C/OO/3796
Neutral Citation Number: [2001] EWCA Civ 287
IN THE SUPREME COURT OF JUDICATURE
IN THE COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)
(MR JUSTICE SCOTT BAKER)

								Royal Courts of Justice
								Strand
								London WC2A 2LL

								Thursday 22 February 2001

B e f o r e:

LORD JUSTICE DYSON

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T H E   Q U E E N
(On the application of JACOB YOUNGSON a child
by Sarah Youngson his Litigation Friend)
Applicant

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BIRMINGHAM CITY COUNCIL
Respondent
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(Computer Aided Transcript of the Palantype Notes of
Smith Bernal Reporting Limited, 190 Fleet Street,
London EC4A 2AG
Tel: 020 7421 4040  Fax: 020 7831 8838
Official Shorthand Writers to the Court)
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MR DE MELLO and MRS E KELLY (Instructed by Messrs Gamble Morris Hills, Birmingham, B30 3AS) appeared on behalf of the Applicant.

MRS J MCAFFERTY (Noting Brief) (Instructed by Birmingham City Council Legal Services, Birmingham, B2 5EN) appeared on behalf of the Respondent.
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J U D G M E N T
1.	LORD JUSTICE DYSON: Jacob Youngson is 13 years of age and has ambitions to be a professional ballet dancer. He plainly has considerable talent. He is a junior associate with the Royal Ballet School and currently attends the Elmhurst Ballet School in Surrey. His parents applied to the local educational authority (Birmingham City Council) for a grant to enable him to attend a full‑time vocational dance course at Elmhurst. That application was rejected on 10 February 1999. In the refusal letter the authority referred to its policy which sets out the criteria that are applied in considering whether or not to grant an award in a case such as this. The relevant parts of the policy are in these terms: 
“The Sub-Committee will only grant an award on review if there are within Sub-Committee's opinion exceptional circumstances which mean that a departure from the Council's general policy is warranted. Accordingly the Sub-Committee will only consider:
(i) Evidence of severe financial hardship
Applicant must demonstrate that they and their family are unable to fund the course of study. 
(ii)Evidence that alternative sources of funding have been pursued, including loans and earnings from employment
Applicant must demonstrate that they have pursued alternative sources of funding (including loans) and can demonstrate that it is not possible or appropriate to obtain adequate funding from other sources.
(iii) Evidence that alternative forms of study which will achieve the same qualification or career aim have been investigated and there are compelling reasons why such forms of study are not available or appropriate.
(iv) Other exceptional circumstances.”
2.	Jacob's parents sought a review of the refusal, but on review the application was rejected by letter of 28 July 1999. 
3.	On 3 March 2000 the applicant was granted permission to apply for judicial review of the decision. The authority reconsidered its decision and maintained its refusal in a letter of 26 April 2000. In that letter the authority said that the subcommittee had considered the financial circumstances of the family and were satisfied that severe financial hardship had been demonstrated. It accepted that the information provided at a meeting on the Dance Track Project and the Royal Ballet School Junior Associate Programme had subsequently been found to be incomplete. After detailed consideration of the application, the subcommittee was not persuaded by the information presented that the exceptional circumstances required for a grant had been made out. 
4.	The reasons for the dismissal of the application were stated in the following terms: 
“(a) The Sub-Committee considered that you had not demonstrated that all appropriate alternative sources of funding had been exhausted, in particular the availability of funding from the preferred residential setting.
(b) The Sub-Committee considered that you had not demonstrated that the expected outcome for Jacob from the preferred setting, in terms of academic and dance qualifications, could not be achieved whilst he attended a local mainstream school.” 
5.	The reference to “the preferred setting” was a reference to the Elmhurst Ballet School. By an amendment to the judicial review application, that decision of the 26 April 2000 became the focus of the challenge. On 11 December 2000 Scott Baker J dismissed the application and refused permission to appeal. Mr De Mello, who appears on behalf of the applicant, now renews the application for permission to appeal. 
6.	The authority's power to make awards is derived from section 518 of the Education Act 1996 which provides that:
“Regulations shall empower local education authorities, for the purpose of enabling persons to take advantage without hardship to themselves or their parents of any educational facilities available to them- 
....
(b) to pay the whole or any part of the fees and expenses payable in respect of children attending schools at which fees are payable.”
7.	The relevant regulations are the Scholarship and Other Benefits Regulations 1977. Regulation 4 provides:
“Subject to Regulation 6, every authority may for the purpose of enabling pupils to take advantage without hardship to themselves or their parents of any educational facilities available to them ....
(d) pay the whole or any part of the tuition fees, boarding or lodging fees and expenses payable in respect of children attending schools at which fees are payable.”
8.	Regulation 6 provides:
“No payment shall be made under these Regulations unless -
(a) it is required to be made in order to prevent or relieve financial hardship;
(b) except in the case of a payment under Regulation 4(e)(ii), the amount of the payment is related to the means of the parents of the pupil;
(c) the authority is satisfied that the course of education to which the payment relates is suitable to the pupil.”
9.	Jacob did, however, go to Elmhurst school in September 1999 and has been there ever since. His parents have managed to fund his attendance at that school by borrowing substantial sums of money. They are currently in debt to the tune of £8,000. The school is expensive; the total annual package costs in excess of £13,000. It is a residential school which provides a wide curriculum in addition to the normal academic studies. This includes ballet and dance tuition. Jacob's parents would like him to stay there until he is 16 and study for his Royal Academy dance qualifications as well as qualifications from the Imperial Society of Teachers of Dancing. It is the opinion of his parents that nothing comparable can be obtained in the West Midlands; in particular, by attending a mainstream school in Birmingham and undertaking private tuition, Jacob's aspirations would be inadequately satisfied and the quality of the tuition and training would not be as good. 
10.	Mr De Mello advances a number of grounds of appeal. His first point is that the policy to which I have referred is ultra vires the regulations. He submits that, if the criteria stated in regulation 6 are met, then the effect of regulation 4 is that a grant must be made, or that there is a presumption that a grant will be made. He submits that the authority's policy introduces very severe additional criteria which, in practical terms, make it very difficult indeed for an applicant to obtain a discretionary grant. He submits that this is incompatible with the plain purpose of regulation 4. In essence, therefore, provided that the regulation 6 criteria are satisfied, a grant should in almost all cases be awarded. 
11.	Scott Baker J said that he was unpersuaded that the policy was ultra vires. He said that the authority was exercising a power and was entitled to take into account various considerations such as those identified in the policy, provided that the purpose of the power was not frustrated. I agree. In my judgment, regulation 4 gives the authority a broad discretion whether to pay towards the fees at fee paying schools, but, before this discretion can be exercised, the criteria of regulation 6 have to be satisfied. The authority is only entitled to exercise its discretion to grant an award if its purpose is to enable pupils to take advantage without hardship to themselves or parents of any educational facilities available to them. But it does not follow that the authority must grant an award if the pupil could not, by reason of his or her financial circumstances, avail himself or herself of the educational facilities without that assistance. 
12.	I turn to the second ground which concerns the rationality of the conclusion on 26 April 2000 that the applicant had not shown that there were compelling reasons why alternative forms of dance training were not available. There was before the subcommittee evidence of alternative forms of training. The subcommittee had before it documents relating to the Royal Ballet mid-associate scheme. 
13.	In her affidavit of 3 August 2000, which was not before the subcommittee because it post dated its meeting, Mrs Youngson states that the West Midlands' scheme is not suitable for Jacob's vocational training since it does not provide the amount, depth or qualifications of training that he would obtain from a vocational dance school such as Elmhurst School. She also states that it would be impossible for Jacob to undertake private tuition in the Birmingham area because of the effects on their family life, in particular two other young children in the family. In particular, the family does not possess a car. Mrs Youngson says that it would not be possible for Jacob to attend such training after mainstream school hours in the Birmingham area. 
14.	The evidence of Miss Nicholls, on behalf of the authority, is that, in addition to the Dance Track and Royal Ballet School schemes, there were other providers of dance tuition in the Birmingham area. In the judgment of the committee the tuition provided by any or all of those institutions was suitable for a young person such as Jacob. It seems to me plain that the authority was entitled to reach that conclusion. On ordinary public law grounds it cannot be challenged. 
15.	The real focus of this part of the challenge is directed to the point that the committee was not apprised of the fact that the family would not be able to arrange for Jacob to take advantage of this tuition in the Birmingham area, as deposed to by Mrs Youngson. That material was not before the committee. In the normal course, the committee could not possibly be criticised for failing to give consideration to that factor since it was not placed before it. 
16.	Mr De Mello makes two points in response to that. First, he complains that it was wrong for the policy promulgated by the authority to place the burden of proving matters such as this on the applicant. I can see no substance in that complaint. It would be remarkable if such matters of fact were not required to be placed before the committee by the applicant. The committee cannot be aware of matters which are peculiarly within the knowledge of the applicant unless the applicant draws them to the committee's attention. 
17.	The second complaint made by Mr De Mello is that, if Mrs Youngson had been made aware that the committee was minded to reject the application on 26 April on the grounds that there was suitable alternative tuition available in the Birmingham area, then she would have been able to bring these matters to its attention. Mr De Mello makes the point that this matter was not expressly dealt with by the committee when it refused the application on the first occasion. However, it is quite plain that Mrs Youngson was alive to the fact that the terms of the policy required that she demonstrate that alternative forms of tuition were not available within the locality. It was for that reason she prepared a document (page 56) which was placed before the first committee in which she explained why specialist training was not available in the West Midlands area. In that document she could have gone on to say that, even if the committee did regard specialist training in the West Midlands area as being adequate, it would not have been available to this family for the reasons which she set out in her third affidavit. But she did not do so. This point of procedural unfairness does not appear to have been raised before the judge but, even if it had been, I do not think it would, or ought to, have succeeded. 
18.	It seems to me that Mrs Youngson, who has done everything she possibly can to support her son and to seek to advance his career, was alive to the requirements of the policy. Those requirements could not be clearer. She went some way to attempt to satisfy the committee by producing evidence on the issue of alternative training. She did not, however, go far enough. I therefore would reject the second ground. In those circumstances, I need only deal with the remaining grounds briefly. 
19.	The third ground concerns the rationality of the conclusion of the committee that it had not been shown that alternative sources of funding had been pursued. The committee appears to have been made aware of the fact that Mrs Youngson had attempted to obtain information from Elmhurst School as to whether it would or would not provide funding. The school told Mrs Youngson that it would notify the authority directly as to the position. Following that, there was contact between a representative of the authority and the school, but it seems that there was no discussion on this vital question. In the result, the committee came to the conclusion that the applicant had not discharged the burden of proving that alternative sources of funding from that source were not available. 
20.	I see some force in the point made by Mr De Mello that, in the particular circumstances of this case, either the burden of proof did not rest on the applicant or it had been sufficiently discharged by bringing to the attention of the authority that the relevant information would be provided directly by the school to the authority. I would, therefore, have been inclined to have granted permission to appeal on that point. 
21.	The final group of points concerns the application of Article 8 of the European Convention on Human Rights and Article 2 of the First Protocol to that Convention. Suffice it to say that those arguments did not appeal to the judge for the reasons that he set out at paragraph 27 and following. I agree with all that he says in that part of his judgment. 
22.	For the reasons I have mentioned, this application must be dismissed.
Order: Application dismissed. Public funding assessment.