Way v Poole Borough Council & Anor [2007] EWCA Civ 1145

Case No (1) C1/2007/1995

(2) C1/2007/1995 (A)

[2007] EWCA Civ 1145

IN THE SUPREME COURT OF JUDICATURE

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE HIGH COURT OF JUSTICE

QUEEN’S BENCH DIVISION

(DEPUTY HIGH COURT JUDGE JAMES GOUDIE QC)

Venue Royal Courts of Justice, Strand, London, WC2A 2LL

Date Tuesday, 16 th October 2007

Before

LORD JUSTICE DYSON

LORD JUSTICE WILSON

MR JUSTICE HOLMAN

Between

WAYAppellant

POOLE BOROUGH COUNCIL & ANRRespondent

(DAR Transcript of

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Mr J Friel (instructed by Fisher Meredith LLP) appeared for Appellant.

Mr L Wilson (instructed by Poole Borough Council) appeared for Respondent.

Judgment

[1]T was born on 4 September 1998. On 12 September 2006, Poole Borough Council (“the Council”) made a statement of special educational needs (“the statement”) in accordance with Section 324 of the Education Act 1996 (“the 1996 Act”) in respect of him. His special educational needs were described in detail in part 2 of the statement. He was said to be experiencing difficulties which included:

“Refusal to engage with adults and follow adult requests/directions; Outbursts of physical and verbal aggression… Disruption to his own learning due to his behaviour and reluctance to comply with adult direction; Attendance difficulties (when not taking medication for [his diagnosed Hyperkinetic ODD Conduct Disorder (ADHD with oppositional behaviour)]”

Outbursts of physical and verbal aggression…

[2]Part 3 of the statement set out what educational provision was necessary to meet these needs. In part 4, the council specified as an appropriate type of school for T “A day school for behaviour, emotional and social difficulties” (“EBD”), and named Longspee School as being an appropriate school. T’s mother appealed to the SENDIST. She objected to the contents of parts 2, 3 and 4 of the statement. As regards part 3, she contended that T needed a 24 hour “waking day” curriculum, i.e. at a residential placement, and that he needed to have his educational, social, sensory and speech and language needs met in a specialist 24 hour residential setting. As for part 4, her case was that these complex needs would be appropriately met at St John’s School -- Longspee was not suitable.

[3]The decision of the SENDIST is dated 30 March 2007. It will be necessary to examine this in a little detail. At this stage, it is sufficient to say that the tribunal made some amendments to part 2 of the statement. The most significant of these was to add to the list of T’s difficulties:

“Difficulties associated with a very severe hyper-kinetic disorder and other features within the autistic spectrum”

. They did not amend part 3. In relation to part 4, they said that for the avoidance of doubt it should read:

“Type: special school for pupils with emotional and behavioural difficulties”

. And they named the school “Longspee Special School”.

[4]The mother appealed to the High Court. She purported to identify many errors of law in the SENDIST decision. Judgment was given by Mr James Goudie QC, sitting as a Deputy High Court Judge on 31 July 2007. He rejected all of the appellant’s points save one. The complaint which the judge upheld was that part 3 did not sufficiently specify T’s needs. He held, however, that this lack of specificity did not vitiate the SENDIST’s conclusion on placement or the other aspects of their decision. Accordingly, he ordered that the case be remitted to the SENDIST for them to amend part 3 so as to reflect the conclusions as to T’s needs expressed in paragraphs H, L, N, O, P and Q in their decision.

[5]Before I come to the issues that arise on this appeal I need to refer to the decision of the SENDIST and the judge in a little detail.

[6]The SENDIST decision: The SENDIST set out the facts in nineteen numbered paragraphs. They heard evidence from Mr Bell, the head teacher at the Longspee School. There was also a good deal of documentary evidence in the shape of reports of psychologists and paediatricians, and much material about the Longspee School. The numbered paragraphs included the following: “12. Mr Bell told us that within the Sylvan Unit, which educated pupils at Longspee in Years 1, 2 and 3, there was a teacher who was completing a PHD in speech and language and communication behaviours. There was a small number of staff with qualifications relating to short course on ASD. The staff had always worked with pupils with ASD. Since Mr Bell joined the school in 2001 the number of pupils on roll with ASD had increased and now, out of 32 pupils, 8 had ASD. There was weekly ongoing training for staff and inductions for all staff to aid the understanding of EBD.13. There was training for staff at Longspee on ASD and the curriculum was offered through a highly structured approach with the use of visual timetables. Two of the six pupils in the class proposed for Tyler had ADHD whilst 4 had behavioural and social difficulties. All were of average cognitive ability. There were 3 teaching staff for each class, with one qualified teacher and 2 teaching assistants. A Speech and Language Therapist attended the school for half a day a week and offered direct support to pupils and staff. The whole approach of the school was to encourage socially acceptable behaviour. Learning social skills was integrated throughout the curriculum. Mr Bell confirmed that the school offered behavioural strategies suggested by Mr Davies in his report together with clear expectations of the child.

14. There was appropriate liaison between home and school through Annual Review meetings, Individual Education Plans and reports to ensure a consistency of approach. The school operated an open door policy although the school did not have a home school book. There were multi-professional meetings to share information. For individual children there was a CAMHS therapist on site. There was also drama-based therapy. The school also had regular input from SENSISS (special educational needs support team) and the Educational Psychology Service. Mr Bell himself had many years teaching in schools for pupils with behavioural and social problems.

15. Where occupational therapy was recommended the school did work with the OT service.

16. Mr Bell had a strong belief that Longspee could meet [T]’s needs.

17. Ms Way stated that the restraint policy would scare [T] and this method did not work with him. Mr Davies expressed his concerns regarding school exclusions and the method of teaching pupils social behaviour.

18. Mr Denman told us that St John’s School could address a range of pupils’ needs including a ‘whole range of pupils with emotional and behavioural difficulties’. The class proposed for Tyler would have 5 children and all would be at Level 1 to 2 and within Year 7 age range. Currently there were no children in the primary age group. Half of the pupils at St John’s were day pupils”.

[7]Mr Davis is a chartered educational psychologist who gave evidence before the tribunal on behalf of the appellant. He had written a report dated 14 January 2007. He considered that T suffered from Asperger’s syndrome. His opinion was not, however, accepted by the SENDIST. The tribunal set out their conclusions and reasons in paragraphs A to U. At paragraphs A to E, they explained why they agreed with the description in the statement that T was suffering from:

“…a very severe hyperkinetic disorder and other features within the autistic spectrum”

. At paragraph I, they explained that since his primary difficulty was not Asperger’s syndrome, they did not include in part 3 of the statement a requirement that T should be provided with:

“…a waking day curriculum in a school specialising in children with high functioning autism and associated social communication difficulties”

. At paragraph K, they said that they were not persuaded on the need for a residential placement for T.

[8]I need to set out the whole of the decision from L to U: “L. In view of the overall evidence we considered that Debra Onslow gave an accurate description of [T]’s needs and we have included this in our order. We are persuaded by her recommendations which include highly specialist input from a multi-disciplinary team who are highly skilled in the area of complex communication disorder, ASD sensory programmes and proactive behaviour support strategies. She also recommended that he be educated in a school with small classes and a high level of adult support where staff are experienced in the management of challenging behaviour and ASD and there are opportunities to provide a consistent approach across the waking day. We consider from the evidence given to us that Longspee could offer this provision. M. Longspee is a school for pupils with emotional and behavioural difficulties which we conclude is [T]’s primary difficulty. Longspee’s admission criteria lists pupils who have significant and persistent behavioural emotional and social difficulties and have complex behavioural, social and/or emotional difficulties which may result in him being unable to access the curriculum in a mainstream environment. We conclude from the evidence recited above that Tyler fits this criteria. N. We agree that he has ASD characteristics but we do not find, in view of the medical evidence and evidence from Rachel Reid, Educational Psychologist that he needs a school for pupils with Asperger’s Syndrome. O. There was training for staff at Longspee on ASD and the curriculum was offered through a highly structured approach with the use of visual timetables. Mr Bell confirmed that the school offered behavioural strategies suggested by Mr Davies in his report together with clear expectations of the child. P. A SALT attended the school for half a day a week and offered direct support to pupils and staff. We noted that Margo Sharpe’s recommendations had altered between her first and second report. In her second report she advocated the need for direct speech and language therapy. The whole approach of the school was to encourage socially acceptable behaviour and from Mr Bell’s evidence we were persuaded that learning social skills was integrated throughout the curriculum. We thought this appropriate in view of Debra Onslow’s report which stated that [T] would only benefit from Speech and Language therapy if it is as a part of an integrated specialist multi-disciplinary team approach to management of his behaviour and communication skills. Q. We heard and were reasonably satisfied that Occupational therapy could be provided where required at Longspee. We were satisfied that a multi-disciplinary approach was in place at the school. R. We considered that consistency of approach across the waking day was important for [T] rather than one setting. S. The report from Nick Gregory CAMHS Specialist Nurse and Linda Perrin Family Therapist dated 5 January 2007 also persuaded us that [T]’s needs could be met at Longspee. ‘Obviously we are aware that a placement at Longspee Sylvan Unit has been offered and recommended and we feel it is likely that this specialist unit would also be able to meet [T]’s needs’ and further If Longspee Sylvan Unit was offered and accepted this could also greatly reduce his need for other mental health input as our assessment is that the main input that he needs is very skilled and effective containment and support of the sort which could be done at either of these specialist schools’ T. Their report went on to commend the work being undertaken by [T]’s regular sessional worker and the importance of this continuing. The report added ‘Clearly in view of this [T] has great need for a very high level of behavioural and social skills input but in our view these needs can be met fully at an appropriate specialist school such as either of the placements being considered’…’we note that the Wessex Autistic Society Assessment Report bears out this view that [T]’s main need is for a quite basic but very intensive behavioural approach which also incorporates Asperger’s Strategies such as use of social storied clear timetables and careful use of preparation for changes’. U. In sum we found Longspee to be appropriate. It could offer the appropriate consistency during the day and work with other agencies to ensure consistency of approach after school. We found no requirement for a waking day curriculum as such. We did not find St John’s to be appropriate. The costs of the differing placements was therefore not an issue”.

and further

[9]The SENDIST attached to their decision a statement as amended by them. As I have said, they made no amendment to part 3. It will be seen that the tribunal found that Ms Onslow gave an accurate description of T’s needs, and that Longspee could meet those needs.

Appeal to the High Court

[10]The appellant appealed. An appeal could lie only on a point of law (see section 11 of the Tribunal and Enquiries Act 1992). The first ground of her amended grounds of appeal was that the decision of the tribunal was irrational in nine respects. The second ground was that the tribunal had unlawfully used their own expertise in relation to some of the evidence. The third ground was that they had made no (or no adequate) findings in relation to direct speech therapy, occupational therapy, the evidence of Dr Baird, and the issue of whether it was appropriate to place T with children suffering from behavioural problems. Dr Baird is a consultant developmental paediatrician. The fourth ground of appeal was that part 3 of the amended statement was not sufficiently specific. The judge rejected the first three grounds of appeal in their entirety. He upheld the fourth ground in the form in which it was amplified by Mr Friel in his skeleton argument.

[11]There has been discussion this morning as to whether the first of the two points which Mr Friel seeks to advance to this court was advanced before the judge at all. That point is that the conclusion of the tribunal that, from the evidence given to them, Longspee could offer the provision advocated by Ms Onslow, was one which was not justified. In short, Mr Friel seeks to argue that there was no evidence, or no sufficient evidence, before the tribunal to justify that important conclusion of fact.

[12]We have been through the grounds of appeal before the court below with Mr Friel during the course of his argument this morning, and in my judgment he was unable to point to any passage in the rather elaborate grounds of appeal in which the point that he now seeks to take us, his first point, was raised. I do not find it necessary to go through those grounds of appeal in detail. The short point is that a submission that there was no evidence or no sufficient evidence to justify the finding of fact which Mr Friel seeks to challenge could and should have been made clearly and succinctly. There is nothing in my judgment which comes even close to such a submission. By way of example, it is sufficient to refer to paragraph 1 (v) which was one of the paragraphs that Mr Friel suggested might have come close to advancing this point. Sub paragraph (v) reads as follows: “Further, the Tribunal in finding that Part 3 of the Statement provided adequate access to speech therapy, was inconsistent with both the evidence of Margo Sharp and the evidence of the local speech and language therapist, Ms Onslow, in her report at pages 6 and 7, dated 7 March 2007. At paragraph 4 of page 7, she recommended direct speech and language therapy, rather than advice and programmes, and that the speech and language therapist needed to be able to work across settings to promote consistency and problem-solving. She expressly referred to direct sessions. In her second report at page 17, Miss Sharp recommended twice weekly direct contact with a speech and language therapist”.

[13]It is obvious, in my judgment, that that paragraph does not begin to advance the case that Mr Friel now seeks to advance as his first point. Indeed, Mr Friel did fairly concede that he had not advanced the point in the way in which he now seeks to advance it before the judge in those terms.

[14]In those circumstances, it is not surprising that the judge did not deal with the question of whether or not there was evidence before the tribunal on which they could reasonably have concluded that Longspee could offer the provision recommended by Ms Onslow.

[15]The fourth ground of appeal advanced before the judge was that part 3 of the statement did not contain any reference to the detailed provision recommended by Ms Onslow and accepted by the tribunal. As the judge put it, the conclusions of the tribunal should have been carried over into amendments to part 3, as had been done in relation to part 2. The judge did not, however, accept the submission of Mr Friel that this error vitiated the conclusion on placement and the other substantive issues that were in play before the tribunal. The judge decided to remit the case to the tribunal:

“…solely to provide more specificity in Part 3 of the Statement … so as to reflect Conclusions ‘H’, ‘L’, ‘N’, ‘O’, ‘P’ and ‘Q’, if within 14 days the parties are unable to agree the amendments necessary for that purpose”

. He rejected the submission that remission on a limited basis was inappropriate.

Appeal to the Court

[16]Mr Friel accepted at the outset of his submissions that there were only two points which he has sought to advance. I have already referred to the first point. The second point was that the judge should have remitted the case, directing the tribunal to reconsider it in the light of evidence as to the current position generally, and not for the sole purpose of requiring them to amend part 3 so as to reflect T’s needs as described by Ms Onslow. In the course of argument, Mr Friel further refined his position on the second point. He submitted that he was not arguing that the judge should have remitted the case to the tribunal for a complete rehearing of all aspects of the case de novo. His case was that the judge was in error in not remitting the case to the tribunal for the purpose of a rehearing on all aspects relating to parts 3 and 4 of the statement, in the light of evidence of the position current at the time of the rehearing.

[17]I turn therefore to the first point. In my judgment, the fact that this is a new point that was not addressed before the judge is fatal to the success of this submission. This court hears questions of law by way of reviewing the decision under appeal. It cannot be right for a party to advance by way of appeal a wholly new point not taken below, which is dependent upon a consideration of the nature of the evidence that was adduced before the tribunal. There is considerable uncertainty as to precisely what evidence was adduced before the tribunal. Yesterday I caused an email to be sent to the parties, which was directed to seeking to elicit what evidence was adduced before the tribunal.

[18]There seems to be uncertainty as to precisely what evidence the tribunal heard. This may well be in part because Mr Friel and those advising him did not represent the appellant before the tribunal. Be that as it may, it is quite impossible for this court to entertain an appeal which depends upon a consideration of what evidence was adduced before the tribunal. To judge from the text of the decision itself, it is clear, as I have already said, that the tribunal heard evidence from Mr Bell and had before them a considerable amount of material about what the school had to offer. In my judgment, it is too late to run this new point; and in any event, there is no reason to suppose that the tribunal were in error when they said that there was evidence before them on the basis of which they could reach the conclusion that they reached -- that Longspee could offer the provision recommended by Ms Onslow.

[19]I turn to the second point. Mr Friel submits that the judge should have remitted the case to the tribunal without limiting their scope for further consideration at least of parts 3 and 4 of the statement. He submits that the tribunal are bound to consider T’s needs as they are at the time of the rehearing. By restricting the tribunal in the way that he did, the judge was unlawfully fettering their discretion. He relies on section 13 A of the 1996 Act, which imposes on a local education authority a duty to ensure that their functions relating to the provision of education are, so far as possible, exercised with a view to promoting high standards, ensuring access to educational opportunity and promoting the fulfilment by every child concerned of his educational potential. Mr Friel makes the point that the tribunal is under a similar obligation. He also relies on the practice direction published by the President of the then Special Educational Needs Tribunal on 15 March 1995, which is reported at 1995 Educational Law Reports 335.

[20]In that practice direction the President referred to the fact that opinion was divided as to whether the question for a tribunal is whether 1) the local education authority’s decision was right when it took it on the evidence that it then had; or 2) what was the appropriate decision at the date the tribunal heard the case, in effect a rehearing. The President identified a number of sound arguments for taking the rehearing approach, and directed that tribunal decisions be based on what is appropriate at the date of the hearing, rather than be a judgment as to the correctness of the local education authority’s decision when it was taken. Thus, submits Mr Friel, the judge should have remitted the case to the tribunal on the footing that they would reconsider at any rate parts 3 and 4 of the statement in the light of the material available at the time of the rehearing. That material would include the most recent evidence bearing on T’s case. This includes: 1) a letter dated 4 October 2007 which contains the answers by Ms Onslow to a number of questions asked by the appellant’s solicitor, seeking clarification of Ms Onslow’s report; and 2) evidence from the appellant herself in a statement dated 10 October in which she described what has happened since the date of the hearing before the judge on 19 July 2007. She describes the difficulties she has had in relation to the travel arrangements for T, and worsening problems over his behaviour, in particular his tendency to escape from school. It is submitted that it should be open to the tribunal to take all this material into account in deciding what order to make at a remitted hearing. The judge said that he was not persuaded that he could not remit the case on a limited basis, or that it was inappropriate to remit on a limited basis in the present case. He said that the circumstances were very different from a situation where the decision in relation to part 4 falls to be quashed, as in JR & AR v Hampshire County Council and SEND Tribunal

[2006] EWHC 588 (Admin)

[2006] ELR 335

, or whether reasons for the conclusions were inadequate, as inVK v Norfolk County Council. and the SENDIST

[2005] ELR 342

[21]I cannot accept Mr Friel’s argument. I accept that, if the error of law found by the court is one which goes to the substantive decision of the tribunal, then there must be a rehearing at least of the part of the case which is infected by the error. To the extent that there is a rehearing on a substantive point in such circumstances, it is usually right that the hearing should be conducted on the basis of evidence which shows the position current at the time of the hearing; but there is no principle of law which requires that, once a remission is ordered, there must be a rehearing in full before the tribunal, regardless of the reason for the remission. I accept the submission of Mr Wilson in his skeleton argument that where, as in the present case, the purpose of the remission is to correct an oversight in the draft statement that was attached to the SENDIST decision, there is no justification for requiring a complete rehearing of the whole or indeed part of the case. The form of the decision is of some significance. The text up to and including paragraph U of the conclusions and reasons was analogous to a judgment of a court. After paragraph U, the document continues:

“Order: That the Statement of Special Educational Needs of [T] be amended in accordance with the document attached hereto.”

[22]It is clear therefore that the statement, as amended by the tribunal, was their order and was intended to reflect the substance of the decision contained in the rest of the decision If by oversight a court order does not accurately reflect the substance of its judgment, the order is corrected under the slip rule. In the context of court proceedings, it would be absurd to suggest that such a slip would justify requiring a rehearing of the case; so, too, here. It is clear that it was by oversight that the tribunal did not include in their order amendments to part 3 of the statement, to reflect the findings in the body of the decision and to bring part 3 into line with part 2. There is no reason in justice, or indeed common sense, why such a slip should require the case to be reheard denovo.

[23]None of this detracts from or is inconsistent with the practice direction issued by the President on 15 March 2005. The problem addressed by the President in that practice direction was whether a tribunal hearing an appeal (and I emphasise the words “hearing an appeal”), should reach its decision on the basis of the material that was available to the local education authority at the time when the statement was made, or on the basis of material available at the time of the hearing. The President gave sound reasons for preferring the latter; but here the issue is not on what basis the tribunal should conduct an appeal; it is whether the tribunal should be required to conduct an appeal at all, since that, in effect, is what Mr Friel submits the judge should have required them to do. If the judge should have required the tribunal to conduct a rehearing of the appeal denovo, then I see force in the submission that they should do so on the basis of the circumstances obtaining at the time of the rehearing; but for the reasons I have given, the judge was right not to order a rehearing denovo. A submission that there should be a rehearing in order to ensure that a decision is made on the basis of the most up-to-date material suffers from obvious circularity. For these reasons, therefore, I conclude that there is no substance in Mr Friel’s second point.

[24]This is a very sad case indeed. There seems to be some disagreement as to how grave the current position is. If, however, the appellant is right in her evidence that T’s condition has deteriorated, then in the Spring of next year she will have the opportunity to seek to persuade the relevant authorities to amend the statement to make appropriately revised provision. In this court, however, we are concerned with whether or not the judge was right in concluding that there were no errors of law in the decision of the tribunal. For the reasons that I have given, the two errors of law contended for by Mr Friel are in fact not errors of law at all. I would therefore dismiss this appeal. 13. I agree.

[25]I also agree.

Order

Application refused