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COUNCIL UNDER NO OBLIGATION TO FUND 'TAILOR MADE' COURSE

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court ref no: CO/1253/96 ...
court ref no: CO/1253/96

Neither Bradford MDC nor the Further Education Funding Council have any obligation to pay for a severely handicapped 20-year-old to go on a residential education course which his parents hoped would 'enrich his life'.

In London's high court Mr Justice Jowitt upheld the FEFC's view that Robert Parkinson's disabilities are so grave that there is currently no reasonable likelihood that he would benefit educationally from the £30,000-a-year course.

And he confirmed the legality of Bradford MDC's stance that it has no duty, nor even the power under the 1994 Education Act, to pay Robert's tuition fees at Pengwern College, in Clwyd.

But Robert's barrister, John Friel, told the judge that all may not be lost as the District Council is now actively considering making a one-off 'discretionary' grant to enable him to attend the college.

If no grant is forthcoming, mental handicap charity, Mencap, was willing to support his case all the way to the European Court of Human Rights, he added.

Mr Justice Jowitt said Robert is partially sighted, cannot walk and can only communicate in the most rudimentary way by using his right hand to tap a switch.

'His hearing is probably normal but he cannot speak and does not appear to understand speech unless to a limited extent when it is addressed to him by those whom he knows.

'He is totally dependent upon others. At the route of his mental problem is the fact that his brain has grown and developed slowly.'

But the judge said there were indications that he might be able to develop further and of 'an emerging readiness and ability on his part to engage in wider communication if the means of developing that communication can be found and provided.

'He has an intellectual potential which is probably increasing which has yet to be realised, though what its extent is simply cannot be assessed.'

He said it was clear that without educational help to develop his communication skills, the realisation of his potential would be impossible.

'A little progress would be valuable to Robert to improve his quality of life.

'Robert's parents were anxious to find a setting in which any potential for improved communication might be realised. A place was found at Pengwern.

'The fees at the college are, however, substantial and exceed £30,000-a-year'.

The court heard Robert's parents - an insurance broker and a nurse - simply do not have the means to fund the course themselves.

The judge said the council was prepared to pay Robert's residential fees at the college - amounting to about a third of the total or £237-a-week.

The local authority asked the FEFC to fund the balance, but the judge said the latter 'concluded that it had neither the duty nor the power in law to provide funding'.

And he upheld the FEFC's view that there was currently 'no reasonable likelihood' that the course at Pengwern would bring Robert sufficient educational improvement to enable him to go on and do other courses.

'Was there material on which the FEFC was entitled to reach the conclusion it did? I have no hesitation in reaching the conclusion that there was'.

The progress Robert might make at Pengwern was an 'unknown quantity', but the FEFC had said that it would keep his case under review to assess whether or not he could take a successful part in formal education.

The judge said Robert remained 'at a very early stage of cognitive development'.

'He does not make eye contact or look at objects or pictures. He does not imitate or focus on a perceived task and needs to have his hands moved by another in order for him to participate in any way.

'Robert does not therefore have any consistent responses to stimuli. This would suggest that it is currently impossible for him to follow a course whose primary purpose is progression to another course.

'All the challenges to the FEFC's decision having failed it follows that the challenge by way of judicial review to its decision not to fund the place at Pengwern must be dismissed'.

Turning to the position of Bradford MDC, the judge said the issue was whether it was 'under a statutory duty to fund an educational course at Pengwern'.

He upheld the local authority's view that it had no duty either under the Education Act or community care legislation to fund Robert's tuition fees.

As Robert was over compulsory school leaving age, Bradford was under no obligation to fund a course which was 'tailor made to his individual needs'.

'It follows that Bradford neither has the duty nor the power under Section 41 of the 1994 (Education) Act to fund a course at Pengwern'.

It was now for the local authority to decide whether or not to make a one-off 'discretionary' grant to Robert to enable him to go on the course.

Mr Justice Jowitt refused leave to appeal against his decision, but Mr Friel told him that, if a grant was not forthcoming, Robert's case would probably proceed to the European Court of Human Rights.

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