Law report: 8 October 1997; Cost of providing home tuition was a relevant factor

A local education authority was entitled to take account of its resources when deciding what was the provision of suitable education under section 298 of the Education Act 1993.

Regina v East Sussex County Council, ex parte Tandy; Court of Appeal (Lord Justice Staughton, Lord Justice Ward and Lord Justice Mummery) 31 July 1997

The Court of Appeal (Lord Justice Staughton dissenting) allowed the appeal of the local education authority against the decision of Mr Justice Keene, who had allowed the applicant's application for judicial review of the authority's decision that she should receive only three hours' home tuition a week.

The applicant, aged 15, suffered from myalgic encephalomyelitis (ME), and had difficulty attending school. The local education authority, having issued a statement of special educational needs, had provided her with five hours' per week home tuition. However, in the academic year 1996/97, because of cuts in government funding, the authority took a policy decision to introduce a new norm for home tuition, reducing the hours from five to three per week. When they considered the applicant's particular case they decided that her home tuition should be reduced to three hours per week.

Nigel Pleming QC and Rabinder Singh (Sharpe Pritchard for Council Solicitor) for the local education authority; Tim Kerr and Andrew Sharland (Bates Wells & Braithwaite) for the applicant.

Lord Justice Ward said that it was submitted on the applicant's behalf that as there had been no apparent change in her needs, the reduction in hours of home tuition was dictated predominantly if not solely by the reduction in the education authority's resources. The question was whether resources were a relevant factor to take into account in the application of section 298 of the Education Act 1993 (now section 19 of the 1996 Act). Section 298 provided:

(1) Each Local Education Authority shall make arrangements for the provision of suitable full-time or part-time education at school or otherwise than at school, for those children of compulsory age who, by reason of illness, exclusion from school or otherwise, may not for any period receive suitable education unless such arrangements are made for them . . . (7) In this section "suitable education", in relation to a child or young person, means sufficient education suitable to his age, ability and aptitude and to any special educational needs he may have.

The authority's duty was to make arrangements. The reference to "children" in section 298(1) indicated that the arrangements had to be made with an eye to meeting the needs of all the sick children to whom the authority was beholden. If a spread of arrangements had to be made for a wide range of sick children with different individual needs, then, to borrow from the the words of Lord Nicholls in R v Gloucestershire County Council, ex p Barry and anor (Law Report 9 April 1997), the spread of arrangements:

cannot sensibly be assessed without having some regard to the cost of providing them. A person's need for a particular type or level of service cannot be decided in a vacuum from which all considerations of cost have been expelled.

Whilst it was true that the criteria defining suitability related to the individual child, the education had not only to be suitable to those needs but also efficient. The qualification of efficiency was broader than individual needs, and broad enough to encompass the need to shape the education to the resources available.

The flaw in the applicant's approach was that it proceeded from the lode- star of five hours' tuition a week as if that were a provision set in stone to meet her needs. That degree of personal service could not, however, be provided. It was simply too expensive. In reduced times, all had to suffer. That might not be a satisfactory position from the applicant's point of view, but the remedy was political, not legal.

Section 298 was wide enough to justify the local authority balancing the individual requirements against the cost of making those arrangements. There was nothing illegal in setting a policy which provided a norm. The authority had not erred in taking resources into account.

- Kate O'Hanlon, Barrister