Hammersmith & Fulham v Pivcevic & Anor [2006] EWHC 1709 (Admin)

[2006] EWHC 1709 (Admin)Case No CO/10527/2005
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 10/07/2006
Before
MR JUSTICE STANLEY BURNTON
Between
London Borough of Hammersmith & FulhamAppellant(2) Special Educational Needs and Disability TribunalRespondents
Paul Greatorex (instructed by Legal Services Division, London Borough of Hammersmith & Fulham) for AppellantJohn Friel (instructed by Felix Moss) for First Respondents for The Second Respondent did not appear and was not representedHearing Hearing dates: 2 and 3 May 2006
Judgment

Introduction

[1]These are appeals by the London Borough of Hammersmith & Fulham, to which I shall refer as “the LEA”, against decisions of the SENDIST dated 21 November 2005 and 17 March 2006. Both decisions relate to Reuben Pivcevic, the son of Edward Pivcevic and June Goh, the First Respondents. Reuben has a diagnosis of autistic spectrum disorder. The LEA’s statement of his special educational needs had been issued on 23 April 2005. It named Queensmill School, a specialist school maintained by the LEA. as the school in which Reuben should be educated.[2]In their first decision, the Tribunal decided, principally, that Reuben should leave Queensmill and be educated at Rainbow School, a private school, and that his statement of SEN should be amended accordingly. The marginal cost to the LEA of Reuben’s attendance at Queensmill would be negligible. The cost of his education at the Rainbow School is very considerable. The fees alone are over £42,000 a year; in addition, there might be transport costs incurred by the LEA. Indeed, Mr Greatorex suggested that the potential cost to the LEA of the Tribunal’s decision, assuming that Reuben remains at the Rainbow School, could amount to some £2 million. At a time when local authorities’ budgets are under pressure, it is understandable that the additional financial burden should be of great concern to the LEA. As, or perhaps even more importantly, Queensmill is a specialist school for children with autistic spectrum disorder, with a good reputation, and the LEA is concerned and puzzled by the decision that the school was unsuitable for a child for whom the education provided there is designed.[3]In the end, the decision of the Tribunal turned on its conclusion that an education that does not involve Applied Behavioural Analysis, referred to as ABA, is unsuitable for Reuben. I mention this at the beginning of my judgment because the issues raised by the LEA include whether there was sufficient evidence before the Tribunal to support this conclusion, and whether its conclusion was adequately reasoned in either of its decisions. It is, I think, helpful to bear that in mind when considering a summary of the evidence before the Tribunal.

Reuben’s background

[4]Reuben was born on 24 December 1999. He was, therefore, aged 5 and 6 respectively at the dates of the Tribunal’s decisions. He was born and spent his early years in Moscow. In view of his communication difficulties, in March 2003 his parents brought him to London for assessment. Autistic spectrum disorder was diagnosed. In June 2003, Karen Massey, a clinical psychologist specialising in ABA, recommended that Reuben immediately receive a minimum of 30 hours per week intensive ABA therapy. Between July and December 2003, he received training from an ABA-trained clinical psychologist. Following his parents’ move to London, in January 2004 he was admitted to Queensmill School, which he attended at the date of the hearing of his parents’ appeal to the SENDIST. From June or July 2005, with the agreement of Queensmill, he received ABA training at home on 3 afternoons a week, for which purpose he was permitted not to attend Queensmill on those afternoons.

The parties’ cases before the Tribunal

[5]The only crucial issue as to the Statement of Special Educational Needs made by the LEA related to the school to be named in the Statement, and that in turn depended on the adequacy of the education that would be provided if he continued at Queensmill, and the issue as to his need for ABA. It is, therefore, unnecessary to set out the contents of the Statement. Dated 22 April 2005, it named Queensmill as the school he should attend.[6]In their letter dated 16 June 2005, Reuben’s parents stated that they were “seeking a recognition that Reuben requires to be educated within an ABA programme”, and that in consequence they were seeking a placement for him at the Rainbow School.[7]The LEA served a Statement of Case on 19 September 2005. It summarised the evidence on which it relied for the conclusion that Queensmill would provide suitable education for Reuben. I summarise that evidence below.

The written evidence before the Tribunal

(a) The LEA’s evidence

[8]There was a considerable amount of written evidence placed before the Tribunal by the LEA. It included the OFSTED report on its inspection of the school in October 2001. In the summary to that report, the Inspector stated:
“Queensmill School is an effective school. Overall pupils make good progress in their learning and very good progress in their personal development and behaviour. The quality of teaching is good. The leadership and management of the head teacher and deputy headteacher are very good and the school provides good value for money. What the school does well: • As a result of the very good leadership and management of the headteacher and deputy headteacher, there is a high quality staff training, excellent teamwork among all staff and an outstanding commitment to improvement. • The quality of teaching is good and pupils make good progress in their learning. A particular strength of the teaching is the very good support and challenge provided by teachers and support staff which successfully enables pupils to develop their communication strategies. • The very good provision for pupils’ social and moral development, particularly the consistent management of pupils and the quality of staff/pupil relationships, helps pupils to make very good progress in their personal development and behaviour. • The very good care and welfare of pupils fosters an effective environment for learning. • The school’s very good partnership with parents and its links with the community have a very positive impact on pupils’ learning. • The very good opportunities for the inclusion of pupils with their mainstream peers makes a significant contribution to the standards achieved by the pupils concerned. What could be improved • The allocation of time and breath of coverage of the National Curriculum in art, design and technology, geography, history, music and religious education. • Schemes of work should provide more effective guidance for teachers’ planning. • The use of assessment information in all subjects should better inform planning and priorities for further improvement”
. What the school does well: What could be improved[9]There was no evidence to suggest that this summary was obsolete. In addition, appendix G to the LEA’s Statement of Case was a report of a review of the effectiveness of its provision for autistic pupils at Queensmill. Its purpose was expressed to be “to show evidence that the quality and flexibility of this provision is such that children with a range of autistic spectrum disorders and associated difficulties could be expected to make at least ‘adequate progress’ if placed there.” It consisted of a number of profiles of children who were, or had been, attending the school, with an outline of their progress and what the school did to assist in that progress. It included the views of the children’s parents. According to the second decision of the Tribunal, the review was not referred to on behalf of the LEA during the first hearing, and so I shall not summarise its conclusions, which were generally very positive.[10]In her parents’ advice form, Ms Goh referred to the one hour per day ABA training that Reuben had received in Moscow between July and December 2003. She said that his overall behaviour improved and he was able to listen and cooperate when instructed. She referred to “the marked improvements he achieved with the ABA programme”. In relation to Queensmill School, she said:
“Reuben is at the Queensmill School, in the pre-school class from 9am – 3pm everyday. He started at the end of January 04 and he seems to be enjoying it. There is no crying in the mornings although he wants to be carried in, there is some reluctance to be separated from me but when he gets to class, he happily goes it. I believe they keep him well occupied throughout the day and he seems happy and contented.”
[11]The comprehensive statutory assessment of special educational needs dated 22 April 2004 produced by Nicky Harker, the Deputy Head Teacher at Queensmill, gave impressive details of the progress Reuben had made at the school. For example, he was making good progress with both his expressive and receptive language; he was beginning to make many more verbal sounds and approximations of words, and he had started to use PECS to request items at snack time. His “fine motor skills (were) improving all the time”, and he was “able to tolerate a lot more creative tasks than before”. He had “settled well into being part of a group of seven children” and “seemed happy as a member of his class”.[12]Erik Dwyer, an educational psychologist in the service of the LEA, had prepared a report dated 10 May 2004, following his meeting with Ms Goh and his observation and individual assessment of Reuben, his observation of him in class, and discussion with teaching staff. He referred to the progress Ms Goh had reported as resulting from Reuben’s ABA programme in Moscow. In relation to Queensmill, he referred to the high level of adult support at the school (5 adults to 7 children) and stated: “Staff have seen a good rate of progress from Reuben in the 5 months he has been attending the school having already met most of the targets on his individual education plan (IEP). They have been particularly pleased with his speech and language development with Reuben now beginning to initiate verbal interaction with staff to indicate needs (in January he would only say numbers or ‘bye bye’ and tended to babble to himself at other times). … Reuben is now understanding a lot of routine commands and instruction when given clear contextual cues … (staff) feel that he is definitely understanding a lot more now than when he first arrived and I observed several instances of him reacting to verbal prompts and moving appropriately without a clear visual signal (though this was in reaction to familiar transitions/instructions within the normal classroom routine). At home Reuben is able to respond appropriately to a range of routine language … … Reuben has made good progress … with the use of PECS …. This has contributed to Reuben’s growing understanding that he can get his needs met through verbal interaction with an adult. Communication remains at a very contextual level with Reuben, though this may be an indication of his level of abstract thought rather than purely an indication of ‘language delay.’[13]Under the heading “Educational attainments”, Mr Dyer stated:
“Reuben is progressing well academically and staff are seeing weekly developments in his skills.”
He gave specific examples of his progress in this area. There were also good signs of progress in his social skills and interaction with his peers, and in his independence and self-help skills. He reported that Ms Goh “was pleased with the job that the staff at Queensmill are doing and with Reuben’s progress generally. She is particularly pleased with the use of the PECS programme and his recent progress with communication skills.” She was, however, concerned with the lack of one-to-one speech therapy and the absence of any occupational therapy. Mr Dwyer’s summary and his own views were stated as follows:
“Reuben is a child who has been diagnosed as being on the autistic spectrum. He has associated difficulties with language, communication, social and play skills. Despite his difficulties in these areas and his recent move from Moscow to London, Reuben has shown good progress since he began at Queensmill School in January. He has shown particular improvement with regards to communicative skill and intent. He is beginning to use expressive language to communicate his needs and is reacting well to the use of the PECS system to structure his language and development and this should be continued and extended. He has developed good learning skills and is able to access learning in a group, one to one and independent work sessions. Reuben is perhaps finding social interaction (with his peers in particular) and social understanding more difficult and this is an area that staff will target in the near future. It is likely that his developing language skills will assist his continued progress in all areas of functioning as time goes on.”
[14]The third report, dated 28 April 2004, was of Jane Winkler, a speech and language therapist at Queensmill. She reported:
“In terms of verbal means of communication, he has demonstrated an increase in the amount of his vocalisations since commencing at Queensmill School. When engaged in free play or working he demonstrates the use of some babble as well as singing but this does not appear to have any clear communicative intent. He is able to repeat single words and learnt phrases. He has also developed his ability to spontaneously use very familiar nouns (e.g. juice, crisps) to request in context. He is also developing his use of social conventions (i.e. ‘bye-bye’). Any attempts at spontaneous naming or use of language should be encouraged both at school and at home. … He is beginning to develop his request making by exchanging a photo from a selection of 4 in order to make a request for a desired item (e.g. toy, food item).”
She continued:
“Reuben is demonstrating a growing interest in literacy sessions at school, however this is limited. His mother reports that he doesn’t really like books to be read with him, with the exception of one. She is working on expanding the amount of enjoyable reading they do together, but Reuben doesn’t like to be directed for these activities. He is showing skills in matching real objects to photographs and/or symbols.”
[15]Ms Winkler made recommendations for Reuben’s progress. They did not include ABA. There was no suggestion that her recommendations could not be met at Queensmill.[16]Reuben’s end of year summary report of July 2004 stated:
“Reuben settled well into Turquoise class and has made significant progress during his time here. Reuben’s social and personal skills have improved noticeably. He can name all of the peers and staff members in the class without prompting and has begum to look and attempt to make eye contact with his peers when sharing objects with them. He is far more tolerant of the demands placed upon himself by staff and will follow the classroom routines with the minimum amount of fuss. Reuben has been able to extend the amount of time he can concentrates on an activity and has become much less distracted during group activities. His independence skills have improved both in self-care and academic areas. Reuben’s functional language and communication has improved enormously and he is able to initiate his own communication by using a range of learnt words. He is also beginning to put simple two word requests together. Reuben has also developed a good understanding of visual learning reinforcers and has used PECS successfully to request preferred items such as food and toys. Reuben has established a firm baseline for his academic skill in numeracy and literacy. He can work confidently with numbers to 10 and is beginning to enjoy looking at books with his peers at story time and these skills will provide a good basis for his academic learning next year. Reuben has been a happy and confident member of Turquoise class and will be missed by all of the staff. ”
[17]The Tribunal also had before them a set of reports prepared in 2005. Bryony Schnadhorst, a speech and language therapist, had produced a report in May 2005. She reported progress in a number of areas. In relation to Reuben’s means of expression, she said:
“Reuben uses a range of non-verbal means to communicate these include reaching, smiling, laughing, use of vocalisation/babble, eye contact and gesture. Within the school situation Reuben is observed to be developing his use of the spoken word at a single word level primarily for requesting. There is gradual increase in spontaneity suggesting increasing confidence in the use of the spoken word and developing awareness of how he can use spoken language to influence his environment. Within structured group tasks he is also developing the ability to spontaneously name and label familiar vocabulary items linked to current class topics (e.g. transport). Reuben continues to make some use of echolalia which allows him to practise language before he can use it spontaneously. Reuben continues to develop his expressive communication where visual cues are used to support spoken language. When using the Picture Exchange Communication System (PECS). Reuben is now able to construct a 2 part phrase placing icons on the sentence strip in correct sequence to request a desired item, e.g. ‘can I have juice’. Reuben will point to the sentence strip and use the spoken word to make the request.”
[18]In relation to his literacy, she said:
“Reuben demonstrates an increasing interest in books and is able to share a book of his choice for a short period with a familiar adult. Reuben is developing skills in symbol recognition and developing his ability to respond consistently to certain frequent symbols presented to him e.g. ‘quiet’ ‘sit down’ ‘wait’. As previously mentioned Reuben benefits from visual cues to support the spoken word and these cues are crucial to support both Reuben’s attention to the spoken word and his ability to understand the key word in the instruction etc.”
[19]Ms Schnadhorst’s summary was as follows:
“Reuben presents with complex communication difficulties affecting his attention and listening, interaction, understanding and expression. He is developing in his ability to focus on set tasks as well as demonstrating increasing spontaneity and confidence in his use of the spoken word. Reuben requires a classroom communication programme designed by the Speech and Language Therapist in liaison with his Teacher, which aims to increase his functional communication skills. The Speech and Language Therapist should be available as a resource for discussion with the class team and Reuben’s home environment. Reuben will also benefit from continued participation in a small communications group to focus on the development of: • Following instructions involving 1-2 key pieces of information. • Use of the spoken word for an increased range of function. • Understanding and use of verbs. • Development of interaction skills within a small group.” • Following instructions involving 1-2 key pieces of information. • Use of the spoken word for an increased range of function. • Understanding and use of verbs. • Development of interaction skills within a small group.”
[20]In May 2005, Ms Schnadhorst had completed a schedule showing the extent to which Reuben had achieved the targets set for him for the 2005 Spring term. Nearly all had been achieved.[21]The report dated 11 April 2005 of Reuben’s class teacher, Mandy Smith, also described his continuing progress at Queensmill in terms of the use of language for communication, his literacy and mathematical development. For example:
“Increasingly, he is requesting without the (PECS) symbols for very routine and familiar items such as ‘juice’ or ‘pizza’. He will respond appropriately to ‘What do you want?’, again in familiar settings. … He is learning to complete a simple sentence to say what he did yesterday or what he likes, then reread the adult’s writing of that sentence, cut up the sentence into words and set it out correctly to re-read.”
[22]Under the heading “Knowledge and Understanding of the World”, Ms Smith wrote:
“Reuben now takes a great interest in the topic work we do and often names artefacts we have looked at the day before. … He is a child who is becoming curious about his world, and he is now willing to try out new experiences, touching and sniffing items with less anxiety.”
[23]Under the heading “Personal, Social and Emotional Development”:
“Reuben is highly receptive to direct teaching, and learns quickly with visual support, quick tasks and repetition. He responds well to praise, and is now showing pleasure in his achievements. He works well when he knows what is expected of him and when clear structures about behaviour have been set up.”
[24]Under the heading “Making Relationships”: “Reuben is a delightful and happy child who is just beginning to enjoy having people to interact with. He has a real warmth and likes to request tickles from one of his classmates. …[25]Mr Dyer had produced a report dated 13 September 2005 updating his earlier report. His summary was as follows:
“Reuben continues to make good progress within his own terms and those of his peer group at Queensmill. He has become much more comfortable in his surroundings and continues to react very well to the routines and general environment of the school. His communication skills are showing progress and his increasing awareness of his ability to act upon the environment to get his needs will hopefully lead to increased expressive language use over time. He is responding well to the PECS programme in place and the other visual cues used in the classroom to support use and understanding of language. Reuben continues to show interest in his peers though as yet does not possess the skills to interact with them in a meaningful way. His visual concentration and focus can be variable during group sessions and he needs frequent prompting from adults, (although it is likely that he is listening to more than he appears to be) This is in contrast to his higher level of engagement when in inclusion sessions in Peterborough School, where perhaps mainstream role models are of benefit to him. It is also likely that his concentration will improve as his language skills develop further.”
[26]Thus the general picture presented by this evidence was of a school that was providing a good education and of Reuben benefiting from it and generally progressing. According to that evidence, his progress continued in the period to his beginning to receive ABA tuition at home.

(b) The parents’ evidence

[27]On 1 November 2005, Ms Goh served on the LEA, out of time (as to which see regulation 18 of the Special Educational Needs Tribunal Regulations 2001), the written reports on which she and Mr Pivcevic wished to rely, namely a speech and language therapy report by Patricia Rush, an occupational therapy report by Nancy Arnaud, an educational psychologist’s report by Dirk Flower, and Reuben’s history of ABA/VB programmes. The LEA might have either objected to the late service of this evidence or sought an adjournment so that it could adequately respond to it. If it could not respond to that evidence in the time available before the hearing on 21 November, it should have taken one or other of those steps. It did neither.[28]Ms Rush’s report was dated 27 July 2005. Under the heading “Assessments Results from the Wide Range Assessment of Visual Motor Abilities”, she stated:
“Reuben needs Occupational Therapy input to help him develop the sensory awareness in his hands in order to develop his pencil skills further. He also demonstrated some eye contact with the work that he was doing but again he needs more direct one to one teaching in order to expand the amount of time that he will co-operate with this particular task. The ABA type way of teaching would provide this type of level of input and Reuben certainly in my opinion presented as a boy who was very interested in developing his skills further. The combination of the Sensory Integration Therapy to improve his sensory processing within his hands and the ABA method of teaching I am of the opinion that Reuben would make changes fairly quickly.”
[29]This was the only reference to ABA in the body of the report. She considered that Reuben needed continued occupational therapy, using sensory integration therapy, in order for him to be able fully to access the curriculum. She pointed out that Queensmill does not have an occupational therapist on the staff (although that would not prevent an outside therapist attending Reuben). The last of her conclusions was as follows:
“I am of the opinion that Reuben needs a more direct approach using the ABA method. The school can provide a multi-disciplinary approach with Speech and Language Therapists and Occupational Therapists working in conjunction with teachers using ABA, which would be appropriate for Reuben and this seems to be supported to a certain extent within the documentation. Reuben’s sensory issues do not seem to be being addressed other than through the individual Occupational Therapy sessions.”
[30]Ms Arnaud’s report, dated 24 August 2005, confirmed that Reuben had made progress over the previous 2 years. She referred to the existing provision for him as follows:
“Reuben remains at Queens Mill School. Reviewing the documentation made available to me by Ms Goh, for example reviewing the Speech and Language Therapy programme that had been in place as a class programme, the programme which was in place for the Autumn term it is pleasing to note that Reuben is in the process of achieving a number of goals that have been set. The goals are clearly entirely appropriate for Reuben. It is most pleasing to note that Reuben is certainly making progress in the use of the Picture Exchange Communication System and is now travelling with this and also using this to structure his expressive language. Reviewing the documentation for his Annual Review within the Yellow class, it is pleasing to note the improvement in his communication skills that have been identified by his class teacher Ms Smith. Reviewing the Speech and Language Therapy report, again Reuben has clearly made progress and I would agree with the comments within the report regarding Reuben’s level of understanding. The Therapist has also noted an increase in Reuben’s expressive language and also the use of PEC’s to support the development of his expressive language. I understand from discussion with Ms Goh that Reuben works directly with the Speech and Language Therapist for approximately twenty minutes per week with one other child. This level of involvement does not appear to be indicated within the report. Reviewing Reuben’s Statement of Special Educational Needs issued by Hammersmith and Fulham Council dated 22nd April 2005, it now appears that Reuben’s communication has improved in respect of the fact that he now does use some spontaneous verbal language. It may be possible to continue to use Makaton in the form of supporting his receptive language, however it is unlikely that this will be a way forward to develop his expressive language. Although there is reference under Communication Provision for a structured language programme, there is no reference as to the frequency of the review of the programme. Reviewing the documentation provided for me by Ms Goh this communication programme is clearly updated by the Speech and Language Therapy staff working with Reuben on a termly basis and this is clearly appropriate and should therefore be included. Speech and Language Therapy is also listed under part 6. This is inappropriate.”
[31]Paragraph 3 and 4 of Ms Arnaud’s recommendations were as follows:
“The Speech and Language Therapist will need to provide a very detailed programme which must be followed by all classroom staff working with Reuben. This will need to contain a series of targets and achievement criteria. The programme that has been provided within his present school is clearly a very good example of an appropriate type of programme for children of Reuben’s age and ability. Reuben clearly needs to continue to make use of augmentative communication systems to support and help develop his receptive and expressive language skills. He is currently using the Picture Exchange Communication System within his current school placement and this is clearly an ongoing need for him. He will also need visual support in the form of symbolic or pictorial timetables to continue to support his understanding of the structure of the day and the expectation of task completion type activities.”
[32]Mr Flower’s report was undated but resulted from an assessment of Reuben based on a visit to Queensmill and to him at home on 13 October 2005. He assessed Reuben with the Wechsler Preschool and Primary Scale of Intelligence, 3rd edition. He found that:
“(His) Performance IQ score was 88 with a range of 82-95 at the 95% level of confidence. This result places Reuben at the 21-percentile rank within the general population. The current Performance IQ Score attained can only be considered as an estimate of Reuben’s Non Verbal ability as on some items he appeared to lose motivation. It is highly likely that he is capable of functioning within at least the average level of ability.”
[33]Mr Flowers referred to the assessment carried out by Nicola Stanley of the Peach organisation in November 2004, in which she mentioned that Reuben would benefit from a part-time ABA programme (the italics are mine). Due to the importance of Mr Flowers’ conclusions in relation to the Tribunal’s decision, I shall set them out extensively:
“Reuben’s Non-verbal or performance ability has been currently assessed to be at least at a low average level and is highly likely to be at least at an average level. This means that his rate of non-verbal learning can be expected at a similar level to that of a normal child. He clearly has a weakness in his ability to use language and this is currently at a severe level of disability. Reuben clearly is able to learn within a one to one context on a very structured programme as provided by an ABA therapist. Initially even on a limited intervention of 5 sessions per week resulted in dramatic progress. When the ABA form of therapy is not implemented Reuben’s rate of learning or progress decreases to below what could be expected of an autistic child of nearly average non-verbal ability with significant verbal disabilities. The initial set of school reports of Reuben’s progress to July 2004 does not easily discriminate between the work that was initially conducted with him by the ABA therapist in Russia and the effects of the first 8 months of school intervention. It is likely that when compared to his previous rate of learning it decreased during this time leading to the comments made by Karen Massey in her review of progress conducted in August 2004. The second set of school reports April 2005 also incorporates the work of a home school programme conducted in the afternoons. Even with both interventions (home and school) the rate of learning particularly in the verbal area does not appear to approximates an average rate of learning. Recent research conducted with children with similar levels of difficulty as Reuben indicate that a strict ABA approach is more effective than various combination treatments. Refer Howard, S., Sparkman, C., Cohen. H. Green, G. and Stanislaw, H. 2005. in their recent report “A comparison of intensive behaviour analytic and eclectic treatments for young children with autism”
. Published in Research in Developmental Disabilities, 26, 359-383. Of particular note is the near normal or above normal average learning rates attained by the students on the intensive ABA programme in all skill areas including Receptive and Expressive Language. The non-intensive ABA groups approximated normal learning only in the Motor and Non-verbal areas. Of concern was the observation that ‘The non-intensive “eclectic” treatment experienced by our GP group (15 hours per week of developmentally appropriate’ activities and sensory experiences provided in a 1:6 adult: child ratio) was not just ineffective; it produced negative mean change scores in multiple skill domains. In short, the effect of ‘eclectic’ treatment on both the AP and GP groups was to flatten or decrease rather than increase the slopes of the developmental trajectories of most children. Based on these findings, we would project that those children will lose more ground to their typically developing peers the longer they remain in such intervention programmes.’ These differences continued to be statistically significant on follow up. Reuben’s profile of strengths and weaknesses as well as his likely learning slope (rate of learning) is consistent with a non-intensive eclectic approach to learning. This means the longer he remains in his current setting the further behind he is likely to get from his predicted (learning rate) slope. The above observations and results clearly indicate the Reuben is highly amenable to and is very responsive to an ABA programme. It is also highly likely that his learning rate would approach the normal rate in a very structured ABA therapeutic environment. It is considered that given his level of disability and learning ability his needs are such that he requires an ABA program that is based on a 24-hour intensive ABA curriculum model.”[34]It will be seen that the reference to the report published in Research in Developmental Disabilities suggests that most children with disabilities similar to Reuben’s should have an intensive ABA programme rather than “eclectic” treatment. The contention before the Tribunal was that Queensmill was providing an “eclectic” treatment. If so, its educational methods were inappropriate for most of its pupils: a conclusion at variance with the evidence of the LEA, including the OFSTED report. Quite what is meant by “flatten or decrease the slopes of the developmental trajectories of most children” I find elusive. In addition, the comparator used in the report was a group with an adult to children ratio of 1:6, far below that at Queensmill. The adult to children ratio of the group receiving ABA is not specified.[35]Reuben’s parents also put before the Tribunal the short report of Karen Massey of June 2003, which had recommended intensive ABA. Kay Vrahimis, one of the ABA tutors who had been seeing Reuben since 26 July 2005, had prepared a progress report for the period to 22 August 2005. It stated that since the start of the programme, Reuben had “made good progress in his ability to tolerate and attend to activities for greater periods of time spent at the table. Reuben’s concentration and vocal involvement have improved greatly. … Since the start of this programme Reuben has gained a number of motor imitation skills.”[36]Kate Wolff, a therapist using ABA, had prepared a number of graphs showing Reuben’s behaviour over the period between July and October 2005. Generally, they seemed to show a rapid increase in a number of abilities, followed by a levelling-off of improvement.

The first hearing

[37]At the first hearing, on 14 November 2005, the LEA was represented by Mr Ghosh, an experienced advocate before SENDISTs. Reuben’s parents were represented by a solicitor, Mr Felix Moss, who also has considerable experience of education cases. Oral evidence was given by Mr Dyer, Ms Harker, Mr Flower, and Miss Harrison of Rainbow School.

The first decision

[38]The relevant paragraphs of the first decision were as follows:
“(ii) Reuben has made remarkable progress with ABA, both in 2003 and in 2005, even though the periods of time were relatively brief. We accepted the evidence of Mr Pivcevic, Ms Goh, Ms Massie and Mr Flower on this point. Ms Woolf’s graphs provided firm evidence, backed by data, that Reuben was making very significant improvements over relatively short periods of time. (iii) We concluded from this evidence that successful intervention by way of an ABA programme could result in significant improvement of his verbal skills. (iv) The success of ABA indicates the Reuben responds well to structured 1:1 intensive tuition. We accepted the evidence of his class teacher, Ms A Smith, that he was highly receptive to direct teaching and learned quickly with visual support, quick tasks and repetition. (v) Reuben appears to learn less well in groups. Ms Smith reported that he had difficulty and became easily distracted and started to ‘dream and chatter to himself’. Mr Flower observed at school the he was ‘on task’ for much less of the time in group teaching. (vi) We accepted the evidence of Mr Flower, Mr Pivcevic and Ms Goh that the rate of Reuben’s progress in verbal skills at Queensmill in 2004 had been slow, and noticeably less than during the two ABA programmes. We concluded that much of the progress in verbal skills made by Reuben during 2005, relied on by Ms Harker, was probably attributable to the home programme, not the teaching at Queensmill. We noted, that Ms Smith, in April 2005, reported progress in areas of receptive and expressive language which were targets of his home based verbal behaviour programme. (vii) The LEA’s assertion that the principles underpinning ABA were in use at Queensmill, although not labelled at such, was not substantiated by the evidence. Ms Harker was unable to point to aspects of the teaching which utilised ABA principles, despite considerable prompting from the Tribunal. The 1:1 teaching at Queensmill, relied on by Mr Ghosh, was not the structured, intensive teaching which was central to an ABA programme. (viii) MS Harker agreed that the approach at Queensmill was not ABA based and was ‘eclectic’. We accepted Mr Flower’s evidence that, in Reuben’s particular case, this non-intensive eclectic form of education was less effective than an intensive ABA programme, and could flatten or decrease the rate of his developmental progress. (ix) We considered it highly significant that the headteacher of Queensmill and the LEA gave Reuben’s parents permission to remove him from full time school for three afternoons a week, in January 2005, to provide him with ABA and a verbal behavioural programme. We concluded that the headteacher and the LEA would not have agreed to this course of action unless they believed that the ABA and VB programmes would meet Reuben’s needs. Ms Harker said that the headteacher had agreed to this in order to work in partnership with the parents. Mr Ghosh said that the LEA did not agree with the decision. We felt that this was an attempt to explain away a decision which the LEA would have allowed Reuben to be absent from school if they thought the ABA and VB programmes did not benefit Reuben educationally. (x) It was common ground between the LEA and the parents that it was not desirable for Reuben to continue with part time school and part time ABA. (E) We concluded that Reuben’s educational needs required provision of an intensive structured ABA programme. The educational provision at Queensmill was not adequate to meet Reuben’s needs in relation to his verbal skills. In the circumstances, the appropriate placement was the Rainbow School, which could provide Reuben with the intensive, structured ABA programme which he required. Although Rainbow School would be considerably more expensive for the LEA to fund, we did not accept that this would be an inefficient use of resources or unreasonable public expenditure, since the placement was necessary to meet Reuben’s special educational needs, and the current place was not adequate.”

The application for a further hearing

[39]As indicated above, the LEA was understandably taken aback by the Tribunal’s decision. Its implication was that Queensmill was not providing suitable education for any of the pupils with autistic spectrum disorder for whom it catered. By letter dated 5 December 2005 the LEA applied under regulation 37 of the Tribunal Regulations for the decision to be reviewed, on the ground that there were obvious errors in the decision, and that the comments and conclusions of the Tribunal in relation to the standards and appropriateness of provision for pupils with autism at Queensmill were unjust, and the interests of justice therefore required the review. The letter set out against specified paragraphs of the first decision of the Tribunal the basis of the allegation that there were obvious errors in the decision. The chairman had power to reject the application on the ground that it had no reasonable ground of success (regulation 37(3)), but did not exercise it, and the Tribunal agreed to review its first decision. The review hearing took place on 7 March 2006. Again, both parties were represented. On this occasion, the LEA was represented by Mr J Keever, an LEA SEN Adviser and educational psychologist who had not been present at the first hearing; its witness was Ms Harker. Reuben’s parents were again represented by Mr Moss; their witnesses were again Mr Flower and Ms Harrison.[40]The Tribunal refused to alter its decision. It addressed each of the matters relied upon by the LEA, and gave its reasons for rejecting them. A number of the matters relied upon by the LEA consisted of new evidence that could have been presented to the Tribunal at the first hearing. The Tribunal rightly refused to take account of that evidence in deciding whether it should alter its original decision.

The applicable procedural regulations

[41]Regulation 36(2) of the Special Educational Needs Tribunal Regulations 2001 is as follows: The decision of the tribunal may be given orally at the end of the hearing or reserved and, in any event, whether there has been a hearing or not, shall be recorded forthwith in a document which save in the case of a decision by consent, shall also contain, or have annexed to it, a statement of the reasons (in summary form) for the tribunal’s decision, and each such document shall be signed and dated by the chairman.[42]Regulation 37 provides, so far as relevant: (1) A party may apply to the Secretary of the Tribunal for the decision of the tribunal to be reviewed on the grounds that- (a) its decision was wrongly made as a result of an error on the part of the tribunal staff; (b) a party, who was entitled to be heard at the hearing but failed to appear or to be represented, had good and sufficient reason for failing to appear; (c) there was an obvious error in the decision; or (d) the interests of justice require. (a) its decision was wrongly made as a result of an error on the part of the tribunal staff; (b) a party, who was entitled to be heard at the hearing but failed to appear or to be represented, had good and sufficient reason for failing to appear; (c) there was an obvious error in the decision; or (d) the interests of justice require.

(a) The conduct of the hearings before the Tribunal

[43]The grounds of appeal did not appear to allege that there had been any procedural defect or impropriety on the part of the Tribunal. For this reason, the Tribunal followed the normal practice of not appearing on the appeal. However, in the course of the hearing of the appeal it became clear that the LEA considered that there had been a defect in the Tribunal’s procedure. In Mr Dwyer’s second witness statement, he stated that it was his recollection that the Tribunal had instructed the parties that they would ask questions and seek any required clarification from all witnesses, and that all witnesses should wait to be asked before contributing. The LEA contended that it had been unable to present its case fully or fairly.[44]This allegation led to a flurry of activity. Mr Moss, who had appeared on behalf of Reuben’s parents, made a third witness statement, in which he stated that Mr Dwyer’s account of the proceedings was inaccurate. Mr Dwyer had not been present at the review hearing. Mr Moss stated that the Tribunal had not, at either hearing, limited any witness from giving evidence or from contributing. At the end of both hearings the Tribunal had, as is customary, expressly given both sides an opportunity to adduce any further evidence or to deal with any issues not already dealt with. He pointed out that the LEA had not raised any issue of procedural unfairness at the first hearing, or when applying for the review hearing, or at the review hearing. The Treasury Solicitor wrote to the Court, explaining why it had not earlier been appreciated that the LEA was alleging or relying on any alleged procedural impropriety, and enclosing a statement of the chairman of the Tribunal, Beverley Lang QC, in which she addressed and refuted the LEA’s allegation.[45]As I indicated during the hearing of the appeal, in these circumstances the LEA has not established that either of the decisions of the Tribunal was marred by any procedural defect or impropriety.

(b) Other grounds of appeal

[46]Essentially, the LEA’s grounds of appeal may be distilled into the following:(a) There was no evidence to support the key findings of the Tribunal.(b) The Tribunal’s decision was irrational.(c) The Tribunal applied an incorrect test: although the wording of their first decision suggests that they determined whether Reuben would not receive an adequate education at Queensmill, but would do so at the Rainbow School, in substance the conclusion they reached was that Reuben would receive a better education at the Rainbow than at Queensmill.(d) The Tribunal failed to give adequate reasons for their decision.[47]Mr Friel, for Reuben’s parents, submitted that none of these grounds had been established.[48]Subject to the issue I refer to below, the difficulty of the LEA in relation to the first of these grounds is that the Court does not have before it any record of the oral evidence given before the Tribunal. It does not follow from the fact that there is no support for a particular finding of the Tribunal in the documentary material before them that there was no other evidence on the basis of which they could properly base their finding. The LEA had requested disclosure of the chairman’s notes of evidence, alleging that the decisions of the Tribunal did not accurately record the evidence that had been given, and asserting that there was disagreement between the parties as to what had occurred. Disclosure of the notes of evidence had been refused by the Treasury Solicitor, on behalf of the Tribunal, relying on Fisher v Hughes [1999] Ed C Reuben 409, [1998] ELR 475, and Joyce v Dorset DC [1997] ELR 26 (cases decided under the old RSC Order 55 rule 7(4)). In the Treasury Solicitor’s letter of 29 March 2006, it was asserted that the relevant sections of the chairman’s notes had been set out in the Tribunal’s second decision. In a letter dated 5 April 2005, the solicitor for the LEA replied that:
“It would be beneficial for us to have sight of these notes”, and that “the notes would be useful given the differences between the parties”
. The LEA decided not to apply to the Court for an order for the disclosure of those notes, on the basis that the costs incurred would be disproportionate.[49]In my judgment, the Court would not exercise its power to order a Tribunal to produce signed notes of evidence merely because they would be “useful” or “beneficial” for the parties to see them. It must be shown that the notes of evidence are required fairly to determine grounds of appeal or of review which (subject to seeing those notes) appear to have a reasonable prospect of success. Where there is an apparently substantial allegation that there was no evidence to support a significant finding made by the Tribunal, the notes should be produced, and in such circumstances the Court will normally if necessary make an order for their disclosure. If the notes are not disclosed voluntarily, and no application is made by the appellant for an order for their production, in a disputed case, unless it is clear from the Tribunal’s decision that its finding was not based on the oral evidence, the Court may have no means of knowing whether the finding in question was reasonably based on that evidence; and so the Court may be unable to determine whether this ground of appeal is well-founded. There may also be cases where procedural impropriety or unfairness is alleged, which the Court cannot properly determine without the chairman’s notes of evidence.[50]In the present case, in so far as the first of these grounds of appeal may turn on the oral evidence before the Tribunal, I am unable to determine whether it is well founded, and to that extent it is bound to fail.

Did the Tribunal apply the correct test?

[51]The crucial question for the Tribunal was whether Queensmill was appropriate for Reuben (see s. 324 of the Education Act 1996) or, to put it in different words, whether it was suitable for Reuben’s ability or aptitude or his special educational needs: c.f. paragraph 8(2)(a) of Schedule 27 to the Act. As Mr Greatorex correctly submitted, the question for the Tribunal was not whether he would be best educated there: the Tribunal was required to determine adequacy or suitability, not whether Rainbow would provide him with an education that was better for him than Queensmill..[52]In paragraph E of their first decision the Tribunal stated that the educational provision at Queensmill was not adequate to meet Reuben’s needs in relation to his verbal skills. However, in my judgment one does not find that conclusion adequately justified in the reasons set out under paragraph D. The fact that Reuben had made remarkable progress with ABA (paragraph (ii)) might indicate that education with ABA would be preferable, but would not necessarily mean that other forms of teaching were unsuitable. In paragraph (iii) the Tribunal concluded only that an ABA programme could result in significant improvement of Reuben’s verbal skills. The basis for the Tribunal’s apparent view that his progress in areas of receptive and expressive language reported by his teacher in April 2005 was due to his home-based verbal behaviour programme rather than his education at Queensmill is not stated. What the Tribunal accepted so far as Mr Flower’s evidence was concerned was that the form of education at Queensmill was less effective than an intensive ABA programme (i.e., a comparison rather than a finding of inadequacy at Queensmill), and that it could flatten or decrease the rate of developmental progress. They did not find that it would do so. In any event, I do not accept that a flattening or decrease in the rate of progress necessarily means that an educational provision is unsuitable or inappropriate. It does not mean that progress ceases.[53]I am concerned by the Tribunal’s rejection of the evidence of Ms Harker referred to in paragraph (ix). What was apparently rejected there was not the correctness of a judgment or assessment or opinion of Ms Harker, but the correctness of her factual evidence on the reason for Queensmill permitting Reuben to be absent for his ABA and VB programme. I should have expected a more convincing reason for the rejection of this factual evidence given by a professional teacher at the school, particularly since this issue was regarded by the Tribunal as “highly significant”. In the absence of the notes of evidence, I do not know whether Ms Harker gave first-hand evidence or evidence of her belief as to the reason for the headteacher’s agreement to Reuben’s absences. There was no evidence, apparently, as to the LEA’s motivation. In these circumstances, I conclude with considerable diffidence that the Tribunal was entitled to make the finding it did.[54]I turn to consider the second decision.

The second decision

[55]Mr Greatorex rightly accepted that the Court should have regard to the reasons given on a review under regulation 37 when deciding whether adequate or lawful reasons were given for the first decision. I also accept his submission that the Court should approach the reasons given by a Tribunal on a review with caution, having regard to the requirements of the Regulations and the risk of subsequent (otherwise known as ex post facto) justification of the earlier decision.[56]For present purposes, I can leave out of account those parts of the second decision that relate to the attempt of the LEA to adduce evidence that had been available to it at the time of the first hearing.[57]In paragraphs 20 to 24 of their second decision, the Tribunal addressed the finding that they had made in paragraph D(ix) of their first decision. I do not find in the notes of the evidence given at the first hearing that are set out in the second decision anything to cast doubt on the honesty or accuracy of Ms Harker’s evidence on this point. The Tribunal gave lengthier reasons for their conclusion that the headteacher and the LEA would not have agreed to Reuben’s absences unless they thought that the ABA and VB programmes would benefit him educationally. The finding that they considered that those programmes would benefit him educationally is not the same as a finding that they accepted that the programme at Queensmill was unsuitable or inadequate. I am unable to conclude that the Tribunal’s finding, expressed as it is, was perverse or one for which there was no basis.[58]Paragraphs 35, 36 and 37 of the Tribunal’s second decision are as follows:
“35. We were impressed at the appeal by the careful analysis which Mr Flower carried out on all the available evidence of Reuben’s development, and we accepted the main conclusions in his report, namely that Reuben made good progress on a 1:1 structured ABA programme, but when the ABA form of therapy was not implemented, his progress decreased to below the level to be expected of an autistic child of his level of ability. Mr Flower’s analysis was supported by the powerful evidence or Mr Pivcevic and Ms Goh, describing the remarkable progress in verbal skills their son had made on the ABA programme, contrasted with the lack of progress at Queensmill. We were satisfied that in 2004 the parents had genuine concerns regarding Reuben’s lack of progress at Queensmill, although initially they had been very pleased to get a place there. This is confirmed in the report by Ms Massey of the assessment they sought in August 2004. The progress made by Reuben was also recorded in Dr Wolff’s evidence (the graphs and data-based evidence now criticised by the LEA). Ms Massey, the clinical psychologist, who had assessed Reuben both in June 2003 and August 2004, confirmed the progress made with the early, limited ABA programme, and that his rate of progress during 2004 at Queensmill did not match his abilities. 36. In reaching this view, in favour of the evidence presented on behalf of the parents, and against the LEA, we carefully considered the oral and written evidence of Reuben’s progress at Queensmill, set out in the Annual Reviews, the reports of Mr Dwyer, and the oral evidence of Ms Harker and Mr Dwyer. The essence of the LEA’s case was that Reuben was making satisfactory progress at Queensmill. We were unable to accept this, and we preferred the conflicting evidence adduced on behalf of the parents, summarised in paragraph 35 above. 37. Mr Ghosh, Mr Dwyer and Ms Harker did not effectively address, or contradict, the evidence form Mr Flower, Mr Pivcevic, Ms Goh and Ms Massey of the remarkable progress made by Reuben when on ABA programmes. Although the LEA and Mr Dwyer have since made critical observations on the data and report of Dr Woolf, these points were not made at the appeal.”
[59]I am driven to the conclusion that these paragraphs show that the Tribunal had applied, or at least was applying, the correct test to the principal issue it had to decide. They concluded that Reuben’s progress at Queensmill had not matched his abilities, at least until he had had the benefit of an ABA and verbal behaviour programmes: i.e., that his education there had not been suitable for him. Adequate reasons were given for this conclusion. I approach these reasons with a degree of caution; but I do not think it would be right to reject them as not representing the reasons for the original decision.[60]During the hearing before me, cogent criticisms were made of the evidence relied upon by Reuben’s parents and the Tribunal. However, this is not an appeal on fact, but only of law. Moreover, those criticisms could and should have been made at the first hearing before the Tribunal. I suspect that if they had been, the Tribunal would have reached a different conclusion.[61]Ultimately, therefore, I conclude, with considerable reluctance and no little hesitation, that this appeal should be dismissed. If this had been an appeal on fact, the result might have been different; but it is not. The LEA has not established any of its grounds for interfering with the decision of the Tribunal.

A final observation

[62]Finally, I should like to say this. In his skeleton argument and in his oral submissions, Mr Greatorex submitted that the very considerable financial consequences to the LEA of the Tribunal’s decision required it to “approach its task with proportionately greater care than might be expected or required in cases where much smaller amounts are at stake”. I do not think that the financial consequences of a tribunal’s decision is the sole or major criterion for the care required of it, particularly in the case of the SENDIST, where the future of a child may be at stake. Of course, there is a difference between a case where the only unresolved difference between the parties is relatively minor (such as a minor difference in the number of hours of therapy per week to be provided); but a dispute as to the nature of the education required by a child is important even if the costs implications are themselves minor. But if a considerable amount of money turns on a decision of a tribunal, it is incumbent on the LEA itself to prepare for and to conduct its case with greater care. There is otherwise a danger that the Tribunal will not have before it all of the evidence and information that the LEA should properly rely upon, with a danger that a decision will be made that would not have been made if the LEA had properly prepared its case. The present case demonstrates the risk to an LEA if it does not present to the Tribunal the documentary evidence and available criticisms of the evidence it has to meet. It is inappropriate to blame the Tribunal for failing to scrutinise critically the evidence that should have been so scrutinised by the LEA itself.

Cited in 1 later judgment