H v East Sussex County Council & Ors [2009] EWCA Civ 249

[2009] EWCA Civ 249Case No C1/2008/2645
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
HHJ Inglis
CO/7357/2008
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 31/03/2009
Before
LORD JUSTICE WALLERVice-President of the Court of Appeal, Civil DivisionLORD JUSTICE SCOTT BAKERLORD JUSTICE TOULSON
Between
Miss HAppellantEast Sussex County Council and OrsRespondents
(Transcript of the Handed Down Judgment ofWordWave International LimitedA Merrill Communications Company190 Fleet Street, London EC4A 2AGTel No: 020 7404 1400, Fax No: 020 7831 8838Official Shorthand Writers to the Court)
David Wolfe (instructed by Messrs Levenes) for AppellantPeter Oldham (instructed by Legal Services, East Sussex County Council) for theFirst RespondentHearing Hearing date : 24 th February 2009
JudgmentLord Justice Waller :Introduction
[1]MH is 12 years old and has Prader Willi Syndrome (PWS). That is a complex condition that affects many areas of her development. It impacts on, among other things, her language and communication and her ability to interact with those around her. She also has associated general learning difficulties, significantly disordered language development and a rigidity of thinking which means she finds it hard to cope with change. She has associated low muscle tone which leads to difficulties with both fine and gross motor control.[2]MH was statemented under the Education Act 1996. On 8th February 2008 her local education authority, East Sussex County Council (the LEA), amended MH’s statement in anticipation of her transfer from secondary school in September 2007. The statement as amended set out the LEA’s views as to MH’s Special Educational Needs (Statement Part 2), the Special Educational Provision to be made to meet those needs (Statement Part 3) and the school placement which should be made for her (Statement part 4). The placement proposed by the LEA was Grove Park School as from September 2008 – Grove Park being a day special school.[3]On 25th March 2008 as was her right Miss H, MH’s mother, appealed under section 326 of the 1996 Act seeking amendments to Parts 2, 3, and 4. In particular she sought an amendment so that in place of the day school requirement should be placement at St Mary’s, a residential special school.[4]Miss H’s appeal was supported by a number of medical experts, by the principal of St Mary’s, where MH had been assessed, and an Educational Psychologist, Ruth Birnbaum. The LEA relied on their experts including an Educational Psychologist and the principal of Grove Park School.[5]The appeal came on for hearing before a Special Educational Needs and Disability Tribunal on 27th June 2008. That Tribunal gave its written decision on 9th July 2008 and by that decision it refused to make the amendments to the Statement contended for by Miss H and in particular did not require MH to be placed at St Mary’s the residential school on the grounds that “we were not convinced from the evidence that MH can only receive an appropriate education in a residential setting and it follows that the LEA’s grounds of opposition to residential placement, on the grounds that this will involve unreasonable public expenditure, succeeds.”[6]Miss H, by notice of appeal dated 5th August 2008 (one day inside the time limit for appealing), appealed to the High Court on points of law pursuant to section 11 of the Tribunals and Inquiries Act 1992. The points of law identified in the grounds of appeal were as follows:- “1. The Tribunal erred in law in its rejection of MH’s need for a waking day curriculum (decision paragraph Aiii) in that(a) it failed to give legally sufficient reasons for rejecting the evidence including from medical and educational experts, which supported that need – the Tribunal referred only [to] the former and gave no reasons for rejecting the latter;(b) The Tribunal took into account only the medical evidence in support of that need and thus failed to have regard to plainly material evidence from educational experts to that effect and/or erroneously rejected the evidence of the educational experts (as well as doing so without explaining why it was doing so); and(c) The Tribunal rejected the evidence in support of a waking day curriculum (albeit, as above, only considering part of that evidence) on the basis that (so it considered) separation of [MH] from her mother would not be in her best interests which (however relevant it might be to a social services assessment) was not a lawful or proper basis on which to reject expert medical and educational evidence to the effect that [MH] required a waking day curriculum in relation to her special educational needs. 2. The Tribunal erred in law in concluding that Grove Park should be specified as [MH]’s school placement (in Part 4 of her Statement) (decision paragraph G) in that: (a) It erroneously reached that conclusion on the basis of its conclusion that Grove Park (taken with other provision) “represent a broadly appropriate education for [MH]” when that is not the appropriate test. The true question was whether Grove Park could make the provision set out in Part 3 of [MH]’s Statement (as it would be amended in the light of the appeal). The Tribunal never addressed itself to that question let alone did it give any lawful reasons for a conclusion on the point. (b) Grove Park could not, in fact, make the provision set out in Part 3 (as amended) such that the Tribunal could not, in any event, lawfully conclude that it would be a suitable placement. (c) Moreover, it did so instead in reliance on the provision at Grove Park and the social services support, without identifying the social services support it had in mind and (in any event) without that support having been identified as educational provision (such that it could not properly form part of the package of educational provision for the Tribunal to take into account.” (a) it failed to give legally sufficient reasons for rejecting the evidence including from medical and educational experts, which supported that need – the Tribunal referred only [to] the former and gave no reasons for rejecting the latter; (b) The Tribunal took into account only the medical evidence in support of that need and thus failed to have regard to plainly material evidence from educational experts to that effect and/or erroneously rejected the evidence of the educational experts (as well as doing so without explaining why it was doing so); and (c) The Tribunal rejected the evidence in support of a waking day curriculum (albeit, as above, only considering part of that evidence) on the basis that (so it considered) separation of [MH] from her mother would not be in her best interests which (however relevant it might be to a social services assessment) was not a lawful or proper basis on which to reject expert medical and educational evidence to the effect that [MH] required a waking day curriculum in relation to her special educational needs. (a) It erroneously reached that conclusion on the basis of its conclusion that Grove Park (taken with other provision) “represent a broadly appropriate education for [MH]” when that is not the appropriate test. The true question was whether Grove Park could make the provision set out in Part 3 of [MH]’s Statement (as it would be amended in the light of the appeal). The Tribunal never addressed itself to that question let alone did it give any lawful reasons for a conclusion on the point. (b) Grove Park could not, in fact, make the provision set out in Part 3 (as amended) such that the Tribunal could not, in any event, lawfully conclude that it would be a suitable placement. (c) Moreover, it did so instead in reliance on the provision at Grove Park and the social services support, without identifying the social services support it had in mind and (in any event) without that support having been identified as educational provision (such that it could not properly form part of the package of educational provision for the Tribunal to take into account.”[7]His Honour Judge Inglis, sitting as a Deputy High Court Judge, heard the appeal on 26th September 2008 and handed down a written judgment on 16th October 2008, in which he rejected Miss H’s arguments. He also refused permission to appeal.[8]A notice of appeal was filed on behalf of Miss H on 5th November 2008 (again one day short of the time limit) with a request for permission to appeal, pointing out that the appeal was a second appeal. The same grounds were raised as before the judge. The skeleton in support was filed on 18th November 2008 and bundles approved on 27th November 2008. The skeleton requested expedition. It submitted that “where . . . a parent has engaged an expert . . . who gives clear support . . . on a key point . . . it cannot be right that the Tribunal can reject that evidence without saying that it is doing so, let alone explaining why it has done so.”[9]The skeleton suggested that there was a conflict between the authorities at first instance as to the obligation of a tribunal when giving reasons dealing with expert evidence. It suggested that Grigson J was right when he said in H v Kent County Council and the Special Educational Needs Tribunal [2000] ELR 660 “A specialist tribunal such as SENDIST can use its expertise in deciding issues but if it rejects expert evidence it should state so specifically. In certain circumstances it may be required to say why it rejects it.”[10]The skeleton contrasted the above statement with the words of Wilkie J in KW and VW v London Borough of Lewisham [2007] ELR 11 “In my judgment, in a case such as this, where there were contending points of view being expressed by various professionals on either side of the argument, the tribunal has given sufficient reasons by identifying which side of the argument had succeeded.”[11]As I understand the submission in the skeleton it is first that the judges saying what they did in the above cases were to be taken to be laying down propositions of law, so that a failure in any case to comply in the case of Grigson J would produce an unlawful decision, or compliance with what Wilkie J said would in any case produce a lawful decision, and second that there was a disagreement between them as to what in law amounted to a failure to give reasons.[12]Although this was a second appeal Ward LJ was persuaded to grant permission to appeal on the basis that there “may be” a difference of approach as between Grigson J and Wilkie J and ordered expedition.

Timetable

[13]I have set out the timetable in some detail because, although what was in issue in the case was the question of which school MH should attend for the term starting in September 2008, it is to say the least unsatisfactory if this court is only considering that question in February 2009. Obviously, if and insofar as there does appear to have been some delay in getting the matter dealt with in the Court of Appeal as between 27th November 2008 and 26th January 2008, that is a matter of regret but in truth it is not that period which is of the greatest concern, since the beginning of term had long since passed. The problem seems to me to occur at earlier stages. It took until 26th March to appeal a decision of 8th February. It then took until 27th June to get a hearing before the Tribunal. A notice of appeal from that decision was only one day short of the limit, whereas the urgency would have dictated an immediate issue of a notice and an attempt to get the matter heard in the Administrative Court. Notice of Appeal from the decision of the judge was, again, one day short of the limit. A skeleton was filed some 13 days later which then asked for expedition but bundles were not approved until 27th November 2008. We did not explore the reasons for the above timescales and I am not seeking to place blame anywhere; all I do say is that if the issue relates to the education of a child as at the beginning of a school year, at every stage speed must be of the essence, and it does not strike me that that was the approach fully adopted in this case.

Approach to giving reasons

[14]In my view furthermore the submission on which Ward LJ was persuaded to grant permission to appeal in what was a second appeal was flawed. The submission, as I understand it, has elevated statements of Grigson J and Wilkie J taken on their own into propositions of law applicable in all cases and on that basis suggested there is an inconsistency. That, in my view, is an entirely wrong approach and it is right to deal with what I suggest is the proper approach at the outset. I would in so doing also suggest that despite its good intentions there are dangers in summarising what are suggested to be “requirements” identified in the authorities, as Beatson J was persuaded to do in R(L) v London Borough of Waltham Forest and Another [2004] ELR 161 at paragraph 14. There he suggested he was summarising the “requirements” central to the appeal before him and he did so in these words:- “14. Reasons must, first, deal with the substantial points that have been raised so that the parties can understand why a decision has been reached. This is seen from S (A Minor) v Special Educational Needs Tribunal and Another [1995] 1 WLR 1627, sub nom S v special Educational Needs Tribunal and City of Westminster [1996] ELR 102 and M v Worcestershire County Council and Evans [2002] EWHC 1292 (Admin), [2003] ELR 31. In H v Kent County council and the Special Educational Needs Tribunal [2000] ELR 660, Grigson J stated that what was necessary was that the aggrieved party should be able to identify the basis of the decision. Secondly, a specialist tribunal, such as SENDIST, can use its expertise in deciding issues, but if it rejects expert evidence before it, it should state so specifically. In certain circumstances it may be required to say why it rejects it: see H v Kent County Council, per Grigson J, at para [50]. Thirdly, mere recitation of evidence is no substitute for giving reasons: see L v Devon County Council [2001] EWHC Admin 958, [2001] All ER (D) 155 (Nov), per Gibbs J, at para [50]. Fourthly, and linked to the second point, where the specialist tribunal uses its expertise to decide an issue, it should give the parties an opportunity to comment on its thinking and to challenge it. That is established in the Mental Health Review Tribunal context by R v Mental Health Review Tribunal ex parte Clatworthy [1985] 3 All ER 699, and in the context of this tribunal in M v Worcestershire County Council and Evans.”[15]The trouble with such a summary is that it risks elevating into general principles what are statements by judges made by reference to the facts and circumstances of particular cases but taken out of context. That summary, for example, and indeed the mere quote from Grigson J’s judgment, does not reveal that the situation in the case before Grigson J was that his comment was made where there was certain unchallenged expert evidence which the Tribunal’s decision did not deal with at all. Furthermore a full citation from Grigson J’s judgment would show that he was approaching the challenge in that case by reference to the general principles, to which I shall refer, and not because he thought he was laying down a rule of general application. I should add that the position before Wilkie J was that there was competing evidence and the case was one in which the Tribunal had to decide which it preferred. His comment, too, must be read in its context and not as laying down some general rule applicable in all cases.[16]The requirement to give reasons is concerned with fairness and as far as guiding principles are concerned I agree with what Wall LJ said in W v Leeds City Council and SENDIST [2006] ELR 617. After referring to four first instance decisions specifically relating to Special Educational Needs Tribunals and the giving of reasons, including Grigson J’s decision in R(M) v Brighton and Hove City, he said at paragraph 53 to 54 as follows:- “53. I do not think it necessary for this court to add to the already substantial jurisprudence on this topic. Speaking for myself, I have always regarded the judgment of Sir Thomas Bingham MR (as he then was) in this court in Meek v Birmingham City Council [1987] IRLR 250 (even though it substantially antedates the incorporation into English Law of ECHR) as the definitive exposition of the attitude superior courts should adopt to the reasons given by Tribunals. Whilst, of course, some aspects of the reasoning processes of different specialist tribunals are unique to the particular speciality which is engaged, I see no reason, in this context, to distinguish between Employment Tribunals and what are now SENDISTs. Sir Thomas said:
“It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal’s basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises . . .” 54. The Master of the Rolls added: “Nothing that I have said is, as I believe, in any way inconsistent with previous authority on t his subject. In UCATT v Brain [1981] IRLR 225, Lord Justice Donaldson (as he then was) said at p 227: “Industrial Tribunals’ reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law . . . their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which the reasons are given.””” “It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal’s basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises . . .” “Nothing that I have said is, as I believe, in any way inconsistent with previous authority on t his subject. In UCATT v Brain [1981] IRLR 225, Lord Justice Donaldson (as he then was) said at p 227: “Industrial Tribunals’ reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law . . . their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which the reasons are given.”””
[17]I would merely add to those dicta, the dictum of Baroness Hale in Secretary of State for the Home Department v AH (Sudan) and Others [2008] 1AC 678where she paraphrased a view she had previously expressed on expert Tribunals in these words:- “30. . . This is an expert tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right: see Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, [2002] 3 All ER 279, para 16. They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently. I cannot believe that this eminent Tribunal had indeed confused the three tests or neglected to apply the correct relocation test.”[18]The point made by Baroness Hale is particularly important to bear in mind where what is being criticised is not the rejection of unchallenged technical evidence of an expert where the tribunal has no full expertise in the area with which the evidence is concerned e.g. medical evidence as to the condition of a person; but is the rejection of expert evidence providing opinion evidence on the very point which that expert tribunal has to decide.[19]It must also be noted in the context of SENDIST decisions that the requirement of the Regulations is that “The decision . . . shall be recorded in a document which, save in the case of a decision by consent, shall also contain, or have annexed to it, a statement of the reasons (in summary form) for the tribunal’s decision, and each such document shall be signed and dated by the chairman” [my underlining]. [See Regulation 36 Special Educational Needs Tribunal Regulations 2001 (SI 2001/600).] Summary reasons should not contain a fully comprehensive analysis or spell out every step in the reasoning or deal with every conceivable point; their purpose (as Donaldson LJ put it) is to tell the parties in broad terms why they lost or won.

The decision of the Tribunal

[20]Against the above background I turn to the decision of the Tribunal in this case. First it is convenient to set out the statutory background. Section 324 of the 1996 Act specifies that: “(2) The statement shall be in such form and contain such information as may be prescribed. (3) In particular, the statement shall—(a) give details of the authority's assessment of the child's special educational needs, and(b) specify the special educational provision to be made for the purpose of meeting those needs, including the particulars required by subsection (4). (4) The statement shall— (a) specify the type of school or other institution which the local education authority consider would be appropriate for the child, (b) if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement, …” [underlining added] (a) give details of the authority's assessment of the child's special educational needs, and (b) specify the special educational provision to be made for the purpose of meeting those needs, including the particulars required by subsection (4). (a) specify the type of school or other institution which the local education authority consider would be appropriate for the child, (b) if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement, …” [underlining added][21]Regulation 16 of the Education (Special Educational Needs) (Consolidation) Regulations 2001 (SI 2001/3455) specifies that:
“A statement shall— (a) be in a form substantially corresponding to that set out in Schedule 2 to these Regulations; (b) contain the information therein specified; …”
[22]Schedule 2 of the Regulations requires that Part 4 of a Statement includes: “(a) the type of school which the authority consider appropriate for the child and if the authority are required to specify the name of a school for which the parent has expressed a preference, the name of that school, or, where the authority are otherwise required to specify the name of a school or institution, the name of the school/or institution which they consider would be appropriate for the child and should be specified; …” [underlining added][23]Moreover, it is not disputed that a Statement of Special Educational Needs must make provision in its Part 3 for all the Special Educational Provision which a child requires and cannot leave it to bodies other than the LEA (such as the social services department) to make special educational provision. Where a child’s educational needs are to be met by a combination of a day school placement plus additional provision, that additional provision covering the child’s educational needs must, itself, be specified and quantified in Part 3 of the child’s statement.[24]In carrying out their functions the LEA must by Section 313(4) of the Act have regard to a code of practice issued by the Secretary of State under section 313(1). The code which deals with the different stages of the special educational needs process is the Special Educational Needs Code of Practice November 2001 and the relevant part of the code is paragraph 8 under the heading “Residential Placements”. Paragraph 8.74 provides:- “In general LEAs are likely to consider that there is a need for residential provision where there is multi-agency agreement that:• The child has severe or multiple special educational needs that cannot be met in local day provision;• The child has severe or multiple special educational needs that require a consistent programme both during and after school hours that cannot be provided by parents with support from other agencies;• The child is looked after by the local authority and has complex social and learning needs, and placement is joint-funded with the social services department;• The child has complex medical needs as well as learning needs that cannot be managed in local day provision and the placement is joint-funded with the health authority.”• The child has severe or multiple special educational needs that cannot be met in local day provision;• The child has severe or multiple special educational needs that require a consistent programme both during and after school hours that cannot be provided by parents with support from other agencies;• The child is looked after by the local authority and has complex social and learning needs, and placement is joint-funded with the social services department;• The child has complex medical needs as well as learning needs that cannot be managed in local day provision and the placement is joint-funded with the health authority.”[25]The Statement in relation to MH, as amended, was produced by the LEA in part by agreement but in part not. The main area of disagreement, as already indicated, was that the school placement proposed by the LEA was a day school, Grove Park School, from September 2008.[26]On 25 March 2008, Miss H appealed under section 326 of the 1996 Act against Parts 2, 3 and 4 of that Statement. By her grounds of appeal, she asked the Tribunal to order amendments to Parts 2, 3 and 4, including amending Part 4 to specify that MH be placed at St Mary’s, a residential special school.[27]Those grounds of appeal quoted directly from (among other expert reports) a report from an Independent Educational Psychologist, Ruth Birnbaum who, on educational grounds advised that MH required a residential placement, also (and consistent with the concept of a residential placement) that [see page 257 para ii)]:
“She requires a 24-hour curriculum to meet her Learning, Social, Emotional and Behavioural needs, in addition to the therapeutic needs which have arisen as a result of Prader-Willi Syndrome.”
[28]The appeal, and in particular the request for a 24 hour curriculum or placement, was supported by a range of expert reports. They variously advised that MH required a residential placement on medical and/or (as Ruth Birnbaum had done) on educational grounds. There were for example the following reports:-:(1) Consultant Paediatric Endocrinologist from Great Ormond Street Hospital 13 June 2007 ;(2) General Practitioner 12 June 2007;(3) Consultant Paediatrician 19 June 2007;(4) Community Paediatrician 2 July 2007.[29]Ruth Birnbaum’s report of 6 February 2008 gave her expert opinion that :
“In order to meet the totality of [MH]’s special educational needs, . . . : . . . ii) She requires a 24-hour curriculum to meet her Learning, Social, Emotional and Behavioural needs, in addition to the therapeutic needs which have arisen as a result of her Prader Willi Syndrome. The waking-day curriculum will need to address her daily living skills, her independent skills across a structured and consistent routine where she can learn skills in functional environments and there is a transfer and generalisation of activities through home and residence.”
[30]It will be noted that in this paragraph Ruth Birnbaum is dealing not simply with “learning” but with “social, emotional and behavioural needs” including “daily living skills”. Such may impact on “education” but are not, as it seems to me, strictly “educational”, but I will return to that below.[31]Those grounds of appeal were later supplemented (in accordance with the Tribunal’s procedures) with Miss H’s Case Statement of 12 May 2008, which quoted extensively from Ruth Birnbaum’s report.[32]On 12 May 2008, the LEA also submitted a Case Statement. It noted that the LEA had agreed to many of the requested changes in Parts 2 and 3. It also explained that :
“[The LEA] believes that [MH]’s needs can be met in local day provision. The authority believes that there is no evidence that her needs cannot be met by a day placement, with support from the Children’s Disability Team [i.e. social services department]. The [social services] core assessment (both the initial draft and the final version) did not recommend that a residential placement was necessary and therefore there is no agreement to joint fund. Much of the medical evidence suggests a residential environment might be appropriate, but stops short of any recommendation or agreement that this should be jointly funded by health.”
[33]The reference to joint funding is a clear reference to paragraph 8.74 of the guide, previously quoted, particularly the final two bullet points.[34]The dispute at the heart of the appeal, which the Tribunal needed to resolve, was described by Mr Wolfe in his skeleton as being “whether (as Miss H contended) MH required a “24 hour curriculum” (which would have necessitated a residential placement), or whether, as [the LEA] contended, her educational needs could be met in a day placement (Grove Park), supplemented with additional provision out of school hours”. It seems to me that that puts the issue in a loaded way. The real issue was whether MH’s educational needs could or could not be met in local day provision and/or whether MH had severe or multiple special educational needs that required a consistent programme both during and after school hours that cannot be provided by parents with support from other agencies [see the first two bullet points of the guide]. It was relevant to those questions as the guide itself makes clear what support would be available from other agencies outside school hours if she went to a day school, to be compared with what she would receive outside school hours in a residential placement.[35]The Tribunal heard Miss H’s appeal on 27th June 2008. The Tribunal summarised the position taken up by Ruth Birnbaum at Paragraph 16 in this way:- “16. Ms Birnbaum, who did a long report on [MH] in February this year, concluded that it was essential that [MH] receives structured care with a consistent routine which she would not be able to receive from a variety of different providers within the home setting. She told us at the hearing that [MH] needs opportunities to generalise her skills after school (noting that she has poor coping strategies) in order to develop independence, health eating and lessen her anxieties. Ms Birnbaum would expect the therapists, especially the speech and language and occupational therapists, to do some work with [MH] after school hours for this purpose.”[36]It then summarised the evidence which challenged Ruth Birnbaum’s conclusion at paragraphs 17 and 18 in this way:- “17. Mrs Clarke said that her school has a club from 3.00 pm to 6.00 pm on Wednesdays for the pupils, which is run by social services. The children have tea and then go on outings in good weather and at other times follow indoor activities such as art. Parental involvement is actively encouraged. Ms Hughes said that the LEA has the services of the Family Intensive Support Service, which is an NHS facility staffed by clinical psychologists, speech and language therapists and specialised social workers. They work at home with the children in co-operation with their parents and then, if necessary continue this support at school. Mrs Clarke said that she was confident that, subject to receiving extra therapy support – as detailed in the costings section later – her school can meet [MH]’s needs. 18. Children’s Services also offered to Miss H continued support from Carers First, an independent organisation which provides specialist help to pupils in their homes. This has been provided for [MH] for some years and is comprised of support one evening a week and on Saturday mornings. Miss [H] commented that this only works when she is in close support to see that [MH]’s often subtle needs are not misunderstood. An example given was that she has to go along when [MH] is taken swimming in case she misunderstands instructions. Children’s Services have also offered 52 nights a year of residential respite care for [MH], when she would stay with another family. Miss [H] does not think this would work because of the very heavy demands it would place on the carers.”[37]Their conclusion in relation to residential placement they express in this way:-[paragraph Aiii]:
“The necessity or otherwise for a waking day curriculum. Our conclusions here are that despite the outstanding care and attention [MH] has had at her primary school, she can no longer cope in mainstream and must go to a special school placement. Everybody concerned agrees with this. We also note that [MH]’s primary school did not have undue difficulty in managing her food craving while she was a pupil there, as they responded by keeping her heavily involved in school activities at all times. We next refer to the weight of medical evidence in favour of residential placement, but equally must note that the medical professionals do not have educational expertise and presumably have not heard any of the details we had about Grove Park School and what it has to offer. We must finally note here that no-one from the Health Service saw fit to recommend and offer joint funding of a residential placement for [MH]. We have come to the same conclusion as did Children’s Services to the effect that the conclusion from their core assessment was that separation of [MH] from her mother would not be in her interests and consequently joint funding by them would not be offered. Instead, they offer the varied programme referred to in the Facts in the form of support from Carers First and the possibility of overnight respite with another family. We must say straight away here that we respect Miss [H]’s view that the latter will not work for [MH] and nothing we say must be taken to indicate that such overnight care has got to be provided for her. We also took into account Miss [H]’s view that [MH] would not have any difficulty in separating from her to become a school boarder.”
[38]The criticism that Mr Wolfe makes of that reasoning is that the Tribunal rejected Miss H’s challenge by reference to the medical evidence in support of her request (and gave a reason for rejecting that medical evidence), but without making any mention of the educational evidence of Ruth Birnbaum in support of it, let alone with any reasons for rejecting the latter.[39]The Tribunal returned to the question of placement later in its decision, saying this [page 60 paragraph G]:
“Our overall conclusion is accordingly that the package of support offered by the LEA for [MH], including her placement at Grove Park, the extra therapy provision offered and the social services support will taken together represent abroadly appropriate education for [MH] as she enters secondary schooling. St. Mary’s is clearly a highly specialised school which offers excellent opportunities to its pupils. However, we were not convinced from the evidence that [MH] can only receive an appropriate education in a residential setting and it follows that the LEA’s grounds of opposition to residential placement on the grounds that this will involve unreasonable public expenditure succeeds.”

The judge’s judgment

[40]The judge dealt with the primary ground of appeal, the alleged failure to deal with Ruth Birnbaum’s evidence in these terms:- “34. . . . The point of out of school day educational need, though clearly decided against the mother, and against Ruth Birnbaum, is not directly met by the tribunal’s analysis of the evidence. Nonetheless the right question was asked and there was evidence on each side and the Tribunal stated clearly which side it preferred. The conclusion is clear, that the educational provision can be supplied by Grove Park with the extra therapy identified, and the other needs are met by non-educational support for the mother. I do not regard those reasons as so inadequate as to be unlawful.”

Discussion and conclusion

[41]I would put the matter more strongly than the judge and say that it is quite apparent from the Tribunal’s decision that it has weighed up the evidence and competing views, including the view expressed by Ruth Birnbaum in favour of a residential placement (paragraph 16) and the view supporting the LEA’s position on the other (paragraphs 17 and 18). It has then rejected the need for MH to be at a residential school. Mr Wolfe suggests that they have not dealt with Ruth Birnbaum’s view as to the need for a “24 hour waking curriculum”. The difficulty with a phrase such as “waking curriculum” is that it at first blush seems to be dealing with educational needs alone, but in reality, as Ruth Birnbaum’s own report showed (see paragraph 30 above), it deals with both educational needs and non-educational needs which impact on MH’s behaviour and how she copes and thus impacts on education. In rejecting Ruth Birnbaum’s ultimate conclusion I do not read the Tribunal as having rejected every aspect of what was contained in Ruth Birnbaum’s “24 hour waking curriculum”. I understand the Tribunal to have assessed what will be available outside the day school hours if MH is to stay at home as compared with what would have been available at a residential school.[42]What this specialist Tribunal decided was that they were satisfied that a residential school was not necessary in order to provide both education and the programme required outside of school. It was clear from their reasons that Miss H had lost the argument that only a residential school could provide for MH’s education and such other programme as was required out of school hours. It was clear that Ruth Birnbaum’s view, that only a residential school could provide sufficient to meet MH’s needs, was rejected. It was clear from their reasons that the Tribunal took the view (in the words of the guidance) that the programme required by MH could be provided by Grove Park during school hours and by Miss H with the support of other agencies after school hours.[43]I would therefore reject the primary ground of appeal.

Educational provision out of school hours

[44]A Statement of Special Educational Needs must (in its Part 3) specify and quantify the special educational provision which the child in question requires; and, if necessary, the Tribunal (on appeal) must order amendments to the Statement to achieve that result.[45]There was no dispute that MH had needs which had to be met beyond the ordinary school day. Thus, as already noted, the Tribunal here concluded:
“Our overall conclusion is accordingly that the package of support offered by the LEA for [MH], including her placement at Grove Park, the extra therapy provision offered and the social services support will, taken together, represent a broadly appropriate education for [MH] as she enters secondary schooling.”
[46]Mr Wolfe’s submission is that since the Tribunal’s conclusion on “appropriate education” is supported by a package which includes extra therapy offered and the social services support, the plain meaning of the Tribunal’s reasons on the point was that the “extra therapy” and the “social services support” were part of MH’s educational provision. Thus, he submits, that since those elements (and most particularly the “social services” element) were not properly specified or quantified in [MH]’s Statement, the Tribunal had failed to specify what educational provision was required. The reference to “particularly the ‘social services’ element” possibly recognised that in Part 3 “Speech and Language therapy” is specified; indeed before the judge I do not think any criticism was made other than that “social services” were unspecified. [See grounds of appeal 2(c) quoted in paragraph 6 above].

The judge said this:

“39. If any aspect of that additional provision was to be regarded as educational then it had to be in part 3 and quantified and it was necessary to show how it would be provided either by the school specified in part 4 or by other means. I am satisfied that neither the Tribunal nor anyone conducting the case thought that this was educational provision. Part 3 was negotiated and fought over. Mr Silas’ evidence in his witness statement about the final submissions describes the argument in this area:- “Miss White said that with proper support and social progress outside of school there would be no reason for M to require a residential curriculum”
. Mr Silas said:- “There was educational need for residential curriculum not just social activities.” 40. I do not find that the Tribunal thought that this was educational provision. The strongest support for the view that they fell into error comes in the first sentence in paragraph G when placement at Grove Park, extra therapy (which is defined in part 3) and social services support are all taken together to result in a “broadly appropriate education”. The alternative view is that the Tribunal were simply acknowledging that the social support that would contribute significantly to M’s wellbeing overall without itself being educational provision that had to be specified as such, and that the social support would be important to her. I acknowledge that to take the latter view is to qualify the plain sense that all 3 factors are said to contribute to a broadly appropriate education but I am unable to accept that in the decision as a whole the Tribunal thought that this provision was educational. As in the case of R (A) -v- Cambridgeshire County Council and SENDIST [2002] EWHC 2391 mixing up discussion of educational and non educational provision by the Tribunal that is only dealing with the former (even though the life of the child with special educational needs will often require a combination of the two) may cause difficulty when it comes to legally appropriate reasons for a decision. However in my judgment properly looked at here the Tribunal consistently with the approach that it should adopt was identifying the out of school support as non educational despite the terms of paragraph G. It was identifying the care of Ms H together with social services and other social support as necessary for M’s well being, but not as educational. In my judgment it was open to the Tribunal to come to the conclusion it did and it is not shown to have been wrong. “Miss White said that with proper support and social progress outside of school there would be no reason for M to require a residential curriculum”. “There was educational need for residential curriculum not just social activities.”[48]Mr Wolfe submits that that analysis involved the judge rewriting the terms of the decision. I disagree. It seems to me quite apparent that the Tribunal, hardly surprisingly in a case where care after school is important, and where the guidance envisages that “support from other agencies” will be a relevant consideration, will be considering the position overall. But if one then asks whether social services, e.g. the provision of carers, are the provision of education, it seems to me they are not, and clearly the Tribunal did not consider them to be so.[49]In my view this second ground of challenge was rightly rejected by the judge.[50]I would accordingly dismiss the appeal.

Lord Justice Scott Baker :

[51]I agree that this appeal should be dismissed for the reasons given by Waller LJ. I would, however, wish to add my emphasis to the observations he has made in paragraph 13 about the delay that has occurred in this case. Cases that involve issues about the education of a child are par excellence cases that need to be heard and determined expeditiously. It is incumbent on everyone dealing with such cases, whether, litigants, tribunals, courts, those processing applications for public funding or anyone else to make sure that they proceed with all due speed. Otherwise there is a real danger that the child’s best interests may be overtaken by the passage of time.

Lord Justice Toulson :

[52]I agree with both judgments.

Cited in 28 later judgments

and 19 more of the most senior