Dermott, R (on the application of) v Sendist & Anor [2005] EWHC 2722 (Admin)

Case No CO/1680/2005[2005] EWHC 2722 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Monday, 31st October 2005
Strand
London WC2
B E F O R E:
MR JUSTICE LLOYD JONES
Between
THE QUEEN ON THE APPLICATION OF DERMOTTClaimant-v-
Between
(1)SENDISTDefendant(2)LIVERPOOL CITY COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofSmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR J FRIEL (instructed by Maxwell Entwistle & Byrne) appeared for CLAIMANT for The DEFENDANTS did not attend and were not represented
J U D G M E N T
[1]MR JUSTICE LLOYD JONES: This is an appeal by Ms Clare Dermott pursuant to section 11 of the Tribunals and Inquiries Act against the decision of the Special Educational Needs and Disability Tribunal dated 16th February 2005. The appeal is on a point of law. Ms Dermott has been represented before me today by Mr Friel. Neither of the defendants, that is the Special Educational Needs and Disability Tribunal or Liverpool City Council appears, although Liverpool City Council has acknowledged service.[2]The appeal concerns Lewis James Dermott, who is currently 12 years of age and will shortly be 13 years of age. He suffers from Autistic Spectrum Disorder and is also subject, as evidence before the Tribunal made clear, to Anxiety Disorder and Obsessive Compulsive Disorder. The evidence before the Tribunal was that this was a result of his earlier experiences at school, in particular the West Derby School.[3]Lewis, prior to joining Merchant Taylors School, had been at West Derby Comprehensive School, a mainstream comprehensive school, where he had been subjected to bullying with which he had been unable to cope. He had withdrawn from that school after only three or four weeks. Thereafter, he was successful in obtaining a place at the Merchant Taylors School and has been a pupil there since 1st March 2004. His mother has been paying not only the school fees for Merchant Taylors but also paying for 17 hours a week special teaching.[4]The matter came before the Tribunal in slightly curious circumstances. The City of Liverpool's Statement of Special Educational Needs in its final version states in Part IV, which concerns placement, that:
"Attendance at a resourced mainstream school with additional facilities for the teaching of pupils on the Autistic Spectrum [is considered appropriate]. The LEA would recommend attendance at Parklands High School within the Resourced Provision."
[5]However, in its case statement which was lodged prior to the hearing before the Tribunal, the local authority put forward an alternative proposal. It considered that St Francis Xavier College, in conjunction with support from Abbott's Lea School, an adjoining school, would meet Lewis's educational needs. At that stage the local authority retained the possibility of education at Parklands as an alternative but, as is apparent from the papers before me, at the hearing itself the local authority withdrew the proposal for Parklands. Its position before the Tribunal was that Lewis should attend St Francis Xavier College in conjunction with Abbott's Lea.[6]The position of Ms Dermott was that Lewis should continue to attend Merchant Taylors School and that the additional special teacher which he will require should be provided by the local authority at Merchant Taylors School. One has some sympathy with the Tribunal in approaching this rather complex case in circumstances where the local authority had changed its position. In the event, the Tribunal came to a conclusion which was not proposed by either party. It concluded that Lewis should be educated at St Francis Xavier College. It did not consider a dual placement to be appropriate. Moreover, in the course of its ruling, the Tribunal stated that it considered that the Merchant Taylors placement was an inappropriate placement.[7]Mr Friel for Ms Dermott contends that the decision of the Tribunal is erroneous in law on a number of grounds. First, he maintains that the Tribunal acted irrationally in failing to have regard to the whole of Dr Randall's evidence and in failing to appreciate the full extent of its contents. Dr Randall is a Chartered Educational Psychologist and he produced an expert report on Lewis Dermott for the purposes of the hearing. Again, one has some sympathy with his position because he addressed the case that he thought was being put forward by the LEA, although that changed immediately before and at the hearing. As a result, his oral evidence before the Tribunal was much wider ranging than was this report.[8]In his report he draws specific attention to the effect of bullying on Lewis and also the traumas which would accompany a change in schools. He says this in his report:
"(8.3) Lewis's mother's evidence is that the most major recent stress impacting on Lewis has been the bullying he has experienced, most particularly in West Derby Comprehensive School. She is clear that this led to a series of stress-related symptoms including highly intrusive obsessive behaviour . . . (8.4) It is this combination of circumstances associated with bullying that cannot be allowed to happen again otherwise the sequelae are likely to be so severe that the impairment to Lewis's education could become permanent."
It was also his view expressed in his report that as there was no possibility of a mainstream comprehensive school being able to mount the support Lewis needed to ensure his freedom from negative evaluation and associated harassment, there seemed to be no satisfactory educational argument for moving Lewis into such an environment. He considered that there was nothing educationally that such an environment could do for Lewis that was not already being done in his present placement. He said:
"The present progress being made by Lewis demonstrates that he is in the most viable educational environment that he has experienced for several years and that his gains are not just educational but also personal and social."
[9]His conclusion was:
"Lewis is a young man with atypical Asperger Syndrome of high ability despite slow speed of information processing, who has core attainments of literacy and numeracy within the predicted range. His written work is severely affected by co-morbid dyspraxia and the speed of output of reading and writing is very slow to the point where examination concessions are likely to be needed."
He also concluded that:
"He is now settled in a school where the antecedents of bullying are minimised successfully and, as a result, he is thriving. There is no good case for moving him and his Statement of Special Educational Needs should reflect the present placement and provision."
[10]In the course of his oral evidence to the Tribunal, he developed these matters. In particular, these matters are dealt with -- and I do not propose to set them out -- at paragraphs 7, 9 and 10 of his witness statement. He deals with the risk factors arising on moving Lewis. At paragraphs 15, 16 and 19 he deals with the dangers of a further breakdown if Lewis were moved to a school where he experienced bullying and the consequences of that.[11]In its decision, the only point at which the Tribunal deals with this matter is at paragraph E of its reasons where it states this:
"Mrs Dermott told us that Lewis had suffered with an anxiety disorder since his infancy. We were, however, presented with a pupil who had not been recorded during his primary schooling as having any special educational needs to warrant placing him on the register. We did not deduce, therefore, that his attendance at a maintained mainstream school would by necessity trigger a recurrence of the difficulties which Dr Randall described, particularly if the school was ordered on structured lines."
[12]I am satisfied that the Tribunal did fail to have regard to the whole of Dr Randall's evidence and failed to appreciate the full extent of its contents. Had they appreciated the full extent of its contents, I am confident that this specialist Tribunal would have addressed those issues in greater detail.[13]The second ground of the application is that the Tribunal failed to give any or any adequate reasons as to why it rejected Dr Randall's evidence and the supporting evidence in relation to the risk factors of moving Lewis and the fact that he should not move school because of those severe risk factors. In this regard I remind myself of the principles stated in the judgment of Beatson J in R (L) v London Borough of Waltham Forest [2003] EWHC 2907. The essential points may be summarised as follows. First, reasons must deal with the substantial points that have been raised so that the parties can understand why a decision has been reached. It is necessary that an aggrieved party should be able to identify the basis of the decision. Secondly, a specialist Tribunal such as the Special Educational Needs and Disability Tribunal can use its expertise in deciding issues but if it rejects expert evidence before it it should say so specifically, and in certain circumstances it may be required to say why. Thirdly, recitation of evidence is no substitute for reasons. Fourthly, linked to the second point, where the specialist Tribunal uses its expertise to decide an issue, it should give the parties an opportunity to comment on its thinking and challenge it.[14]In the present case the Tribunal was, of course, an expert Tribunal and one necessarily approaches such a Tribunal's decisions with the respect which that requires. Nevertheless, I am persuaded that in this case the Tribunal failed to give reasons for its rejection of the expert evidence of Dr Randall in circumstances where it was required to do so. This went to a central issue in the proceedings before the Tribunal. It was necessary in those circumstances that the Tribunal should explain, albeit briefly, to the parties the reasons why it was taking this particular view. In my judgment, it failed to do so. Accordingly, on this point I conclude that the Tribunal failed to comply with the obligation to give reasons. I make that finding notwithstanding the fact that the obligation on the Tribunal is merely an obligation to give a summary of its reasons.[15]The third ground relied on by Mr Friel is that the Tribunal relied on its own expertise without raising issues with the parties. Here he drew attention to two particular matters. The first is that in the result the Tribunal nominated solely St Francis Xavier School and not that school in conjunction with the Abbott's Lea Special School, as had been proposed by the local authority. Neither party had contended for that result. The effect was that in the hearing before the Tribunal, the question as to how St Francis Xavier School itself would recruit specialist staff was not considered and the cost of recruiting such staff remained unconsidered.[16]Secondly, the Tribunal made a finding that the Merchant Taylors School did not have sufficient facilities for dealing with Autistic Spectrum Disorders and that it did not offer an appropriate educational context. That, I am satisfied, was not an issue which was raised with any party at the hearing. Liverpool had made no such objection. Indeed, the only relevant evidence which was before the Tribunal was evidence which showed the very satisfactory progress which Lewis had made during his time at the Merchant Taylors School. In those circumstances, I conclude that the Tribunal had failed to comply with basic principles of procedural fairness. As Peter Gibson LJ observed in Richardson v Solihull MBC [1998] ELR 319, 338, although this is a specialist Tribunal with members appointed for their expertise, it is important that it obeys the rules of natural justice and that the members should not give evidence to themselves which the parties have had no opportunity to challenge. In the present case, those parties who were adversely affected by the decision were left in the dark by the Tribunal as to the possibility of such findings being made, and they were deprived of the opportunity of producing material which might have been relevant to those issues and which might, in the context of this hearing, have resulted in a different conclusion.[17]Fourthly and finally, Mr Friel submits that the Tribunal acted irrationally in that it misunderstood the evidence as to the outreach provision. The Tribunal proceeded on the basis that outreach provision -- that is specialist training and advice provided to teachers -- was not available in the area in question, whereas in fact the evidence before the Tribunal was that it was available. It could be obtained from the Liverpool Autistic Society or from experts in schools other than the Abbott's Lea School. In those circumstances, the Tribunal appears to have proceeded on a false basis and acted irrationally in misunderstanding the evidence as to the availability of outreach provision.[18]For all of these reasons, I am satisfied that the decision of the Tribunal is erroneous in law and accordingly I remit the matter to the Tribunal for further consideration. In the circumstances, it seems to me appropriate to direct that it should be heard by a differently constituted Tribunal.[19]MR FRIEL: My Lord, if I could remind your Lordship to make the usual assessment order.[20]MR JUSTICE LLOYD JONES: Yes. Very well, there will be an order for Legal Aid assessment.[21]MR FRIEL: Thank you very much, my Lord.

Cited in 1 later judgment