M v Special Educational Needs and Disability Tribunal [2003] EWHC 482 (Admin)

Case No CO/5577/2002[2003] EWHC 482 Admin
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Tuesday, 4th March 2003
Strand
London WC2
B E F O R E:
MR JUSTICE MAURICE KAY
M
(CLAIMANT)
-v-
THE SPECIAL EDUCATIONAL NEEDS AND DISABILITY TRIBUNAL
and
THE LONDON BOROUGH OF BRENT
(DEFENDANTS)
Computer-Aided Transcript of the Stenograph Notes of
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190 Fleet Street London EC4A 2AG
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(Official Shorthand Writers to the Court)
MR DAVID WOLFE (instructed by Levenes, Wood Green, London, N22 8HF) appeared on behalf of the CLAIMANT
MR PETER OLDHAM and MR JULIAN MILFORD (instructed by London Borough of Brent Legal Services, Wembley, HA9 9HD) appeared on behalf of the DEFENDANT
J U D G M E N T
(As approved by the Court)
Crown copyright©
Between
MClaimantSpecial Educational Needs and Disability TribunalDefendant
[1]MR JUSTICE MAURICE KAY: This is a statutory appeal from a decision of the Special Educational Needs and Disability Tribunal. The case concerns a child, to whom I shall refer as "D". He is a high functioning child with no cognitive difficulties. However, it is common ground that he has special educational needs within the meaning of Part IV of the Education Act 1996. The relevant local education authority is the London Borough of Brent. The local education authority makes provision to meet D's needs pursuant to a statement of special educational needs. D has Attention Deficit Hyperactivity Disorder ("ADHD") and difficulty with fine motor skills.[2]His early education took place in a mainstream primary school in North London. It was not a success, and a point came when he left that school. He has not been in mainstream education since that date. However, he has been attending a specialist unit known as the New Learning Centre at the expense of his parents. They are impressed with his progress there and wish him to continue there.[3]The statement of special educational needs in this case was produced by the local education authority on 17th April 2002. It is structured in accordance with the statutory requirements. Part 2 of the statement specifies special educational needs under headings "(i) What the child can do", "(ii) A significantly greater difficulty in learning than the majority of children of the same age", "(iii) A medical condition which prevents/hinders the child from making use of educational facilities", and "(iv) Conflict in advice", which referred to the view of a consultant child psychiatrist, who was not then of the view that D was suffering from ADHD, but thought that he was showing behavioural problems which were being repeatedly reinforced because of the attention that he gained from such behaviours. A consultant paediatrician, on the other hand, thought that there were strong suggestions of ADHD.[4]Part 3 of the statement dealt with the special educational provision being put forward by the local education authority. The material part of it appears under the heading "Educational provision to meet needs and objectives". It stated that provision was to be made by the local education authority:
"To provide a placement for D in a mainstream school with funding equivalent to 0.6 (19.50 hours) learning support to meet the needs as specified in Part 2. This provision is subject to an initial 6 monthly review and annually thereafter."
[5]Part 4 of the statement then went on to deal with the placement under the heading "Appropriate school or other arrangements". It referred to a placement at Kensal Rise Primary School, subject to review.[6]Upon the promulgation of that statement, D's parents appealed to the Tribunal. The basis of the appeal was set out in a letter from M, D's mother. It took issue with the contents of Part 2 of the statement, and contended that the statement should be amended so as to refer to:
"ADHD where he is very impulsive and distractible. He is hyperactive with poor social skills. He has a very intense, sensitive temperament and quickly becomes upset, angry, anxious, over-excited and frustrated. "
Dyspraxia which affects his poor fine motor skills, poor organisation, sequencing and lack of attention to detail. "High intelligence. D is a high functioning child with no cognitive difficulties who needs to be stretched. "He responds well to praise and positive reinforcement. He learns in a quiet classroom with consistent strategies reinforced at all times."[7]The grounds of appeal to the Tribunal also took issue with Part 3 of this statement, contending that there should be added to the special educational provision "strategies to address his dyspraxia, academic challenge". Then, in relation to Part 4, educational provision, the contention was that the statement should be amended so as to state: "D needs a very small structured environment with highly skilled and experienced specialist teachers who can create and maintain an extremely positive, extremely firm and extremely consistent environment, individual work, social skills training in small groups, very tight structure and close, full-time supervision".[8]And:
"D needs a small school with highly trained staff who can meet his needs of ADHD, Dyspraxia and High Intelligence. Until such time as an appropriate placement can be found he should remain at the New Learning Centre"
. The letter went on to concede that D will in due course need full-time education in a school. However, the essence of the case being advanced by M was that for the time being D should remain at the New Learning Centre.[9]The local education authority set out its response to the appeal in a letter dated 6th September 2002. Essentially, it contended that Parts 2, 3 and 4 of the statement were satisfactory, and no detailed alternative suggestions were advanced.[10]There was a hearing before the Tribunal on 1st November 2002. The Tribunal reserved its decision, and promulgated it a week later on 8th November 2002. So far as Part 2 of the statement was concerned, the Tribunal acceded in part to M's case, and ordered that Part 2 should, to a considerable extent, reflect what had been advanced by M, except that in relation to the sentence on dyspraxia. The Tribunal decided that the appropriate wording should be:
"D has mild dyspraxia which predominantly affects fine motor skills and in particular hand writing"
. Thus, it omitted reference to difficulties with organisation, sequencing and attention to detail. The Tribunal did not accede to M's proposals so far as Part 3 of the statement was concerned, and it dismissed the appeal in relation to Part 4. In other words, it accepted that, following a period of induction, D should be educated at Kensal Rise.[11]In the course of its decision, the Tribunal set out facts under ten numbered paragraphs, recording that it was the view of the parents and Dr Weinstein, their expert, that the period at the New Learning Centre had been of great benefit to D, but that many of his difficulties remained. M stated that he was not yet ready to move from that very structured environment, where he follows an individual programme. Dr Weinstein's view was that it would be very much against D's interests to move him from the New Learning Centre, although he could foresee that such a move might be possible in some months time, depending on progress.[12]Under the heading "Tribunal's conclusions, with reasons", the Tribunal stated the following at pages 22 to 24 of the bundle:
"a. D has benefited from the therapeutic curriculum at The New Learning Centre and the time he has spent there has enabled him to rebuild his sense of self worth and develop a calmer, more controlled and reflective response to situations and individuals. The content of the curriculum, together with the best endeavours of M, do not enable D to have access to the National Curriculum. This is an important consideration, particularly given his age ... his ability and the fact that he has now been out of full time education for almost 18 months. There are very limited opportunities at The New Learning Centre for D to begin to integrate with other children and begin to extend his social and personal learning into a wider context. b. We have been asked to specify an 'Education Otherwise' package in Part 4 of D's statement, The New Learning Centre being nominated to provide that package. For the Tribunal to make such an order, it must be satisfied that it is not appropriate for D to be educated at a school. We bear in mind that M, Dr Weinstein and The New Learning Centre have all indicated that the placement there is a short term, or transition, measure and that the aim is for D to have a school place in due course. c. Our first task is to investigate whether D could be educated in a school. d. We have necessarily paid attention to D's educational history thus far ... e. On the basis of the evidence we heard regarding the staffing, resources and organisation of Kensal Rise Primary School from the content of its OFSTED Report and the evidence of its head teacher, we consider that it should be able to meet D's needs, and also note that Mrs Page [the head teacher] is very aware of the extent of the difficulties D had in his earlier mainstream place. Dr Weinstein was impressed with Kensal Rise Primary School, and with the head teacher, when he visited with M and he initially thought that a start there in September 02 for D would be appropriate. He is now of the opinion that it is not a suitable environment for D at the present. Mrs Page demonstrated to us a firm commitment and a flexible approach to meeting the needs of her pupils with special educational needs and to ensuring that the provision for them matched their needs. We were also impressed by the caution of her statement that she expected that the school could meet his needs, but could not guarantee it. She also said that she would be the first person to say if the placement was not working. f. We are accordingly not satisfied that it is inappropriate for D to have a school named for him, as we are satisfied that it is likely his needs can be met at Kensal Rise Primary School. g. We do not question that The New Learning Centre may have provided a valuable breathing space for D but it is not a substitute for the school placement that D is entitled to."
[13]The next paragraph went on to emphasise the need for the transition to Kensal Rise to be very carefully planned. The Tribunal decided to make some alteration to Part 2 of the statement, expressing a preference for M's suggested wording, and it made an amendment to Part 3 in relation to the transition period. I have already referred to those textual alterations and the overall outcome of the decision. It is against that decision that M now appeals.[14]Before dealing with the grounds of appeal, it is necessary for me to refer to some of the statutory provisions which are contained in Part IV of the Education Act 1996. Section 323 makes provision for the assessment of a child's educational needs by the local education authority when it is of the opinion that the child falls, or probably falls, within subsection (2). A child falls within that subsection if:
"(a) he has special educational needs, and (b) it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for."
The rest of section 323 deals with the service of a notice on the child's parents, and the taking into account of any representations made by them.[15]Section 323(3) provides that where a local education authority have served a notice under subsection (1) and remain of the opinion, after taking into account any representations made, and any evidence submitted to them in response to the notice, that the child falls, or probably falls, within subsection (2), "they shall make an assessment of his educational needs".[16]Section 324 is headed "Statement of special educational needs". The material parts of it are as follows:
"(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. (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, and (c) specify any provision for the child for which they make arrangements under section 319 and which they consider should be specified in the statement."
[17]Section 319 provides as follows:
"(1) Where a local education authority are satisfied that it would be inappropriate for- (a) the special educational provision which a learning difficulty of a child in their area calls for, or (b) any part of any such provision to be made in a school, they may arrange for the provision (or, as the case may be, for that part of it) to be made otherwise than in a school."
[18]The other section in the Act to which I should refer is section 9, which states:
"In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State, the local education authorities and the funding authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure."
[19]I now turn to the grounds of appeal to this court. Ground 1: Failure to determine the special educational provision required by D[20]When M set out her case in her appeal to the Tribunal, she stated:
"D needs a very small structured environment with highly skilled and experienced specialist teachers who can create and maintain an extremely positive, extremely firm and extremely consistent environment ... social skills training in small groups, very tight structure and close, full-time supervision."
[21]On behalf of M, Mr Wolfe submits that the Tribunal did not address that contention and gave no reasons for rejecting it. As Kensal Rise is not such a "very small structured environment" with a "very tight structure and full-time supervision", it was essential to determine this issue by reference to Part 3 of the statement pursuant to section 324(3)(b), the specification of the special educational provision to be made, as this would be the key to the issue of appropriate placement in Part 4. It was part of the duty of the Tribunal "to give full and adequate specific consideration to the needs of the child" (per Newman J in E v Flintshire County Council [2002] ELR 378, paragraph 19), and to evaluate the evidence.[22]On behalf of the local education authority, Mr Oldham submits that the entire decision of the Tribunal was essentially a consideration of the debate between the merits of the provision at the New Learning Centre and that at the less structured environment at Kensal Rise. Accordingly, M's case was addressed.[23]In my judgment, Mr Oldham's submission is correct. The Tribunal referred in terms to, "M's view that D is not yet ready to move from that very structured environment where he follows an individual programme". Its conclusion was that, whilst D had benefited from the environment and therapeutic curriculum at the New Learning Centre, it had disadvantages, such as the absence of access to the National Curriculum and very limited opportunities to begin to integrate with other children and to extend his social and personal learning into a wider context. In these circumstances, it cannot be said that the Tribunal failed to address M's case as to what special educational provision was required by D. It clearly had regard to that case and to the expert evidence which supported it. However, it concluded that it was outweighed by other considerations. Ground 2: Misdirection in relation to section 319 of the 1996 Act[24]I have already set out the terms of section 319(1). Mr Wolfe takes issue with the Tribunal's statement that "our first task is to investigate whether D could be educated in a school". He submits that that was a misdirection. It was to put the cart of placement before the horse of special educational provision. He refers to two authorities. In S v Bracknell Forest Council [1999] ELR 51, the parents were contending for a home programme, but the local education authority favoured a special school. The Tribunal decided that the special school was the appropriate placement. Scott Baker J said at pages 53 to 54:
"Did the Tribunal ask itself the correct question in this case? Because if it did it matters not, it seems to me, whether specific reference was made by the Tribunal to any particular section of the Education Act 1996. Examination of the Tribunal's decision shows in my judgment that it clearly did. It set out the pros and cons of the two types of educational provision. It is clear from ... its conclusion that it looked carefully at [the school and home programme] and it did ask itself what was the correct provision for this child. I accept [the] submissions that that is an essential exercise before one goes on to s319. You cannot decide where to provide the provision until you have decided what that provision should be should be. I am unable to accept that the fact that s319 is mentioned in paragraph (a) of the Tribunal's conclusions means it approached matters from the wrong end. Nor do I think a great deal can be made of the reference to what the Tribunal first considered in that paragraph. I am unable to conclude that the Tribunal came to no conclusion on the central issue. It clearly did."
[25]Mr Wolfe submits that the application of the principle there enunciated to the present case illustrates a misdirection. He further relies on the judgment of McCullough J in R v Kingston upon Thames Council, ex parteHunter [1997] ELR 223, where, referring to the question whether the school specified in Part 4 was appropriate to meet the needs set out in Part 3, he stated:
"Rather does it beg the question; it obscures the fact that part 4 cannot influence part 3. It is not a matter of fitting part 3 to part 4, but of considering the fitness of part 4 to meet the provision in part 3."
[26]To some extent there is a link between this ground of appeal and the first ground in that the case for M is that the Tribunal failed to address her proposals, but proceeded to investigate whether D could be educated at school, having identified that as its "first task". In other words, it focused on the Part 4 question of placement without giving any consideration to the special educational provision which D needed. I have already rejected the submission that the Tribunal gave no consideration to M's proposals about special educational provision. In the circumstances, it seems to me that this second ground of appeal can only succeed if the Tribunal did indeed decide on a placement in the abstract before or without regard to its conclusion on special educational provision. It is unfortunate that the Tribunal used the words "our first task" as it did. However, in this, as in any other case, the task of this court is to consider the decision of the Tribunal as a whole, and not to read particular words and phrases as if they were statutory provisions. Before adverting to its "first task", the Tribunal had referred to M's proposals and, in my judgment, it had identified the features which went against them as the appropriate special educational provision. I do not accept that on a fair reading of the decision as a whole the Tribunal misdirected itself by deciding on the placement before the special provision. Applying the principles set out in S and the Kingston upon Thames case, I do not consider that this ground of appeal is made out. Ground 3: Misdirection as to the meaning of "appropriate" in section 319[27]This third ground of appeal is built upon a passage in the judgment of Thorpe LJ in C v Buckinghamshire CountyCouncil [1999] ELR 179, where he said at page 189:
"Clearly the function and the duty of the county council under the Education Act 1996 is distinct from its function and duty under the Children Act 1989. In carrying out its statutory function and duty in relation to a child with special education needs, the welfare of the child is not the paramount consideration. That said, it is clear from s 324(4)(a) of the Education Act 1996 that the LEA has a duty to ensure that a child with special educational needs is placed at a school that is 'appropriate'. It is not enough for the school to be merely adequate. To determine if the school is appropriate, an assessment must be made both of what it offers and what the child needs. Unless what the school offers matches what the child needs, it is unlikely to be appropriate. The assessment of the child's needs necessarily imports elements of a welfare judgment. If there are two schools offering facilities and standards that exceed the test of adequacy, then I would hope that ordinarily speaking the better would judged appropriate, assuming no mismatch between specific facilities and specific needs. Parental preference obviously has a part to play in the assessment of what is appropriate. In a case where there appears to be parity of cost and parity of facilities, parental preference may be the decisive factor."
[28]Relying on this passage, Mr Wolfe submits that it was incumbent upon the Tribunal to compare the provision at the New Learning Centre with that at Kensal Rise and to decide which was better, taking into account parental preference.[29]The choice in the case of C was as between a mainstream state school and an independent boarding school. At first instance, Laws J had said at [1998] ELR 463, at page 473:
"... I apprehend that the case where the parents' choice (outside Schedule 27) might be determinative of the question what, if any, school should be named in the statement will be very rare; I doubt whether it would arise at all. At most, s9 creates a basis in favour of parental choice where more than one school is under consideration and where, to put it in very crude terms, everything else is equal."
Later, at page 474, he added:
"The pressure of parental choice, in a case where it is invoked by virtue only of s9, does not imply that the parents' choice is to be rejected only if the school nominated by them is categorically unsuitable. As I have said, the overriding consideration under Part IV is the fulfilment of the child's special educational needs. Parental choice is in the back seat."
[30]This was expressly approved by Sedley LJ in the leading judgment in the Court of Appeal, at pages 188 to 189, with which Thorpe LJ expressed "complete agreement", and with which Stewart-Smith LJ also agreed (page 190). In these circumstances, it seems to me that Mr Wolfe has taken the passage from Thorpe LJ out of context. The part upon which he seeks to rely is not the ratio of the case in any event. I consider that the Tribunal did compare the provision at the New Learning Centre with that of Kensal Rise. It was well aware of parental preference, but it was not bound by it. All this leads me to conclude that there was no misdirection as to the meaning of "appropriate".[31]In expressing that conclusion, I have dealt with Mr Wolfe's submission on its own terms. However, there is an alternative and more fundamental way of dealing with it. In C the choice lay between two schools. In the present case the choice was between a school, Kensal Rise, and a non-school, the New Learning Centre. In T v Special Educational Needs Tribunal v Wiltshire County Council [2002] ELR 704, the local education authority contended for provision in a school, whilst the parents favoured a home programme, but did not dispute that the school was "appropriate". Richards J stated at paragraph 38(iii):
"In my view the Tribunal was right to distinguish C v Buckinghamshire County Council as it did. The court in that case was dealing with a dispute between two forms of provision at school, not with a dispute between school and non-school provision in circumstances where, as here, the school provision is appropriate and there is therefore no power under s 319 to make arrangements for non-school provision."
[32]Mr Wolfe submits that that passage was obiter, or that the case is distinguishable because of the concession of appropriateness which was made on behalf of the parents, or that Richards J's analysis is plainly wrong. Whether or not it was obiter, and acknowledging the factual difference, in my judgment, the statement of principle is correct. On that basis, once it was found that a school provision at Kensal Rise was appropriate, a non-school provision at the New Learning Centre was not in the Tribunal's gift. The gateway to provision "otherwise than in a school" is a finding that it would be inappropriate for the provision or any part of it to be made in a school. Ground 4: Fairness and the failure to give reasons[33]This ground of appeal relates to Part 2 of the statement, and the subject of D's dyspraxia. The case advanced by M had been that the statement should refer to "dyspraxia which affects D's fine motor skills, poor organisation, sequencing and lack of attention to detail". The statement, as originally propounded by the local education authority, had made no reference to dyspraxia. The Tribunal allowed the appeal in relation to Part 2, but not to the full extent sought by M. It added the words:
"D has mild dyspraxia which predominantly affects fine motor skills and in particular hand writing."
It did not refer to "poor organisation, sequencing and lack of attention to detail". Mr Wolfe submits that this limitation had not been promoted or discussed in evidence or submissions, and that M had had no opportunity to comment upon it. He seeks to rely on R v Mental Health Review Tribunal, ex parte Clatworthy [1985] 3 All ER 699 at page 704, a decision of Mann J, and the well-known dictum of Lord Diplock in Mahon v Air New Zealand [1984] 3 All ER 210, at page 821. Moreover, he submits, the Tribunal did not give reasons for this aspect of its decision, such as would enable M to know why part of her proposal was rejected.[34]I do not consider that there was any procedural unfairness. There is before me a witness statement of Mr Michael Hymans, the local education authority's head of educational psychology and learning support services, who represented the local education authority before the Tribunal. He describes the way in which dyspraxia was considered in evidence and submissions at the hearing. It is clear that the principal expert opinions were those of Dr Sheila Marshall, a consultant paediatrician, with whose opinion the decision of the Tribunal was entirely consistent, and Dr Weinstein, an educational and behavioural consultant, whose report did not mention dyspraxia. It is true that, prior to the issuing of the statement by the local education authority, M had made representations by way of a response from the director of the New Learning Centre, which had referred to "poor organisation, poor sequencing and poor attention to detail". However, although this document was before the Tribunal, it does not seem that it played a significant part at the hearing. In my judgment, it was open to the Tribunal, as an expert decision making body, to use its expertise in relation to the material before it. It reserved its decision for a few days. Having taken a view on the expert evidence in the light of what had been canvassed at the hearing, it did not need to put that view to the parties before expressing it in its decision. Nor is there anything in the reasons challenge. It is obvious why M's appeal in relation to Part 2 was only partially successful. It was only partially supported in the principal expert opinions.[35]By regulation 30(2) of the Special Educational Needs Tribunal Regulations, the Tribunal is required to provide "a statement of reasons (in summary form) for the tribunal's decision". In my judgment, it did so adequately and in accordance with that provision, as it was applied by Latham J in S v Special Educational Needs Tribunal and The City of Westminster [1995] 1 WLR 1627 at 1636, and by Elias J in H v Gloucestershire County Council [2000] ELR 357 at 366 to 368. Ground 5: Misdirection in relation to cost of provision[36]This final ground of appeal (the sixth ground having been abandoned) seeks to criticise the finding of the Tribunal that:
"The cost of the Kensal Rise place would be £7,746 for a learning support assistant for .6 time (the remaining .4 would be funded from the school's resources) and £2,700 for the place (£10,446 in total)."
[37]The criticism is that it was a misdirection to exclude from the total the part of the funding of the learning support assistant, which would come from the school's resources. It is said that this fails to comply with the requirement of section 9 to have regard to the "avoidance of unreasonable public expenditure". Mr Hymans purports to deal with this aspect of the case in his written statement. I propose to approach this issue on the assumption that there may have been a misunderstanding on the part of the Tribunal as to the arithmetic to the tune of, say, £5,000. Mr Wolfe submits that this may have made a difference to the result. He relies on the oft quoted passage in the judgment of Megarry J in John v Rees [1970] Ch. 345 at page 402, and on Wardle-Heron v London Borough of Newham [2002] EWHC 2806 Admin, in which Mr James Goudie QC, sitting as a Deputy High Court judge, in a case where there had been a calculation error, said at paragraph 16:
"I cannot possibly say that the result of striking the necessary balance would inevitably, or even probably, have been the same if the correct cost comparison had been made."
[38]In the present case, on the other hand, I am sure that the assumed error, if corrected, would have made no difference to the conclusion of the Tribunal. The cost of the New Learning Centre would still be very considerably higher, and the other decisive factors would still have prevailed. Conclusion[39]It follows from what I have said that none of the grounds of appeal succeeds, and this appeal must therefore be dismissed.[40]I express my gratitude to both counsel for their helpful submissions.[41]MR MILFORD: My Lord, I would ask for costs.

MR JUSTICE MAURICE KAY: What is the position? Is the appellant assisted?

[43]MR WOLFE: My Lord, yes.

MR JUSTICE MAURICE KAY: So no dispute about the form of the order?

[45]MR WOLFE: Could I have assessment on a public funding basis? I understand there is a copy of the certificate on file.[46]MR JUSTICE MAURICE KAY: Certainly. Thank you very much.[47]MR WOLFE: I am grateful.