Getting LEAs to co-operate

The judgement in this case applies to all families with children with ME who need their Local Education Authority (LEA) to make arrangements for their education when they cannot attend school full-time. It is important that all families should know the detail in this judgement as some LEAs are ignoring its findings - which is illegal.

The History

In 1996, David and Hilary Tandy attended a meeting with the LEA to review their daughter’s education provision. Beth was in her final GCSE year and receiving five hours home tuition a week in three GCSE subjects which she was due to take at home the following summer.

There had been much publicity about East County Council (ESCC) carrying out a cost cutting exercise and, at the review meeting, David and Hilary were told that Beth’s tuition hours would be cut from five hours a week to just two. This was, they were told, to save money.

Following a complaint to the Director of Education, Beth’s hours were raised to three but still fell short of what was necessary. The family put in a formal complaint to the Secretary of State through the Department for Children, Schools and Families (DCSF) but despite the efforts of the team there, no reply was forthcoming from ESCC. David and Hilary felt there was no choice but to seek legal advice.

They were recommended to a ‘heavy weight’ London solicitor, specialising in judicial review, and learnt to their dismay that a judicial review had to have papers registered with the court within three months of the final decision by the LEA. Parents considering this route, please note! They had already wasted two of those months waiting for ESCC’s reply to the Secretary of State. However, the solicitor pulled out all the stops and the papers were registered one day ahead of the deadline. Meanwhile the LEA agreed to maintain Beth’s hours at five a week pending the Court’s judgement.

The Legal Argument

Section 298 of the Education Act 1993 (now Section 19 of Education Act 1996) sets out the duty of an LEA to ‘make arrangements for the provision of suitable…. education for those who, by reason of illness… may not for any period receive suitable education unless such arrangements are made for them’.

The central question was whether it was lawful to adopt a policy which took into account financial resources, or whether what constituted a suitable education was to be determined by other educational factors separate from resources available.

Early in 1997, the case went to the High Court which found in favour of the Tandy family but ESCC lodged an appeal. The Court of Appeal found in favour of the LEA and so the case moved on to the House of Lords. To support the Tandy family, Sir Michael Belloff QC was engaged and the case was heard by five Law Lords and a judgement given on 20 May 1998.

The Judgement

All five Law Lords unanimously found in favour of the Tandy family. The judgement made important points of law and cannot be ignored by LEAs. The Law Lords said:

• LEAs cannot avoid their legal duty under, what is now, Section 19 of the Education Act 1996 to provide arrangements for a suitable education if a child is too ill to attend full-time school.
• LEAs have a legal duty to provide a suitable education.
• The suitable education is owed to the needs of the sick child as an individual and not as a group. In other words, LEAs cannot say, for example, they only give three hours tuition to children at home as this is a blanket policy, does not consider the need of the individual child and therefore goes against the House of Lords judgment.
• MOST IMPORTANT: Money cannot be taken into account when deciding what is a suitable education for sick children. Therefore, location and type of tuition, the number of hours and teaching staff all need to be decided on without thought to financial resources. Only if there are two methods of providing an equally suitable education can the cheaper option be chosen.

Since the judgement in the House of Lords, guidelines have been issued by the DCSF on how LEAs should deal with their duty under Section 19. All parents and guardians can receive a copy by ringing the DCSF on 0870 000 2288 and asking for ‘Access to education for children and young people with Medical Needs’ Ref: 0732/2001 or from the teachernet website 'Access to education for children and young people with Medical Needs'.

For more information please contact AYME's helpline on 08451 23 23 89 10am to 2pm Monday to Friday, who will put you in touch with our education advisor. For a full copy of the judgement go to http://www.parliament.uk click on House of Lords and then Judgements. The document is under 1998 and then alphabetically ‘In re T (A Minor)’ 20 May 1998. For a quick reference to the law affecting young people with ME please see ‘Education Law and ME’.

Article last edited on Wednesday 29th July 2009                          Printable Version