Litigating for special education

Roger Pearson looks at a mother's fight to make her local authority provide the appropriate education for her autistic sons.

Education for all is a main plank of the policies of many political parties, but for some parents getting the sort of education they think their children need is an uphill struggle. Turning to the courts can result in local authorities being ordered to make provisions for children with special needs but, as a recent High Court case shows, litigation does not guarantee success.

The case in question centres on two autistic children from west London whose mother challenged the London Borough of Ealing's failure to name an appropriate school for her sons. The boys have not been to school since 1996, and while the fight over what provision should be made for their schooling has raged, they are said to have "regressed" educationally.

Teacher Stern Selby partner Jack Rabinowicz, who represented the two boys, says: "The latest ruling shows that there is a large hole in the Education Act as far as what should happen to a child where a local authority and the parents cannot agree on the school the child should go to."

The case was one of two challenges to the policies of education authorities that failed. The other involved a Solihull mother who was fighting for the right for her five-year-old autistic son to be sent to the world-famous Higashi School in Boston, Massachusetts.

In the case of a fourth child, a four-year-old boy, Mr Justice Dyson ruled that Solihull Metropolitan Borough Council had, in the individual circumstances of the case, acted unlawfully in refusing to provide funding for him to attend the Higashi School.

But he made it clear, in dismissing the other two challenges, that the Education Act 1996 does not impose a duty on an education authority or a special educational needs tribunal "to name a school or a special school in every case".

"It is a matter for the judgement of those bodies to decide whether or not to name the school," he said.

That ruling, which is expected to be appealed as early as September, will be welcomed by cash-pressed education authorities. But it is a decision which will come as a bitter disappointment for many parents of children with special education needs.

Rabinowicz says: "Basically what the judge has found is that there is no obligation when a local authority and a special educational needs tribunal are dealing with a child's statement of needs to agree on a school.

"The local authority and tribunal do not have to resolve the issue. This is a decision which cannot help the relationship between local authorities and parents and the reputation of the tribunals. And it cannot be in the best interests of the children involved who are in severe need of support.

He adds: "This is a problem which the Government have been aware of since the Act came into force four years ago. It left this hole which it hoped someone would resolve but nobody has."

As far as the scale of the problem is concerned, Rabinowicz says it is already significant and is growing.

While he does not have statistics for the number of children that need special educational facilities, he points out that appeals to the special educational needs tribunal are currently running at a rate of around 300 each year and says that, in his view, the tribunal is taking on the same huge number of cases that the industrial tribunals did 20 years ago.