OXFORDSHIRE COUNTY COUNCIL v (CLAIMANT) [2002] EWHC 2908 (Admin)

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
[2002] EWHC 2908 (Admin)Case No CO/3358/2002Venue Royal Courts of Justice, Strand, London WC2
Between
OXFORDSHIRE COUNTY COUNCIL(CLAIMANT)M on behalf of C (a child)(FIRST DEFENDANT)SPECIAL EDUCATIONAL NEEDS TRIBUNAL(SECOND DEFENDANT)
Before
Mr Justice GibbsMR PETER OLDHAM (instructed by Oxfordshire County Council Legal Services, County Hall, New Road, Oxford, OX1 1ND) appeared on behalf of the CLAIMANTMR JOHN FRIEL (instructed by Felix Moss, 48 Blackburn Road, Accrington, Lancashire, BB5 1LE) appeared on behalf of the DEFENDANTDate 17 December 2002
[1]MR JUSTICE GIBBS: The Oxfordshire County Council appeals against a decision of the Special Educational Needs Tribunal, "SENT", dated 26th June 2002. SENT decided that a child, C, now aged 14, should be placed at a school called Prior's Court as a boarding pupil, as his parents, Mr and Mrs M, had requested, but contrary to the provisions set out in the appellant's statement of special educational needs in relation to C. The appellant had contended that C should continue to be placed at Bishopswood School, a day school which C had been attending, and which was run by the appellant as the local education authority. Mr and Mrs M, as the first respondents, resist this appeal. SENT, the second respondent, does not appear.[2]The facts in brief are that C is a boy with autism and severe learning difficulties. He has had a statement of special educational needs since August 1994. He displays what is called "the classic triad of autistic impairments". He has poor, or no, speech and finds all communication very difficult. His relations with adults and children are severely impaired, and his behaviour is repetitive, rigid and, at times, aggressive.[3]As already mentioned, he attends Bishopswood School, which is a maintained special school run by the appellant as the local education authority, and it caters for pupils aged between 2 and 16 with a range of special needs, which include severe learning difficulties, profound and multiple learning difficulties, and pupils at the vulnerable end of the range of moderate learning difficulties. C has enjoyed support from the appellant's social services department in the form of home visits from support workers, and also has had day visits and overnight stays at the Chiltern Resource Centre. That is a centre run by the charity Barnardos and part-funded by the social services department.[4]C had been attending that centre for some eight years. It was, however, under threat of closure due to budgetary constraints affecting the appellant. The appellant's proposed provision in the event of a closure of Chiltern was to provide respite care at St Nicholas House. This institution currently caters for 15 children upon a rotating basis. It is an institution which provides care, but it is agreed between the parties that it does not provide any educational facilities. The proposal of the first respondents, namely Prior's Court School, is an independent school which was opened in 1999 for pupils with a diagnosis of autism in the age range of 5 to 16.[5]The history of the proceedings before SENT may be summarised as follows. The disputed provisions in relation to C were set out in a statement of special educational needs dated 24th January 2001. The statement essentially provided for C to continue to be educated at Bishopswood School, with supplementary educational provision. Under the heading of "Non-educational needs and provision" respite care was to be provided at Chiltern. Mr and Mrs M appealed against the content of parts 2, 3 and 4 of the statement, pursuant to section 326 of the Education Act 1996.[6]On 1st May 2002 the matter came before SENT. When it considered the evidence available to it on that date, the tribunal concluded that it could not continue with the hearing and reach a determination on the basis of the existing evidence. In explaining that conclusion the tribunal said as follows:
"In summary, the parents' case is that C needs specialised education with other autistic children in a residential setting, receiving structured teaching and related support throughout the waking day. Mr and Mrs M did not consider that C's current school - Bishopswood Special School which is maintained by the LEA - can provide what C needs, mainly because the school day ends about 3.15pm and C needs a specialised and structured curriculum outside those hours. "
The LEA's response was that Bishopswood School is catering adequately for C's needs now and he is making progress. It was accepted by the LEA that C needs a structured programme after school hours, and this was offered for him in the form of respite care from the county's social services department. C has been receiving such support until now at Chilterns Resource Centre, but in the letter we admitted as late evidence it was made clear that, because of budgetary constraints, the centre was scheduled for closure. No date has been set for this, but it will probably not be available to C for much longer. "A place had been offered in August 2000 for C by the county's social services department at St Nicholas House in Oxford. This is a residential unit with four long-term places - all of which we were told are currently full - and four other places, where children can stay on a weekly or other basis as appropriate. "The LEA's witnesses, namely C's head teacher Ms Northfield and the LEA's educational psychologist Mrs Meyers, could not give us much detail about St Nicholas House, either as regards staffing programmes for the children or as to a whether a place was currently available there for C. "We therefore reluctantly concluded that we were unable to make an informed decision on the information we had before us. We accordingly adjourned the hearing for such information to be obtained."[7]The tribunal gave directions which included the obtaining of further information. This included information as to whether a place for C would currently, or in the very near future, be available at St Nicholas House, and if not, what other alternatives there might be; as to St Nicholas House, full details of the provision on offer, the staffing and expertise, whether specific programmes are designed for the children, and if so, by whom. If St Nicholas was not available, similar information about any other appropriate respite care unit, and costings, whether at St Nicholas House or elsewhere. The tribunal sought confirmation that the parents' educational psychologist, namely Mr Reid, would be afforded full facilities to visit and inspect St Nicholas House, or any alternative, as soon as possible so that he could report in writing to the tribunal office before the next hearing. The tribunal added that they appreciated that Ms Rodway, of the appellant, did not have the power to guarantee delivery of any of the above information, but asked her to do her best nevertheless to provide it. Ms Rodway is the education officer with the appellant, who was responsible for C's educational choices. She was present at the hearing on 1st May, as she was at the concluding day's hearing on 10th June 2002.[8]Before the first hearing, SENT had been provided with, and had watched, a video recording illustrating C's behaviour whilst at home. Ms Rodway was not actually a witness at either hearing. The procedural rules, it should be said, restrict the number of witnesses normally allowed. But in a statement for the purposes of this appeal, dated 15th July 2002, having recited the fact the tribunal had seen the video, Ms Rodway continued as follows:
"Quite early on during the hearing on 1st May, the Chairman commented about the difficulties faced by the Ms, and in particular Mrs M. He said, looking or gesturing towards Mrs M across the table, "
Look at Mum (he may have said 'mother'), she's exhausted, she needs help (he may have said 'help of some sort'). These may not have been his exact words, but they were very much along those lines. "I would not normally have attached much significance to these words, but the course of the hearing made them quite significant. "It became plain during the course of the day that the SENT were particularly concerned about the level of social services provision that could be made for C and his family and in particular whether the Council could offer a residential facility for him. Our counsel submitted that this was not relevant to the question of what educational provision should be made for C, but said that the Council would try to provide that information as the SENT wanted it."[9]As to the adjournment, Mr Friel, on behalf of the first respondents, says that they were upset that the appellant should have been given a further opportunity to put its house in order, but did not actively resist the adjournment despite the worry and distress that it brought to them. Mr Oldham, on behalf of the appellant, from a different perspective submits that the reasons for the adjournment and the circumstances under which it was directed demonstrate an error of law into which the tribunal was allowing itself to fall. I shall return later to that issue.[10]Following the adjournment, the requested information about St Nicholas House and other evidence relevant to this and other aspects of the case were produced without objection to SENT, and were taken into consideration by the tribunal at the adjourned hearing. I do not think it would assist to set out all comprehensively all the material which SENT eventually had before it, but it included oral evidence from Mr Heald, described as a director of children's services, and temporarily in charge of Prior's Court School pending the arrival of a new head teacher. Ms Northfield, the head of Bishopswood School, gave evidence. The tribunal also had the benefit of written and/or oral evidence from Mr Reid, the educational psychologist instructed by the first respondents, and Mrs Meyers, the appellant's educational psychologist. Mr Hassall, a consultant clinical psychologist with the Oxfordshire Learning Disabilities NHS Trust, provided a written report which had been obtained by the appellant's social services department, and which was before the tribunal.[11]As regards the statement of special educational needs itself, a measure of agreement had been reached between the appellant and the first respondents as to changes to parts 2 and 3 of the statement. That still left significant issues between the parties, some of which are relevant to this appeal. In particular there were two paragraphs of part 3 of the statement under the heading "Educational provision to meet needs and objectives", which the first respondents asked the tribunal to alter by substituting their own suggested wording. Two paragraphs in particular need to be mentioned. The original wording of paragraph 2 read as follows:
"C needs adult oversight all the time he is in school, both to ensure his attention but also for health and safety reasons. Currently, C has a 1:2 ratio. C's autistic behaviour needs deliberate management. Outside consultants, such as the Advisory Headteacher for Autism need to be involved. There needs to be a common approach to his behaviour management in school. Such topics as C's attachment behaviour, his obsessive behaviour and his repetitive behaviour should be managed in a consistent and negotiated way."
[12]The alteration in wording proposed by the first respondents read as follows:
"C needs adult oversight all the time both to ensure his attention but also for health and safety reasons. Teacher pupil ratio of one teacher to six pupils plus a high level of classroom assistance support to ensure delivery of individual and small group programmes on a daily basis. All staff to have significant training and expertise in meeting the needs of children with autism."
[13]The original paragraph 4 read:
"There should be an explicit behaviour management programme, which needs to address the following issues:- Reducing C's anxiety. Deciding on the level of assertiveness that would be needed to bring C's behaviour under control. Describing rewards which should be made explicit and applied rigorously. Deciding on sanctions which again should be systematic and applied rigorously."
[14]The new wording for that paragraph proposed by the first respondents was:
"All programmes in connection with C's self-help and independent skills, communication, amelioration of his aggressive challenging behaviours and obsessional behaviours, socialisation, imaginative and imitative play and cognitive development to be delivered throughout his waking day within a consistent and structured environment."
[15]In referring to the evidence it had before it, SENT mentioned the following matters, which are of significance to this appeal. It mentioned that the tribunal had heard from Mrs Ainsworth, the service manager with the social services department, to the effect that there was currently no place available at St Nicholas house. She had said that there was one child on the waiting list. The social services department did have some family-based respite care places, but Mr M said that they had been on the waiting list for family-based respite for six years with no such offer. The tribunal continued:
"Summarising the reports about St Nicholas House, the SSD report described a caring environment where activities were available to the children in residence. There were extensive grounds where pupils could play, but always under supervision. Mr Reid's critique was to the effect that, whilst he accepted that St Nicholas House was a caring environment, it did not offer the structured 24 hour programme which he said was currently necessary for C."
Mr Reid being an educational psychologist, it is clear that by "structured 24 hour programme" he meant an educational programme. The tribunal continued:
"Mr and Mrs M's concerns about St Nicholas House included the fact that there were constant staff shortages, there would be a large turnover of children."
The tribunal then went on to refer to thier other concerns, the most important of which was:
"The fact that he would be cared for at school, at St Nicholas House and by other staff from SSD, all with the necessary transport in between involved; this would not represent the continuity or education which C currently needs."
[16]It is to be noted that the evidence of Ms Northfield, Mr and Mrs M, and Mr Reid all dealt with education outside school hours, and the ability or inability of St Nicholas House to provide it. However, having summarised those matters, SENT then referred to issues relating to the social services department and its budget, upon which, again, Mr Oldham relies in this appeal:
"In the late evidence just referred to, we read that the SSD's budget is under pressure; cuts of 14% have to be found and provision for children is one of the target areas. Mrs Ainsworth could not give a date when such cuts will be implemented, or the form they will take."
[17]The tribunal then went on to set out relative costings. I need not recite these in detail. It suffices to say that there were included in the comparative calculations for C continuing at Bishopswood as against going to Prior's Court the cost of the social services department support under the former option.[18]The inclusion of the social services department costing calculation is said by Mr Oldham either to be an example of the tribunal misdirecting itself by the inclusion in its considerations of an immaterial fact; alternatively, he says that its inclusion is at least an indication that the tribunal's approach to the case was wrong in law.[19]I have referred to Ms Northfield as having given evidence about C's education. In a letter of May 2000 Ms Northfield had said that whilst her school, Bishopswood, could cater for C's special needs during school hours, this would not enable him to learn enough independent skills or modify his behaviour sufficiently to enable his continued involvement with his family. He required education outside the normal school day, and Ms Northfield and the school supported the parents' application for residential provision. In oral evidence at the hearing Ms Northfield had explained that this would be true of most autistic pupils; that is to say, education outside the normal day would be desirable for them. She said that she still thought that C would benefit from education outside school hours, and she informed the tribunal that C was broadly at the level of attainment of a four year old at the present time. At the time of the tribunal hearing C was 13 years old.[20]Finally, with regard to SENT's decision, I need to refer to the crucial section, "Tribunal's conclusion with reasons". Amongst the matters set out by the tribunal were:
"Part 3 • We agreed to replace the paragraph about adult oversight for C with the wording asked for by his parents. • We similarly agreed to the wording required in respect of a behaviour management programme, to replace the existing wording in the statement."
[21]Thus, the tribunal were accepting the new proposed substituted paragraphs 2 and 4 of part 3 of the statement which I have already quoted. Under part 4, its conclusion was as follows:
"We have decided after very careful consideration that, although everyone currently working with C at school and from the SSD had shown care and sensitivity to his needs, we are not satisfied that the mixed programme he is receiving from various sources is currently meeting these needs. He is a severely autistic boy, currently operating at the level of a 4 year old. Whilst we accept that he is well managed at school, we equally noted that his behaviour at home is very disturbed and causes great distress to his family. Only in the setting of a school where a 24 hour curriculum is available can C in our judgment expect to make any significant progress. He is nearly thirteen and a half years old and not a great deal of time is left of his school days for such a programme to be implemented for him. "
It is therefore our decision that Bishopswood School, coupled with any form of respite care currently available, is not appropriate for C, but that Prior's Court does represent the right place for him now. We have some concerns about the school, particularly as regards the absence of a head teacher until August and concrete programmes for integration with a wider peer group, but these concerns do not override our basic decision. We hope the provision of a wider peer group can be attended to in C's interests when he attends the school. "It follows from our decision about placement that the question of costing is not a relevant consideration. We noted the evidence of Mrs M to the effect that the family would be responsible for C's transport costs to and from Prior's Court and we have therefore included this as a condition of his placement at that school."[22]The tribunal then went on to say that careful consideration had been given to the appeal papers and all the evidence at the hearing, and regard had been had to Chapter 8 of the Code of Practice. Part 4:
"Reference to Bishopswood School is to be deleted and replaced by the following:- 'Placement at Prior's Court School as a boarding pupil, upon condition that Mr and Mrs M are responsible for all transports costs for C to and from the school.'"
[23]As regards the statutory framework applicable to the case, a brief summary and extracts of the relevant provisions are all that is necessary. The relevant provisions of the 1996 Act are as follows:
"324 Statement of special educational needs (1) If, in the light of an assessment under section 323 of any child's educational needs and of any representations made by the child's parent in pursuance of Schedule 27, it is necessary for the local education authority to determine the special educational provision which any learning difficulty he may have calls for, the authority shall make and maintain a statement of his special educational needs. (2) The statement shall be in such form and contain such information as may be prescribed."
The form and information have been prescribed by regulations which I need not quote. "(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). "(5) Where a local education authority maintain a statement under this section, then- (a) unless the child's parent has made suitable arrangements, the authority- (i) shall arrange that the special educational provision specified in the statement is made for the child, and (ii) may arrange that any non-educational provision specified in the statement is made for him in such manner as they consider appropriate."[24]Section 326 provides for an appeal against the local education authority's decision. Chapter 8 of the Code of Practice, to which I have already referred, reads, so far as is relevant, as follows:
" Part 2: Special educational needs (learning difficulties) 8.32 Part 2 of the statement should describe all the child's learning difficulties identified during the statutory assessment. It should also include a description of the child's current functioning - what the child can and cannot do. The description in Part 2 should draw on and may refer to the professional advice attached in the appendices. Where the LEA adopt that advice in their description of the child's learning difficulties, they should say that they have done so. But merely stating that they are adopting the advice in the appendices is not sufficient. The advice received may contain conflicting opinions or opinions open to interpretation, which the LEA must resolve, giving reasons for the conclusions they have reached. All advice must be considered and appended to the statement.

(b) "

Part 3: Special educational provision 8.33 Once a child's special educational needs have been assessed and set out in full in Part 2, the LEA must specify, in Part 3, the special educational provision to meet those needs. The key objective in specifying provision is to help the child to learn and develop. " Part 5: Non-educational needs 8.43 Part 5 should set out any non-educational needs of the child which the LEA either propose to meet or are satisfied will be met, by arrangement or otherwise, by the health services, social services department or some other body. " Part 6: Non-educational provision 8.44 Part 6 should set out the non-educational provision which is required to meet the needs identified in Part 5 and which the LEA either propose to make available or are satisfied will be provided by the social services department commissioned by the health authority in discussion with the Primary Care Group or Primary Care Trust for the area, or by other providers."[25]I now come to the submissions of Mr Oldham, on behalf of the appellant. Whilst these were developed with skill and by reference to authority, they were in their essence simple:(1) that the tribunal erred in deciding upon Prior's Court School on the basis of grounds other than C's educational needs, in that it was improperly influenced by his care needs, which were the subject of a separate duty placed upon the social services department and therefore not properly to be taken into account by the tribunal;(2) part 3 of the statement, even as amended by the tribunal, did not specify 24 hour educational provision as being necessary for C's identified educational needs; and(3) the decision about placement was not supported by any adequate reasons. Mr Oldham was careful not to go so far as to submit that the decision itself reached by the tribunal was irrational in the sense that no reasonable tribunal could have arrived at it. He submitted that the errors in law and the absence of proper reasoning to support the decision meant that it was fatally flawed. He said that it should therefore be quashed and the matter remitted for consideration by another tribunal. Mr Oldham prayed in aid the remarks of the tribunal reported by Ms Rodway as going beyond mere sympathetic comment, and as indicating that it was unduly swayed by the undoubted difficulties of Mr and Mrs M in caring for their son.[26]Mr Oldham further relied on the references in the tribunal's summary of the facts to matters which included costs which were the responsibility of the social services department of the appellant, not the education department. He submitted that this erroneous thinking was carried through to the conclusions with their reference under paragraph C to C's disturbed behaviour at home and the distress that caused to his family. Mr Oldham says that these aspects of the decision showed that the tribunal was unduly influenced by C's non-educational needs. He points out that the Education Act 1996, section 324(5), and the statementing process itself makes a clear distinction between the two aspects of need; for example, a local education authority is required to arrange special educational provision, but has a discretion as to whether or not to arrange non-educational provision.[27]Mr Oldham relied on B v Isle of White Council [1996] ELR 279, a decision of McCullough J in this division. In that case the court held that on the particular facts before it, the tribunal was entitled to conclude that occupational therapy and physiotherapy were not an "educational provision". The local education authority had accepted that in some cases they could amount to educational provision, but contended that in that case they did not, since they fell at the medical, and therefore non-educational, end of the needs spectrum.[28]Mr Oldham also referred to a series of decisions of the Court of Appeal, which included Richardson v Solihull Metropolitan Borough Council and Hereford and Worcester Council v Lane , as well as other cases all heard together, [1998] ELR 319 , and finally Shead v Somerset County Council [2002] EWHC 1808, a decision of Sir Richard Tucker in this court. The latter case turned upon the interpretation of section 9 of the 1996 Act, and the meaning in that section of the expression "unreasonable public expenditure". The judge held that public expenditure in that context meant that of the local authority's education department, not of the public authority as a whole. That decision, submits Mr Oldham, who appeared in that case, demonstrates the error of the tribunal's approach in the present case in taking into account the expenditure of the appellant's social services department in the course of its factual summary.[29]Mr Friel, on behalf of the first respondents, draws my attention to the significant overlap which has been recognised by the courts between educational and other provision. He submits that a broad definition of education is appropriate, especially in a case such as that of C, who requires significant extra measures as a result of his severe disability to enable him to achieve the relatively limited educational attainment of which he is capable.[30]Mr Friel relies on London Borough of Bromley v SENT [1999] ELR 260 , especially the judgment of Sedley LJ from page 290D to 296C (Mr Oldham later pointed out that in that case, unlike the present case, the tribunal had made a specific finding as to educational need in relation to the matter disputed, which, submitted Mr Oldham, distinguished that case from the present one).[31]Mr Friel relied on R v Lancashire County Council, ex party M [1989] 2 FLR 279, especially the judgment of Balcombe LJ in the Court of Appeal, page 301F-H and 302G-H.[32]Mr Friel further submitted that the legislation imposed a positive duty on the local education authority to give its attention to non-educational needs in co-operation with the social services department. He referred specifically to the passages of the Code of Practice from which I have already quoted. He submitted that the tribunal was therefore fully justified in requesting information about how any non-educational needs would be met.[33]I come now to my findings on this appeal. The starting point is Mr Oldham's submission that SENT's decision was not in itself irrational, but rather invalidated by its erroneous approach. In considering the context of the tribunal's findings, it is necessary to have regard to the nature and extent of the evidence which was capable of justifying its decision, particularly where that evidence was either agreed or not disputed. Essentially, it was not in issue that C, though 13 years old, was functioning at the level of a 4 year old. His situation can perhaps most usefully be described by referring to the evidence of Mr Reid:
"C clearly shows the triad of impairments associated with an autistic spectrum disorder; he has severely impaired communication skills, impaired social skills and difficulties in abstract concepts and, by extension, imaginative and limited play. There seems to be no reason why people should continue to refer to him as having 'autistic tendencies'. The formulation has significant implications for prognosis and placement; it tends to be a term which is used for children who have a global developmental delay and who show, in association with this, stereotypic behaviours ... The evidence clearly is that C's primary area of need relates to his autism and that his learning difficulties are associated with his autism; this is for example demonstrated by the discrepancies in relation to his cognitive functioning and again has clear implications for prognosis. 75% of autistic people have severe learning difficulties; C is one of those small group of children who have complex learning difficulties associated with autism and for whom autistic specific provision is clearly indicated."
[34]Up to this point Mr Reid's evidence was not effectively in issue. However, the following passage was not, or not necessarily, accepted by the appellant:
"Coupled with the need for high levels of expertise and training, is the need for a highly consistent approach throughout C's waking day. There are major difficulties in implementing a communication or social skills programme, or indeed having him conform to expectations in relation to independence skills, when he has three different settings to contend with; home, school and respite care. There are simply not enough opportunities to implement the consistent programmes which he requires in major areas at home - given the need, as identified above, to have him dressed at a specific time for a school bus to collect him, having few opportunities at school to practice dressing and undressing and having different requirements in relation to skills such as eating and toileting. It is therefore essential, in my view, that he has a programme, which can be applied consistently by staff throughout his waking day ... "
The Educational Authority has identified the need for a behaviour modification programme in relation to these behaviours. Research would suggest (as reviewed by Howlin) that behaviour modification with autistic children simply is not effective... "There are also very significant pressures placed upon the family; it is essential that these are eliminated, not only for the individual members of the family but also if the home is to become somewhere where programmes devised and implemented elsewhere, are to be positively reinforced. The family home, under pressure and stress, is not an environment where these measures can happen. "I would heartily endorse the parental request for residential placement at a school such as Prior's Court which is autistic-specific, can offer a range of therapies and reinforcement which C requires, and which will recognise his complex needs and the strengths he undoubtedly has and which can be worked with. I would anticipate that he would make significant progress within such an environment." (Incidentally, whilst not relevant to this appeal, the view expressed in the last sentence appears to have been borne out by subsequent events).[35]The appellant, whilst not accepting the latter part of Mr Reid's opinions, does accept as part of C's special educational needs a behaviour management programme. This was the case under part 2 of the statement before it was amended, as well as after. The relevant quotation from part 2 of the statement is as follows:
"C has the following special educational needs ... C needs a behaviour management programme, to reduce anxiety, that names rewards/sanctions, that will be systematic and explicit, and applied rigorously by all care givers."
[36]It may be said that disruptive behaviour can in any normal situation always be an obstacle to education, but it is clear, in my judgment, from the context that this case did not involve a normal situation. It is accepted that C's learning difficulties were severe. His education and development were intimately bound up with his behaviour. His progress depended, therefore, on the provision of a structured scheme to enable the necessary education to take place by inter alia managing C's behaviour. Whilst part 2 recognised that need in the passage just cited, and recognised it as specifically applicable to all care givers, I accept Mr Friel's submissions that part 3, as originally drafted by the appellant, was deficient in that it did not make any explicit provision for such a programme outside school hours.[37]There was other evidence available to the tribunal to support the proposition at paragraph 3 of the appellant's own statement from which I have just quoted, and which defined C's needs for a programme out of school. There was before the tribunal evidence in the form of a statement from the senior residential social worker from Barnardos, who was responsible for the Chiltern Centre on the appellant's behalf, Marian Lee. Her statement included the following:
"Because of his need for consistency and inflexibility, disjointed elements to his care could prove very damaging for him. The present arrangements for C's development are inadequate despite doing our very best for him, as we cannot offer the type of provision he needs, i.e. a 24 hour specialised consistent, seamless approach. He is only just holding his head above water. Chilterns acts as an extension to home, to give his family a short break. It is not an educational establishment and the young people we cater for are vulnerable, have physical and/or learning difficulties and are not perceived as having the kind of challenging and anti-social behaviour C exhibits."
[38]She then goes to describe how C's difficulties have escalated with time, compounded by the lack of progress in communication. She then continues:
"Unfortunately within County there is no alternative suitable provision for young people like C and given that we are only just coping, it is a concern to us that his management is becoming increasingly specialised and outside our brief."
[39]She then goes on to speak of difficulties encountered by the interruption of C's day by the need to take him by taxi to the centre. She describes the cycle of negativity. She says:
"Even the taxi journey of five miles (just ten minutes) from school to Chilterns is a constant source of anxiety for him. Something as simple as a change in route can provoke an assault on the taxi driver and escort when he arrives at his destination. Recently staff had to intervene in the car park when C was kicking, punching and spitting at the escort who was unable to defend himself."
[40]She then continues by saying that in the planning of future provision, frequent, lengthy journeys would be detrimental to C's safety and that of any occupants in his taxi. She concludes:
"I cannot over-stress the importance of considering very carefully his next provision, given his very complex and demanding needs as it is fundamental and crucial to his future development and safety to him and all these around him."
[41]There was then a statement from Mr Hassall, the clinical psychologist. He said, among other things:
"I would therefore support the view that C needs a very specialised environment, both during school time and outside school hours. This is not simply a matter of setting up a 'behaviour modification programme' and expecting a change of behaviour to follow from some degree of contingency management. I note the comments of Albert Reid, in his psychological assessment dated 9.5.01, that children with autism have difficulty in generalising learning from one situation to another and that simple behaviour modification is often not effective with such children. I therefore think that the arrangements for C need to reflect the fact that any effective management plans for helping him develop more socialised behaviour would need to be implemented in an environment designed for this purpose. Additionally, for children with autism, particular attention needs to be paid to encouraging language comprehension and expressive communication, which is a particular area of difficulty for these children and frequently contributes to their challenging behaviour."
Then the psychologist continues, crucially:
"To be effective, communication programmes need to be implemented throughout the day in a consistent manner, not just during school hours. Specialist training is also necessary for staff carrying out this work. "
I very much hope therefore that it will be possible for C to be able to attend Prior's Court School, as this seems likely to offer the best available environment for his needs. It also offers the advantage of being close enough to his home to allow him to have weekends at home and to maximise the opportunities for contact between his parents and the school staff."[42]In my judgment, in the light of the evidence I have just quoted, the last examples of which come from practitioners or experts instructed or engaged by the appellant, there was strong, if not overwhelming, evidence that C required a management programme that was "systematic and explicit and applied rigorously by all care givers", as part 2 of the statement stipulated. Crucially, it was a management programme that, as part 2 made clear, was an "educational need". That is the context in which Mr Oldham's submissions to the effect that the tribunal erred in its approach to the law fall to be considered. In that context, it is, in my judgment, plain that the reason why the tribunal adjourned at the first hearing was in order that the appellant should have the chance to show that St Nicholas House, or any alternative institution, was capable of providing beyond school hours the kind of educationally suitable and structured programme which C's needs demanded. If for no other reason, the intention of the tribunal was made clear by the direction that Mr Reid should have full facilities to visit and inspect the project; Mr Reid's expertise, of course, being in educational psychology.[43]The recognition that Ms Rodway could not compel delivery of the information because the project was controlled by the social services department is, in my judgment, irrelevant. It was clearly the intention of the tribunal to give the appellant the opportunity to show that the project was one consistent with C's educational needs. Further, when the tribunal set out the evidence on which its conclusion and findings were based, it relied on matters which again related to C's educational needs.[44]In my judgment the inclusion of a figure for the cost of the social services department support in that part of the decision does not indicate, still less constitute, an error of law. The tribunal in its findings at paragraph E states that the costings were not a relevant consideration in the decision itself.[45]In addressing part 3 of the statement, the tribunal specified, in substituting a new paragraph 4, that there should be a delivery "throughout his waking day within a consistent and structured environment" of programmes for C, these programmes consisted very substantially of educational provision.[46]In addressing part 4, the tribunal finds:
"only in the setting of a school where a 24 hour curriculum is available can C in our judgment expect to make any significant progress"
. These last two findings make it abundantly clear that the appropriate programmes needed to engage C throughout his waking hours, and thus gave rise to the need for a 24 hour curriculum.[47]The findings, in my judgment, underpin the decision to direct placement at Prior's Court. They left, in reality, no alternative in the particular factual context of this case other than a boarding school provision. The contrast with, for example, the facts in the case of Lane is clear in this regard. The reference at paragraph C of the conclusion to C's disturbing and distressing behaviour at home did not, in my view, indicate any error of law on the tribunal's part, and does not affect the lawfulness of the findings.[48]There is therefore, in my judgment, no substance in the suggestion that the chairman of the tribunal's sympathetic initial remarks at the first hearing, or the adjournment of that hearing, form any basis for arguing that the tribunal allowed itself to stray from its proper task.[49]I conclude that the tribunal directed itself correctly. It did not, in its reasons, explore in any detail or expressly the distinction between educational and non-educational provision. Doubtless Mr Oldham made his points about that before the tribunal eloquently, but the reality was, and is, that the evidence on the topic was virtually all one way, not only from the first respondents, but from much of the evidence presented by the appellant as well. It pointed to the failure, despite some limited recent improvement, of the existing educational provision, and the need for a significantly more extensive and effective arrangement. It pointed to the need for a so-called 24 hour curriculum. SENT was, in my judgment, entitled to conclude that the placement at Prior's Court was the best and, indeed, the only method for delivering this. It did not err in its approach to the matter, and properly analysed, its reasons support the approach which it took.[50]For those reasons the appeal must be dismissed.[51]MR FRIEL: My Lord, I would apply for the costs. Both parties have had discussions, and this is a case in which it is agreed, because there are some complex issues relating to costs, that it should be an assessment of costs. So I will apply on behalf of the respondents that the costs be assessed. I am grateful, my Lord.[52]MR OLDHAM: I do not resist that.[53]MR JUSTICE GIBBS: Very well. I make costs in favour of the first respondents' detailed assessment. Thank you very much.

Cited in 1 later judgment