  
7.	In a witness statement of Mr John Wright, the Chief Executive of Ipsea Limited, the point is well made, namely that problems and litigation are caused by vague statements.  With that in mind, when in July 2000 the draft of the proposed new Code of Practice was released for consultation, the claimant was concerned that it omitted the guidance on the duty to specify provision which had been in paragraph 4.2.8 of the l993 Code.    The claimant expressed significant concern about the move away from specificity and quantification and received a response from the Secretary of State on July 27, 2000, which in its material part stated:
“Our earlier consultation and preparation work on the draft revised Code revealed a concern that the existing code focused too heavily on quantification and that this was limiting the ability of the education service to act flexibly in the interests of each child.  The proposed changes would, in our view, better encourage sensible flexibility.”
Having regard to the terms of Laws J’s judgment it might be said that the Code focused on quantification no more than any particular case required there to be quantification.  (See “the real question” as described by the judge.)
8.	Despite detailed representations from Ipsea Limited the draft Code of Practice which was laid before Parliament under section 314(3) of the Education Act l996 on 20 June 2001, for approval of each House of Parliament, contained the following:
“8.36	A statement should specify clearly the provision necessary to meet the needs of the child.  It should detail appropriate provision to meet each identified need and quantify provision as necessary.  It would be helpful to the child’s parents and teachers if the provision in this subsection is set out in the same order as the description of needs in part 2.”
“8.37	LEAs must make decisions about which actions and decisions are appropriate for each pupil on an individual basis.  This can only be done by careful assessment of the pupil’s difficulties and consideration of the educational setting in which they may be educated.  There is a need for flexibility to ensure that the provision meets the needs of the individual child, and that it is responsive to their changing needs.  In detailing appropriate provision for a child, there may often be a need to express it in terms of hours, equipment or personnel.  It would always be necessary for LEAs to monitor, with the school or other setting, the child’s progress towards identified outcomes, however the provision is described.  LEAs must not, in any circumstances, have blanket policies not to quantify provision.”
9.	Among the various points of criticism in relation to the draft I regard the following as having merit:
(1)	As Laws J made plain, quantification is but an aspect of  specificity, not a free standing consideration.  Where quantification is not required it is because the needs of the child do not require that degree of specificity.
(2)	The words “ … detail appropriate provision … and quantify provision as necessary … “ withdraw attention from specificity (which the Act and Regulations require) and focus attention on the freedom not to quantify by reference to a broad concept of necessity, detached from the specific statutory obligations.
Against the above it can be said that paragraph 8.37 of the draft goes some way to redressing the position (see the last sentence in particular) but it can also be said that it presents flexibility “first” and quantification “next”.  It could be read as promoting flexibility as an approach to be followed save where there is a need to express in terms of hours, equipment or personnel, whereas the concept of specificity promotes the value of specificity unless the changing needs of the child dictate otherwise.
10.	When the Code of Practice was laid before the House, there was specific debate, prompted to a significant degree, no doubt, by representations made by the claimant to Members of Parliament. It is not necessary to rehearse the debate, but in what was regarded as an unexpected decision the Government withdrew the proposed new Code and announced that changes would be made to the passages on specification and quantification.  There was no further consultation but the revised version of the Code which was unveiled in October and approved by both houses, repeated word for word the guidance from the 1994 Code of Practice.  
11.	The suggestion made by the claimant is that the Secretary of State having failed to successfully achieve amendment to the Code of Practice in Parliament, has by the issue of the “SEN Toolkit” sought to achieve by an unconstitutional back door that which he could not achieve in the House.  I say nothing about that which I regard as having no direct relevance to what I have to consider.
12.	There are three paragraphs in Section 7 of the Toolkit, namely paragraphs 30, 38 and 39, which are relied upon as constituting a dilution of the requirements provided for in the Act, specified in the Regulations and supported by the Code of Practice.  Paragraph 30 of the Toolkit states:
“LEAs are required to be specific about provision.  Provision should normally be quantified, for example in terms of hours and frequency of support, but there are times when some flexibility needs to be retained either to meet the changing needs of the child or to allow for appropriate and alternative responses from within the school to reflect particular class or school arrangements.  If the provision is not quantified, the detail must still be such that it is clear to parents and professionals what will be delivered and by what mechanism.”
It can be said that insofar as the paragraph states “ … Provision should normally be quantified ….” it is promoting quantification first, but the principal point made by Mr Wolfe on behalf of the claimant, is that whereas the Code of Practice provides that there will be cases where some flexibility should be retained, thus obviating the need for provision to be quantified, it lawfully recognises that such flexibility can occur only when it is necessary to meet the changing educational needs of the child.  Paragraph 30 of the Toolkit specifically invites the application of flexibility when it is not to meet the changing needs of the child, but “to allow for appropriate and alternative responses from within the school to reflect particular class or school arrangements”.  Counsel on behalf of the Secretary of State disavowed any intention to encourage flexibility in any case where it was not required for the changing needs of the child.   It was stated that the words in question should be regarded as reflecting, as a matter of policy, that there could and should be flexibility within schools, which in turn reflected particular class or school arrangements, all of which would nevertheless meet the needs of the child but which too rigid prescription in the statement could prevent.  I am bound to say that if that was the intention underlying paragraph 30, then the use of the words “either to meet” and  “or to allow” were not necessary.  Further, as drafted, it seems to me that an LEA might well be led to a conclusion that flexibility, and therefore lack of specificity or quantification, would be permissible solely on the grounds that “class or school arrangements” called for it.  For example, because resource consequences could give rise to particular class or school arrangements being altered within the year before the next review in connection with the child took place.  I am bound to say, although I have heard no detailed argument, that if in any particular case a statement of special educational needs lacked specificity and quantification where the changing needs of the child did not require it, reliance by an LEA or the Tribunal upon this particular paragraph of the Toolkit would be likely to be of little avail.  
13.	Section 324(3)(b) constitutes a mandatory requirement that the statement shall “specify the special educational provision to be made for the purpose of meeting those needs”, namely the needs of the child.  In my judgment there are likely to be real difficulties in a case where the provision specified in the statement is not driven by reference to the needs of the child, but by reference to considerations of particular “class or school arrangements”.  It could be said that since the qualification for or character of the responses from a school are by definition “appropriate and alternative”, they can only be so regarded if they meet the requirement that the total provision meets the needs of the child.  That said, I regard the paragraph as confusing and apt to give rise to error.  Since it does not reflect the intention of the Secretary of State it would be highly desirable for attention to be given to it so that its purpose is clear.
Paragraph 38 of Toolkit
14.	Paragraph 38 of Toolkit states:
“LEAs will always need to specify provision but they will need to consider whether there are times when it would be inappropriate to provide further detail or quantify provision when a child is placed in a special school or specially resourced provision in a mainstream school which is funded by the LEA but provided by the school.  In such settings there is a wide range of availability of specialist help and facilities on site with specific support and equipment provided by the school and teaching and learning programmes can be varied day to day as required by the individual pupil.  Such resources can therefore be managed flexibly to meet the child’s changing needs.  There will be times when a particular pupil regularly requires resources additional to those generally available and these will need to be set out in more detail.”
15.	Mr Wolfe submits in relation to this paragraph that it represents another example of an attempt to promote a lack of specificity in relation to the provision, for reasons other than the changing needs of the child.  He submits that in relation to a child in a special school there is the same need for specificity as there is in relation to a child being provided for in mainstream schools.  The Secretary of State submits that there can be no legal objection to a special school, as named, comprising the provision in any particular case.  I see the force of the submission of the Secretary of State and I am bound to say that I am not presently persuaded that the terms of paragraph 38 give rise to the particular risk of illegality to which Mr Wolfe referred.  The paragraph emphasizes that the resources at any particular special school can be “managed flexibly to meet the child’s changing needs”.  If, as Mr Wolfe suggested, the named school changed and withdrew a particular provision it would be a question of fact as to whether it gave rise to a deprivation of provision which the child’s needs required.  Further, short of the withdrawal of a particular provision in the school which is likely to be controversial,  flexibility for each child at the school within the provision available at the school, would seem in principle desirable, as it might suit the needs of a particular child.
16.	Mr Wolfe also submits that the words “ …. Resources additional to those generally available” point to an error of law as to the benchmark in special schools.  I am not impressed by the argument.  I do not regard it as capable of leading to a reduced level of provision in special schools or special provision in mainstream schools.
Paragraph 39

17.	Paragraph 39 provides:
“Schools and LEAs will need to make decisions about the interventions and provisions appropriate to each pupil on an individual basis.  This can sometimes only be done by careful assessment of the pupil’s difficulties in the school and classroom context.  It may therefore sometimes be inappropriate to quantify in advance the action that might be taken in terms of how much individual tuition a pupil might need, or how many hours of in class support may be necessary, or what size of teaching group may be most appropriate.
After argument, Mr Wolfe was minded to accept that the implementation of paragraph 39 may or may not give rise to provision being made or provided for in a way which breaches the Code.  He accepts that according to the needs of a child leaving matters open may be permissible.  In the circumstances it calls for no further comment.
Conclusion
18.	It emerged as common ground that the principle of flexibility was available for an LEA and a Tribunal so long as the decision not to specify or quantify was based upon an assessment that such a course was to meet the changing needs of the child.  The frontispiece  to Section 7 of the “SEN Toolkit” states:
“This section will be of particular relevance to LEAs and should be read in conjunction with Chapter 8 of the SEN Code of Practice.”
There is of course a risk that the practical guidance contained in the Toolkit might be utilised by an LEA without reference to the terms of the Code of Practice.  That is not what is intended and plainly LEAs should follow the direction contained in the Toolkit and read it in conjunction with the Code of Practice.  LEAs can be taken to know that the practical guidance in the Toolkit cannot take precedence over the terms of the Act, the Regulations and the Code of Practice.  Plainly they would be well advised to take the course, in the event of any inconsistency becoming apparent to them, of following the Act, the Regulations and the Code.  Consideration could be given to including guidance on this line in the Toolkit.
19.	Having regard to the present purpose to which I believe this judgment can be put I have concluded that the application for permission to apply for judicial review should be dismissed.