DM & Anor v Essex County Council

Factual and Procedural Background

This is a statutory appeal against a decision of the Special Educational Needs Tribunal issued on 19th September 2002. The appellants' daughter, referred to as "G", is a young child diagnosed with autistic spectrum disorder, exhibiting severely impaired speech, language development, and delayed social communication skills. The appellants appealed against a Statement of Special Educational Needs made by the Local Education Authority (LEA) for their daughter, which the tribunal rejected. The appeal challenges the tribunal's decision on the grounds of legal error.

The tribunal considered two alternative special needs education programmes for G: the Essex "Good Beginnings" programme, as specified by the LEA, and the "Lovaas" programme preferred by the appellants and funded privately by them. Both programmes were accepted by the tribunal as capable of meeting G's needs.

The appellants contend that the Essex programme unlawfully requires parental participation in delivering the educational provision, which they are unwilling to undertake, thereby constituting a failure by the LEA to meet its statutory duty. The LEA argues that parental involvement is limited to cooperation and support, not direct delivery of the programme.

Legal Issues Presented

1. Whether the LEA, by specifying the Essex "Good Beginnings" programme that requires parental participation in delivery, has lawfully fulfilled its statutory duty under section 324 of the Education Act 1996 to arrange appropriate special educational provision for the child.
2. Whether the tribunal erred in law in approving the Essex programme despite the appellants' refusal to participate in its delivery.

Arguments of the Parties

Appellants' Arguments

• The Essex programme imposes an unlawful obligation on parents to directly deliver educational provision, which breaches the LEA's statutory duty to arrange appropriate provision.
• Parental refusal to participate means the LEA has failed to meet its duty because the programme depends on parental delivery.
• The Lovaas programme, preferred by the appellants and privately funded, better serves their child's needs.

Defendant's Arguments

• The Essex programme requires parental support and cooperation but does not delegate the LEA's legal responsibility to parents for delivering the educational provision.
• Parents are not expected to act as teachers or therapists but to provide a supportive role tailored to their circumstances.
• Allowing parents to enforce their educational preference by refusing cooperation would undermine the statutory scheme.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
R v London Borough of Harrow, ex parte M [1997] ELR 62	The LEA's duty under equivalent statutory provision is personal and non-delegable; the LEA must itself arrange the provision.	The court applied this principle to conclude that parental non-participation meant the LEA had not discharged its duty if the programme depended on parents delivering the provision.
FJ v Cambridgeshire County Council [2002] EWHC Admin 2391	The LEA cannot impose on parents an obligation to deliver special educational provision; only objectively suitable separate parental arrangements relieve the LEA of its duty.	The court relied on this to determine that the Essex programme unlawfully imposed an obligation on parents to implement the programme.

Court's Reasoning and Analysis

The court examined the statutory framework under section 324 of the Education Act 1996, focusing on the LEA's duty to arrange special educational provision. The court considered authoritative judicial statements confirming that this duty is personal to the LEA and not delegable to parents.

The court scrutinised the Essex programme documentation and found multiple references indicating that parents were required not only to cooperate but to actively implement and deliver the educational programme. Examples included key workers supporting parents to "develop and deliver" the programme, and parents being described as "active partners" in teaching their child.

Although the LEA argued that parental involvement was limited to support and cooperation, the court found that the evidence demonstrated a parental obligation to deliver educational provision, which is unlawful without parental consent. The court acknowledged the appellants' strong motivation and willingness to fund an alternative programme but emphasised that the statutory scheme does not permit parents to enforce their preference by refusing cooperation.

Ultimately, the court concluded that the Essex programme unlawfully imposed a delivery obligation on the parents and that the LEA had failed to fulfil its statutory duty. Consequently, the tribunal erred in law by approving the Essex programme.

Holding and Implications

The court QUASHED the tribunal's decision and REMITTED the matter back to the tribunal for reconsideration.

The direct effect of this decision is that the LEA must reconsider the appropriate special educational provision for the child without imposing an unlawful obligation on the parents to deliver the programme. No broader precedent beyond the immediate parties was established.