English Legal System: Analysis of Burridge v. London Borough of Harrow and Others [2000]

        This decision was appealed against to the Court of Appeal, heard on 10th March 1998 by Simon Brown, Otton LJJ and Sir Christoper Straughton ([1998] ELR 351). The court held the appeal, concluding that there was “no express provision confining the resources referred to in schedule 27 to those of the sending authority”. The court remitted the case for a further hearing by the Special Educational Needs Tribunal, which occurred in January 1999. The decision of this court was appealed against by the London Borough of Harrow, and was referred to the House of Lords for consideration, which occurred in January 2000, and is the case for consideration in this essay.

        Meanwhile, the second SENT found that even when considering the resources of both the sending LEA and the receiving LEA, the provision of the place at Grangewood would still accrue such costs that it would be incompatible with the efficient use of resources. The mother of ‘F’ appealed to the High Court (Queen’s Bench Division) against this decision, heard by Latham J on 5th August 1999 ([2000] ELR 1), reliant upon the argument that it was incorrect as a matter of Law for the tribunal to have considered transport costs when making their decision. Latham J held that the SENT was justified in its decision to include transport costs, as the mother’s poor past record of transporting ‘F’ to school resulted in the LEA feeling responsible for providing means of transport for ‘F’ to ensure a high regularity of attendance.

Ratio

        The ratio descendi of a case is “…any rule of law expressly or impliedly treated by the judge as a necessary step in reaching his conclusion” (Smith et al, 2002, p480). It is therefore necessary to separate the findings of material fact from the principles of law (Ward. R, 1998, p64) stated in a judgement in order to distil the ratio.

        In Burridge v London Borough of Harrow and others ([2000] ELR 109) there are no dissenting judgements, and therefore the ratio is located within the speech of Lord Slynn.  

        It is necessary to remove the findings of fact from the speech, for example Lord Slynn identifies the absence of a provision equivalent to section 411(5) of the Education Act 1996 for children for whom a statement of Special Educational Needs has been made. This is a matter of fact, and therefore cannot be part of the ratio.

        Reference is made to R v Shadow Education Committee of Greenwich London Borough Council, Ex parte The Governors of John Ball Primary School [1989] (L.G.R 589) in order to distinguish the current case from it, and to further illuminate Lord Slynn’s statement that there is an intended difference between educational provision for those with special educational needs and those without. This is an example of explanation of reasoning (Smith et al, 2002), and therefore can be disregarded when trying to formulate the ratio of the case. A further such example can be found where Lord Slynn explains that the legislation could not possibly intend for the resources of multiple LEAs to be taken into account as it would “…place a very difficult task on the local education authority”. This is clearly his reasoning for making the assertion.

        Some elements of the ratio are encased in facts and reasoning, for example, it is a matter of fact that ‘in dealing with special schools the authority must observe the specific provisions of paragraph 3(3) of schedule 27’, and that ‘a preference may be expressed but it is subject to the qualifications set out in paragraph 3(3)’, as this is set out within the Education Act itself. The matter in dispute is which resources are deemed to be considered when satisfying these qualifications. In finding that it is only the sending authority’s resources that fall to be considered, Lord Slynn reasons that the differences between the provision for special schools and ‘other’ schools must be intentional, otherwise it would not have been necessary for the Education Act to set out different qualifying criteria – it cannot be considered as a mistake on the part of Parliament.

        Therefore I consider the ratio to be as follows:

        “It seems to me relevant in considering…whose resources are referred to in paragraph 3(3) of Schedule 27 to bear in mind that the scheme for special educational needs provision is for children for whom the local education authority is responsible. Those are children, inter alia,who are ‘in their area’. It is on the parents of such children that the notice of intended assessment and the statement of special educational needs is to be serve.This points in my view to the resources concerned being those of the responsible local education authority” Lord Slynn [2000].

Statutory Interpretation

        The main issue in this case regards the interpretation of The Education Act 1996 Schedule 27, paragraph 3(3), as to whether the Act intends for the resources considered to be those of just the sending LEA, or to include those of the receiving LEA also.

It is said that the primary task of the judiciary in interpreting legislation is to “ascertain the intention of parliament” in creating the Act, (Ward. R, 1998, p36) or to determine “the general purpose that was to be achieved by the statute” (Smith et al, 2002, p410). There are several approaches to carrying out this role, ranging from giving words of a statute their ‘everyday’ meaning (‘The Literal rule’), to avoiding absurdity by giving words alternative meanings (‘Purposive approach’ or the ‘Golden Rule’), to attempting to identify the ‘mischief’ that parliament was trying to legislate against (‘The Mischief Rule’).

The ‘Literal approach’ is generally the most favourable method of interpretation as it ensures that words of a statute are to be given their plain and everyday meaning. Under the literal approach if the language is clear and explicit, the court must give effect to it ‘for in that case the words of the statute speak the intention of the legislature’ (Tindal CJ, cited Ward. R, 1998, p39). Therefore, where possible, the intention of Parliament must be found in the ordinary and natural meanings of the words used (Ward. R, 1998).

Lord Slynn uses this approach throughout his interpretation of the current case. In particular, it is evident that he is using the everyday meanings of the words of the statute to find the intention of Parliament in creating separate schemes for ‘special’ schools and ‘other’ schools. He concluded that Parliament “…had drawn a distinction”, and therefore rules applicable to placement at ‘other’ schools were not relevant to this case.

A principle of the literal rule is that the statute must be read as a whole, as “words in isolation may import meanings different from that which they bear in conjunction” (Ward. R, 1998, p42). This approach is used by Lord Slynn in determining the way in which the term ‘resources’ is to be construed in Schedule 27 paragraph 3(3) of the Education Act 1996. In examining the use of the term throughout the statute, and within the Code of Practise issued in accordance with the Act (in particular paragraphs 4.44 and 4.56), Lord Slynn was able to conclude that the resources in question are those of the ‘responsible’ LEA.

The purposive approach, in its narrowest form, allows for a situation where there may be more than one way to give common effect to a word or phrase contained in legislation, for example, “…where a statute permits of two or more literal interpretations the court must adopt that interpretation which produces the least absurd result” (Ward. R, 1998, p40). Lord Slynn applies this approach to the phrase ‘responsible LEA’, which could be read as either the authority who would be ‘responsible’ for providing education, or the authority ‘responsible’ for paying for the education, or indeed could be construed as including both of these. Lord Slynn considered that this must be intended to refer to the “…authority which pays”, as this was the most likely, and therefore the least absurd, objective of Parliament when examining other sections of the statute.

It was not necessary for Lord Slynn to interpret any of the legislation in light of the mischief it was implemented to avoid, as all matters of law were sufficiently dealt with using the literal and purposive approaches.

Policy Issues

        Consideration was given to the differing funding arrangements between ‘special schools’ and ‘other’ schools, and this difference was eventually used as evidence of the intention to create two different schemes. Whilst mainstream schools are funded dependant on how many pupils the school can attract, ‘special’ schools are funded on the basis of how many pupils it is expected they will have to make provision for (per Lord Straughton, Court of Appeal [1998] ELR 109). Therefore by leaving Whittlesea ‘F’ would be leaving a vacant place which Harrow would be required to fund in addition to paying Hillingdon for a space at Grangewood. The consequence of this is that Harrow would effectively be funding two school spaces for ‘F’ simultaneously.

        A further policy issue given attention was the implications of creating a system whereby the funds of LEAs generally could be taken into account when examining whether the provision of a school place would be contrary to paragraph 3(3). Lord Slynn considered that this would “…place a very difficult task on the local education authority…if such an exercise had been intended, it is more likely that it would have been imposed on the Secretary of State”. He furthered this issue in advancing the argument that for the tribunal to have to look more generally at resources of LEAs would “...open up great difficulties”.

        In conclusion it could be suggested that policy issues heavily influenced the outcome of the case, as to allow the resources of both LEAs to be taken into account would dramatically reduce the control that an LEA has over its own funds. By considering both sets of resources, the additional ‘cost’ of sending ‘F’ to Grangewood became viewed as being much less significant, thus decreasing the chances of ‘F’s placement at the school being deemed ‘incompatible with the efficient use of resources’. However there would still have been a considerable deficit in the funds available in Harrow to spend as the LEA saw to be appropriate. It was therefore key for the court to avoid giving parental preference increased priority where the unnecessary use of local education authority funds were concerned.

Bibliography

Books

• Slapper, G. et al (1999), The English Legal System. London:Cavendish
• Smith, S. et al (2002), Modern English Legal System. London: Sweet and Maxwell
• Ward, R. (1998), English Legal System. London: Butterworths

Cases

• B v London Borough of Harrow and The Special Educational Needs Tribunal, Court of Appeal [1998] ELR 351, 20 March 1998.
• R v London Borough of Harrow ex parte B, Queen’s Bench Division [1999] ELR 495, 26 May 1999.
• B v London Borough of Harrow and Nicholson, Queen’s Bench Division [2000], ELR 1, 5 August 1999.
• B v London Borough of Harrow and others, House of Lords [2000], ELR 109, 27 January 2000.