LAW REPORT: Gifted child did not have special needs

Regina v Secretary of State for Education, ex parte C. Queen's Bench Division (Mr Justice Schiemann).

8 February 1995.

A child might have difficulty in learning without necessarily having "special educational needs" as defined in section 156 of the Education Act 1993; and if the difficulty could be coped with in an ordinary maintained school there was no need to make "special educational provision" under the Act.

Mr Justice Schiemann refused an application, brought by the child's mother, for judicial review of the Education Secretary's decision on 27 July 1994, that the child did not have special educational needs as defined in section 156 of the Education Act 1993. The mother claimed the child was gifted but had short-term auditory memory problems and that although her high intelligence enabled her to overcome those difficulties, she still needed special schooling to maximise her potential.

The Secretary of State, in an earlier decision in September 1993, declining to direct the LEA to reconsider its assessment, had proceeded on the basis that she accepted the child had special educational needs. The earlier decision had been quashed by consent for procedural irregularity in a previous judicial review hearing. One of the grounds of the present application was the inconsistency between the two decisions.

Antony White (Teacher Stern & Selby) for the applicant; Philip Havers (Treasury Solicitor) for the respondent.

MR JUSTICE SCHIEMANN rejected the challenge based on inconsistency. In a borderline case, it was not irrational even for the same person to make different assessments of the same facts at different times. As to the 1993 Act, three points should be noted.(1) Not every difficulty in learning was a "learning difficulty" as defined in section 156. (2) A child only had special educational needs if both (i) he had a learning difficulty and (ii) it called for educational provision additional to or different from that generally provided. (3) The definition of both learning difficulty in section 156(2)(b) and special educational provision in section 156(4)(a) involved reference to the provision made for other children of the same age, so the decision-maker applied similar concepts at different parts of the decision- making process. The applicant argued that the Secretary of State failed to accept the established proposition of law, that the fact that a child with high intelligence was able to compensate to a level above that achieved by most children of the same age did not mean it did not have special educational needs: see R v Hampshire EA, ex p J (1985) 84 LGR 547.But in his Lordship's judgment, though it might not be clear from her decision letter, the Secretary of State did accept that proposition. She also accepted that the child had various difficulties in learning, but considered these could be coped with in an ordinary maintained school. She was entitled to reach those judgments and they evinced noerror of law.

Paul Magrath, Barrister