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Court of Appeal decides on authorities not maintaining Statements of SEN to children over 19

The Court of Appeal this morning handed down judgement in the case of Essex CC v Williams [2011] EWCA Civ. This case examined whether or not those over the age of 19 continued to meet the criteria set out under the Education Act 1996 to receive a Statement of SEN.  

In a comprehensive judgment, Mrs. Justice Baron (with whom Lord Justice Maurice Kay and Lord Justice Moses agreed) determined that those over the age of 19 could not be considered to be a “child” within the meaning given in s312(5) of the Education Act 1996 and so authorities did not have to maintain Statements of SEN for children over that age.   

Mrs. Justice Baron determined that Part IV provided a separate code for children who had Statements of SEN, and so the fact that s2(5) of the EA 1996 provides for certain circumstances where those who are over 19 but not with Statements of SEN does not mean that this applies to those with Statements of SEN.   At paragraph 37, she says:

“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 continuining “responsibility” for her not merely as a registered pupil, but as a child in accordance with the extended criteria under s312(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.“ 

The Court rejected that argument that because someone was undertaking a course before the age of 19, they had a right under s2(5) of the EA 1996 as a registered pupil to continue to receive a Statement whilst finishing that course.   The Court found that to try and find any other meaning would be an impermissible corruption of language that is wholly unnecessary (paragraph 43). 

This therefore means that the statutory responsibility for educating those with Statements of SEN ends when a child is 19 years old, but the court did emphasise the discretion which is present within the Code of Practice which permits those who have reached such an age to finish that year of their academic education.   The Court described this as a humane discretion to enable a pupil to complete that year.   The court also held that in these circumstances, the authority could use the mechanism under para 9(2) of  Schedule 27 of the EA 1996 to “lapse” the Statement rather than requiring a Statement to be ceased to be maintained in accordance with paragraph 11 of Schedule 27 of the EA 1996.  

Mr. Williams is seeking to appeal to the Supreme Court. 

Fiona Scolding represented Essex County Council in this case.   Should you have any queries please do not hesitate to contact us,  Fiona is available to discuss its ramifications with interested parties.

To read the judgment in full please click here.

This case was also reported in the Local Government Lawyer. Please click here to read a copy of the report.