Educational needs come first

Roger Pearson looks at the decision in the Beth Tandy case, which should protect all those who need to be educated at home.The decision of Mr Justice Keene at the High Court on 23 April was without doubt a major victory for the educational needs of 15-year-old Beth Tandy.

The judge held that East Sussex County Council had acted unlawfully in putting financial savings before her educational needs and in cutting the level of her home tuition on that basis. However, while on a personal level the victory won for Beth Tandy through action taken by her mother against the council was of major importance, its wider implications are of even greater significance.

According to the National Association for the Education of Sick Children, there are up to 100,000 children throughout the UK who may need home education at any one time. The High Court decision is a major triumph for these children as well.

Unless overturned on appeal it must serve as a warning sign to local authorities throughout the land, says William Garnett, partner at London-based Bates Wells & Braithwaite, who fought the case on behalf of Beth. He says it has laid down clear guidelines for local authorities everywhere making it plain that they are not entitled to plead poverty and cut back on home tuition, when it comes to providing suitable educational needs for those such as Beth.

She has been off school for a year because of chronic fatigue syndrome. The legal battle was started on her behalf after the council cut the five hours a week home tuition she had been receiving to three, claiming that it could no longer afford to fund five hours.

The cut stemmed from a 3m shortfall in the education authority's 1996-97 budget. Beth's parents argued, however, that the cut would not give her realistic chance of successfully completing her GCSEs in English language, literature and maths and that it was unlawful because it would not provide her with "suitable" education under the provisions of the Education Act 1993.

The judge agreed and branded the council's stance as "irrational", saying that it had been unlawfully and powerfully influenced by the need to make budget cuts. The most important aspect of the judge's decision was on the question of suitability. He said the 1993 Act imposed a duty on education authorities "to make arrangements for the provision of suitable education for children, who, by reason of illness or exclusion from school or other reasons", needed such arrangements to be made. Local authorities, in deciding what amounted to "suitable education" were not entitled to take their financial resources directly into account.

Victory in the case was all the sweeter for Garnett and his team after having to make a last minute but important change of tack in their legal argument. Initially they had intended to back their case with the Court of Appeal decision in R v Gloucestershire County Council ex parte Barry. However, six weeks before their hearing, the House of Lords overturned the Appeal Court decision in Barry, ruling that availability of resources could be taken into account by local authorities when meeting needs under the provisions of the Chronically Sick and Disabled Persons Act 1970. The result was that rather than being used as support for their case, the Barry case, at the last minute, had to be distinguished from their case.

"The ruling in our case," says Garnett, "makes it clear that if they have not got the money to meet the suitable needs of those such as Beth Tandy then they have got to find it, if necessary by raising the rates."