W & Anor v Harrow Council & Anor [2004] EWHC 2810 (Admin)

Case No CO/4228/2004

[2004] EWHC 2810 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Friday, 26th November 2004

Strand

London WC2

B E F O R E:

MR JUSTICE WILKIE

Between

MR AND MRS WClaimant

-v-

Between

HARROW COUNCILDefendant

THE SPECIAL EDUCATIONAL NEEDS AND DISABILITY TRIBUNALDefendant

(Computer-Aided Transcript of the Palantype Notes of

Smith Bernal Wordwave Limited

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

Official Shorthand Writers to the Court)

MR J FRIEL (instructed by Messrs SEN Legal Ltd, Bury St Edmunds IP33 1HE) appeared for Claimants

MR A SHARLAND (instructed by Harrow Council, PO Box 7, Civic Centre, Station Road, Harrow HA1 2UL) appeared for Defendants

J U D G M E N T

[1]MR JUSTICE WILKIE: This is an appeal by Mr and Mrs W against a decision of the Special Educational Needs and Disability Tribunal issued on 29th July pursuant to a hearing dated 8th July.

[2]The grounds of appeal have been amended and two grounds are taken. The first is that the Tribunal failed to give any adequate reasons, and in particular failed to state why it rejected the expert evidence of Mrs Shaffer and Mrs Jackson, head teacher of Parayhouse School, in relation to the issue of peer groups, the development of communication skills and the appropriateness of the curriculum post-16 and, secondly, further or in the alternative the Tribunal's decision was and is unreasonable, in that it misunderstood the evidence for on-site therapy, in relation to peer group - the nature of the peer group required, together with the nature of the curriculum required by the child.

[3]Mr and Mrs W's son has Down's syndrome, delayed speech and language skills, and hearing loss. He has attended Parayhouse School, an independent special school, since 2000. At the relevant date he was 16 years old. The LEA had issued an amended statement of special educational needs on 12th February 2004 which named, in Part 4, continued attendance at Parayhouse School until July 2004 and from September 2004 attendance at Shaftsbury High School.

[4]The claimants appealed against that statement in a number of respects and the LEA, which is Harrow LBC, decided in the course of the appeal proceedings that Shaftsbury High School was not appropriate and therefore proposed to name another school, Oak Lodge School, an LEA-maintained special school, in the neighbouring London Borough of Barnet.

[5]The claimants' preferred school was St Mary's School, a non-maintained special school approved by the Secretary of State for pupils aged seven to 19 years with speech and language difficulties and, amongst other things, moderate learning difficulties. That happens to be a residential school, but the question of his attendance as a residential pupil was not a matter in issue between the parties.

[6]The appeal to the Tribunal had been initially against the contents of Parts 2, 3 and 4 of the statement. However, in the event the appeals in respect of Parts 2 and 3 were substantially compromised in two stages. There was a document, which was described as a working document, presented to the Tribunal and annexed to the Tribunal's decision which set out a series of amendments to the statement of special educational needs, both in respect of Part 2 and, most importantly, Part 3.

[7]As far as Part 3 was concerned, those amendments comprised some amendments to the objectives, but in relation to educational provision to meet the specified needs and objectives, five bullet points were set out. Of those five, two are of direct relevance to this statutory appeal. The first of those read as follows:

"• [A] requires a small school with teachers who are experienced and have training in teaching pupils with Down Syndrome and on site State Registered Speech & Language Therapists and Paediatric Occupational Therapists."

[8]The other bullet point reads as follows:

"• a sizeable peer group of students with moderate learning difficulties."

[9]At the hearing itself and recorded in the decision it appears that further amendments to Part 3 were agreed, and they are set out in the decision. As far as speech and language therapy was concerned there were five enumerated points, and in respect of occupational therapy there were three enumerated points.

[10]Four of the five speech and language therapy points are relevant, and they read as follows:

"I. An individual session of Speech and Language Therapy on a weekly basis for a minimum of 40 minutes per week focusing on development receptive and expressive language skills. II. A communication programme devised and supervised by a Speech and Language therapist. delivered throughout the school day. III. The programme should also be followed up on a twice weekly basis by [a Learning Support Assistant], trained and instructed by the Speech and Language Therapist. ... V. Regular input on a regular basis throughout the school day."

[11]The Tribunal's decision is set out in a number of headlined sections. In particular, there is a section headed up "Facts", which runs to some 11 paragraphs, and there is then another section headed up "Tribunal's Conclusions, with reasons." In that latter section, in paragraph B the Tribunal identified for itself its task. It reads as follows:

"... the Tribunal is required to satisfy itself that the proposed school put forward by the LEA, namely Oak Lodge School, is able to offer appropriate provision. The provision that is considered necessary is contained in Part 3 of the statement. We noted the amendments that had been agreed to the existing Part 3 of the statement. If the Tribunal concluded that Oak Lodge School would be able to deliver the appropriate provision, it would be an unreasonable use of public expenditure for [A] to attend St Mary's School, in view of the considerable difference in costs."

It is not suggested by Mr Friel, on behalf of the claimants, that the Tribunal erred in law in thus identifying its task.

[12]In the factual part of the decision, and consistent with what they subsequently found in paragraph B, the Tribunal said in paragraph 4:

"The only remaining issue for the Tribunal to decide upon was placement in Part 4. Mr Friel withdrew the remaining grounds of appeal against Part 3 relating to training and monitoring."

The Tribunal then set out in the succeeding paragraphs a summary of the arguments advanced by Mr Friel for the claimants and by their representative for the Council, as well as the gist of the evidence which they received, in particular the evidence which they received orally, including that from Mrs Jackson, the headmistress of Parayhouse School Mrs Shaffer for the claimants, and Mrs Dingwall called for the Council.

[13]As far as the evidence of the claimants was concerned, it is clear from the decision that the Tribunal received evidence from Mrs Jackson to the effect that the therapist provision should be integrated in the way that was currently available or had been available at Parayhouse School, namely that the therapists should be members of staff. It is clear from the notes of evidence which I have looked at in order to assist with the material which was before the Tribunal, that Mrs Shaffer gave evidence that in her view it was not appropriate for a learning support assistant to give a speech and language therapy session. She said that an LSA was not the same as a speech and language therapist who knew when things were going right or wrong and that such support should be done by an SLT.

[14]It is also clear that Mrs Jackson was concerned about the peer group which would be available for A. They record in paragraph 6 of their decision her expressing concern that there were only two suitable students of similar verbal ability in the "year group" and that one of those may leave. This was a concern which Mrs W also echoed.

[15]The Tribunal also record as evidence the detail of the peer group with whom A would be at various parts of the week. It also records Mrs Dingwall as acknowledging that the year group was not as suitable as it might be and that the year group below also had more communication skills. But she argued that for English, Maths and IT A would be on an individual programme where contact with other pupils is of less importance.

[16]The Tribunal also notes a concern expressed by Mrs W at the level of sporting activity undertaken at Oak Lodge School, where there was an all-age football team. Mrs W's concern was that A is a talented and enthusiastic child in terms of his sporting activity, particularly football, and there was a concern that this would not be adequately met by the arrangement at Oak Lodge School.

[17]The Tribunal also records that when Mr Friel was addressing them at the conclusion of the evidence, he raised a point, which was in evidence, that Oak Lodge School did not have available Italian as a language option, whereas it was available at St Mary's. A being, through his mother's side, half-Italian and being bilingual, this was a further cause for concern about the appropriateness of Oak Lodge School.

[18]There was before the Tribunal a number of reports which had been prepared in respect of the case where the proposed school was the Shaftsbury High School rather than Oak Lodge School, but the points being made in those reports were pertinent to the issues with which the Tribunal had to deal. In particular there was a report from Julia Terteryan, a Paediatric Occupational Therapist, whose report concluded with the following passage:

"I would consider it imperative that [A] continues to receive speech and language therapy, occupational therapy and to be monitored by a physiotherapist regularly. In my experience therapeutic strategies can be reinforced across the curriculum much more effectively when the therapists are based on site in an educational setting, and this is clearly an advantage at St Mary's school."

[19]Mrs Shaffer, the Educational Psychologist called in support of the appeal, had also submitted a report which, in paragraph 10.4, set out the requirements of [A] for a placement. That includes the following elements:

"b) A sizeable peer group of students with moderate learning difficulties [and] ... e) Speech and language therapists and Occupational therapists on site ..."

[20]Also before the Tribunal and on behalf of the claimants was a report from a Jackie Harland, a Speech and Language Therapist, who in her summary and recommendations said as follows in paragraph 4.7:

"[A] needs direct and regular speech and language therapy intervention with a programme as follows: • An individual session of speech and language therapy on a weekly basis for a minimum of forty minutes focused on [certain matters]. • A communication programme that is set up by the speech and language therapist and integrated throughout his school day in liaison with teaching staff with opportunities for follow up activities which can be carried out by an LSA [learning support assistant] on a twice weekly basis. • Input into IEP targets and regular review of his progress. • Annual formal reassessment."

Then paragraph 4.8:

"It is important that speech and language therapy is provided on site to enable effective liaison with teaching staff."

[21]It is noteworthy that each of those individuals in their written reports refer to therapy "on site", and it is also to be noted that the formulations respectively set out by Mrs Shaffer in paragraph 10.4 and Jackie Harland in paragraph 4.7 of their reports is followed closely by the terms of the amendments to Part 3 which were agreed both in advance of the Tribunal hearing and at the Tribunal hearing and contained in or annexed to the Tribunal's decision.

[22]It is also right to say in its statement of case, received by the Tribunal on 22nd June, the council in paragraph 20 in relation to speech and language therapy had said that:

"The advice received in relation to speech and language therapy indicates that children with learning difficulties have difficulties applying skills and that therefore support should be integrated across the school day and not carried out on a 1:1 withdrawal sessions. The LEA would not advocate individual sessions or communication 'activities' to be carried out by an LSA, as best practice shows language and communication work for students at this age and level is most effective when it is incorporated across the entire curriculum and in everyday situations which helps generalisation."

[23]Mr Friel seeks to rely on this passage as agreement by the council that indeed there was a need for speech and language therapists to be integrated and in support of the evidence given by Mrs Shaffer that support by LSAs would not be suitable, but that it should be done by a speech and language therapist.

[24]As I have indicated, the first ground of appeal attacks the adequacy of reasons given by the Tribunal. I have been referred to a number of authorities in respect of the adequacy of reasons. Starting in 1995, I have been referred to a decision of Latham J (as he then was) in S (A Minor) v Special Educational Needs Tribunal

[1995] 1 WLR 1627

, summarising his conclusions as follows. First, reasons should in short form and deal with the substantial issues raised in order that the parties could understand why the decision has been reached. Second, where it was not possible to say why the evidence of one witness was preferred to another, then it was sufficient simply to state the preference. Third, while the substantial issues raised had to be dealt with in summary form, it was not necessary to deal with every argument in support of the parties' submissions, but the conclusion on the issue had to be intelligible. This is in the context of the Special Educational Needs Tribunal Regulations 2001, regulation 36(2) of which imposes an obligation on the Tribunal to contain within their decision or annexed to it a statement of the reasons "in summary form" for the Tribunal's decision.

[25]The second authority is that of Staffordshire County Council v J and J

[1996] ELR 418

, in which Collins J cited with approval S v SENT and set out in the following passage the relevant principles:

"This being a lay tribunal and there being a duty to give reasons only in summary form, it seems to me that the essence of the requirement is that the parties should indeed know why they have either won or lost, as the case may be, and what the tribunal's conclusion has been in relation to the major issues that have been put before it. It may, in certain circumstances, be perfectly obvious why the tribunal has dealt with a particular discrete issue without necessarily having specifically mentioned it. It is obviously desirable and sensible that the tribunal should in all cases, however briefly, refer to the main arguments that have been put forward and explain, it may be only in a short sentence, why they have decided either to accept or reject the particular submission that is made. The one thing, as it seems to me, that should not happen in these cases is that a fine toothcomb should be used and a detailed dissection made of the reasons given in order to try to tease out an apparent error or inconsistency and to try to assert that full reasoning has not been given. The approach must, in my view, be broader than that, provided always that sufficient reasons are given for the parties to know why they have either won or lost on the main issues that they have put forward."

[26]Finally, I was referred to the decision of Beatson J in the case of R (L) v London Borough of Waltham Forest

[2003] EWHC 2907 (Admin)

. In that judgment, at paragraphs 13 and 14 Beatson J pulls together the learning to be garnered from a large number of cases involving a statutory appeal from an Special Educational Needs Tribunal. In paragraph 14 he seeks to pull them together in a series of short propositions. He says as follows:

"Reasons must, first, deal with the substantial points that have been raised so that the parties can understand why a decision has been reached."

Then, having referred to a number of authorities, he records Grigson J in the case of H v Kent County Council and the Special Educational Needs Tribunal

[2000] ELR 660

, stating that what was necessary was that the aggrieved party should be able to identify the basis of the decision.

[27]Secondly, Beatson J says that:

"... a specialist tribunal, such as SENDIST, can use its expertise in deciding issues, but if it rejects expert evidence before it, it should say so specifically. In certain circumstances, it may be required to say why it rejects it."

Thirdly he says:

"... mere recitation of evidence is no substitute for giving reasons: ..."

He then set out a fourth point concerning the specialist tribunal's expertise which is not relevant for the purposes of today.

[28]The Tribunal in its conclusions and reasons, having set the scene by identifying its task, then addressed in a series of short paragraphs the specific bullet points which had been placed within Part 3 by way of amendment. They deal with each of them in turn. As far as the therapies are concerned, they say this:

"The LEA had agreed to increase the amount of Speech and Language Therapy and Occupational Therapy that would be available for [A] at Oak Lodge School. The therapies will be delivered at the school. The amendment sought to the statement was that the therapist should also be 'on-site'. We concluded that the therapists will be 'on-site' for the delivery of the therapies and will liaise with the learning support assistant."

[29]Mr Friel attacks this part of the decision on two fronts. Firstly, he says the reasoning is inadequate. I do not accept that argument. If one looks at the decision as a whole, one can see that the issue of whether on site involved necessarily that the teaching staff had to be integrated, in the sense of being staff in the school, was an issue before the Tribunal and it summarised the evidence in respect of that. It is clear that the Tribunal has concluded that it does not have to be integrated, that the phrase "on-site" can mean delivered on site by therapists who are brought in rather than therapists who are staffing the school, and that liaison will be with the learning support assistant.

[30]It seems to me to be perfectly obvious from that passage that of the two cases presented to it the Tribunal is preferring that which was presented by the authority, rather than that which was presented by the claimants. In my judgment, it was not necessary for them to explain why, because it was obvious that they were simply saying, "Well we, do not agree. We accept the evidence of the council that the statement and the requirements of the statement are satisfied by the arrangement which they propose", which they have described briefly in that passage.

[31]Even if the reasoning were inadequate, in my judgment it does not disclose any error of law in terms of its approach, nor does it come close to being irrational in the traditional Wednesbury sense, which effectively is the second limb of Mr Friel's challenge. It is perfectly clear that such expert evidence as there was on this subject, namely that of Mrs Shaffer as was given orally by her, was at odds with the provisions which both parties had agreed should be contained in Part 3 of the statement, which, in turn, had been culled from her own description of what was required. It is clear that, both in broad terms and in the detail, the intervention of learning support assistants was explicitly envisaged, and that cut straight across the note of oral evidence which Mrs Shaffer gave. Therefore, if anyone was out of line with the tendency of the evidence, it was Mrs Shaffer in her oral evidence rather than the Tribunal in its reasoning. Therefore, in my judgment, on neither of these grounds is the appeal sustainable in respect of that particular issue.

[32]As far the peer group issue is concerned, the Tribunal dealt with it in paragraph G in the following terms:

"[A] will be in a sizeable peer group of students with moderate learning difficulties. We heard that the peer group [is] largely at the same level as [A]. Although there were concerns regarding the verbal ability of the other students, it would appear that they have moderate learning difficulties."

[33]In my judgment, this paragraph plainly indicates that the Tribunal was basing its decision upon the task that it had to perform, namely to judge the appropriateness of Oak Lodge School against what by that stage had been agreed by all should be the education provision set out in Part 3. That education provision required "a sizeable peer group of students with moderate learning difficulties." Mr Friel has throughout accepted that, as a matter of fact, that was what Oak Lodge School could provide. The matters of concern which were expressed by Mrs Jackson and by Mrs W went beyond that issue and concerned matters relating to the verbal communication skills within that peer group. The Tribunal in its decision has made careful note of those concerns, but it was not necessary for it to decide whether in fact that was true or not because that was not the issue which it had to decide. All it had to decide was whether Oak Lodge School could provide a sizeable peer group of students with moderate learning difficulties. That is what they had to decide. That is what they said they were deciding. There was no question of them accepting or rejecting anyone's evidence, because such evidence as there was which went beyond what they had to decide would not be relevant to that issue.

[34]The other two matters, namely the provision of sporting facilities sufficient to meet the particular talents and enthusiasms of A and the availability of Italian as a language, are not dealt with by the Tribunal. They were not required to be dealt with by the Tribunal because they had accurately identified for themselves the ambit of their task, namely to decide whether the school put forward by the LEA in Part 4 was one which was appropriate for the provision identified in Part 3. The desire on the part of A and his parents to have available a school which, on top of that, could accommodate his particular special talents or his particular interests was over and above the task which the Tribunal had to deal with. Therefore, it was perfectly proper of them not to deal with it at all. They inferentially advert to this in their concluding paragraph, paragraph H, where they say this:

"Although we understood the arguments put forward regarding the reservations of Oak Lodge School, we concluded that the school would be able to make the provision that had been identified in Part 3 of his statement as being appropriate to meet his special educational needs. Having concluded this, it would be unreasonable use of public expenditure for [A] to attend St Mary's School."

They therefore dismissed the appeal.

[35]In my judgment that was a proper conclusion for them to reach following an entirely adequate summary statement of reasons, a conclusion to which they were entitled to come and which, as I have indicated, did not remotely approach being an irrational one or evidencing a wholesale misunderstanding of the evidence.

[36]It therefore follows that this statutory appeal must fail.

[37]MR SHARLAND: My Lord, in light of that, we would ask for our costs in this matter. A statement of costs has been prepared and served on the appellant. I do not know whether you have a copy. If I could pass it up. (Handed)

[38]My Lord, obviously this is only necessary if you are prepared to engage in a summary assessment.

MR JUSTICE WILKIE: I beg your pardon?

[40]MR SHARLAND: This is only necessary if you are prepared to engage in a summary assessment, rather than refer to a detailed assessment. My Lord, I would say, given the size of this case, summary assessment would be appropriate. My Lord, you can see there that the total costs including VAT is £5,500. My Lord, I would suggest that that is eminently reasonable in light of the amount of work involved in this case. There have been a number of points. There have been a large number of authorities. There has also been a lot of documents. I have had to go through the whole of the original of the SEN bundle. There has also been quite a lot of sub-issues, which fortunately have fallen away today. There was going to be an application for an adjournment which was lodged which was going to be heard yesterday but fell away, and notes were given. The issue of admissibility of witness statements. I have not seen the statement of costs from my learned friend, but I am sure they were equal if not far in excess of our statement of costs. In light of that I would say that we should be allowed the full amount.

[41]MR FRIEL: My Lord, if we put a statement of costs before the court because the appellant has much more to do it is going to be more, although I would observe that the rates charged by my learned friend's Chambers is more than (inaudible) charge the parents as a matter of course. We have no point to make on it, but the court obviously has a discretion and, bearing in mind my learned friend thought this was such an open-and-shut case, it may be that the court may have thought that he is exaggerating his involvement. I am glad your Lordship laughed, because I am deliberately being humorous on that.

[42]MR JUSTICE WILKIE: You are not challenging either the fact that there should be an order or that there should be a summary assessment or the quantum.

[43]MR FRIEL: No. We have looked at the summary assessment and we do not consider it appropriate to say anything to your Lordship about it.

[44]MR JUSTICE WILKIE: As always Mr Friel is adopting a sensible and helpful attitude, I will make an order that the claimants pay the defendant's costs summarily assessed, inclusive of VAT, at £5,503.75. Thank you both very much. ______________________________