A, R (on the application of) v Hertfordshire County Council [2006] EWHC 3428 (Admin)

Case No CO/5861/2006[2006] EWHC 3428 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 20th December 2006
Strand
London WC2
B E F O R E:
HIS HONOUR JUDGE GILBART QC
Between
THE QUEEN ON THE APPLICATION OF AClaimant-v-
Between
HERTFORDSHIRE COUNTY COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications CompanySmith Bernal Wordwave Limited190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
MR S GRODZINKSI (instructed by TSS Law) appeared for CLAIMANTMR N SHELDON [MISS J CLEMENT attended for judgment](instructed by Hertfordshire County Council) appeared on behalf of the DEFENDANT
J U D G M E N T
[1]In this matter the Claimant parents appeal against the decision of the Special Educational Needs and Disability Tribunal ("SENDIST") of 20th June 2006. That Tribunal had rejected the appeal of the Claimant parents against the terms of Part 4 of the Statement of Special Educational Needs made by Hertfordshire County Council in respect of their daughter.[2]For the purposes of this judgment I shall refer throughout to the claimants as Mr and Mrs A and to their daughter as D, so that their identity is protected. The title of the judgment will appear as A v Hertfordshire County Council.[3]D is now 11 years old. She has been diagnosed with ataxic hypotonic cerebral palsy and global development delay. She has severe learning difficulties. Hypotonia affects her musculature. Her hips are dislocated and she has a mild scoliosis. She has the motor skills of a child of 7 to 10 months, the socialisation of a child between 4 and 9 months (depending on the function in question), the daily living skills of a child between 7 and 18 months (again depending on the skills in question), the communication skills of a child of between 13 months and 18 months (of which 13 months are expression and 18 months for receptive skills).[4]Happily, she has some character. She is described in a report from her current school as "delightful . . . strong willed and can be determined to have her own way". She has the ability to recognise and use symbols on a Tech Talk machine. She enjoys music and can recognise her favourite songs. She can call out and point to objects, and can make noises and point to objects which she wants adults to bring to her. She can make noises to show that she is happy. She enjoys hearing songs and has some favourites. She also has favourite books which she likes being read to her. She enjoys the company of other children, but prefers that of adults. She is taken swimming, which she enjoys, and has been taught how to float independently and propel herself with her hands. She uses a pony walker, and can propel herself independently. She takes part in music sessions and can hold an instrument. She has been taught how to pick up objects and move them, and has been making some progress. She can use a crayon or brush to make marks and prefers to do so independently. She can use a feeder cup and can feed herself with help in loading the spoon. She needs help in dressing but cooperates by pushing her arms in and out of her clothes. She is not continent and wears nappies rather than being placed on the toilet.[5]She requires care throughout the day.[6]She comes from a very caring Orthodox Jewish family. The statement which they put into SENDIST shows that she enjoys the family life which is a central part of Jewish culture, and is familiar with the observation of the Sabbath. The family describe the excitement and enjoyment she feels during the weekly Sabbath and at festivals.[7]The family is caring indeed. The responsibility of looking after D is a very heavy one, and they are understandably concerned to see her looked after and educated in life skills as far as possible. I am impressed by the dignity they have shown in these proceedings, and the obvious care for their daughter given the very substantial burdens placed upon them by her disabilities.[8]As D has approached the age of 11, the question has arisen of the appropriate educational provision to be made for her secondary education. Hertfordshire County Council prepared a statement of needs under section 324 of the Education Act 1996. That identified at Part 3 the objectives of Special Educational Provision for D, and the educational provision required. With amendments later agreed to by Hertfordshire in a document which is called "Working Document for SEN Tribunal", Part 3 read:
"a) OBJECTIVES 1. To develop and improve [D's] early learning skills and cognitive development. 2. To develop and improve [D's] linguistic and communication skills. 3. To develop and improve [D's] mobility and gross and fine motor skills. 4. To develop and improve [D's] independence and self-help skills. 5. To develop and improve [D's] social interaction and awareness of others. b) EDUCATIONAL PROVISION to meet the needs and objectives The following provision is set out to corresponded numerically with the Objectives listed above. The school should provide [D] with an Individual Education Plan which addresses the Objectives of this Statement and is compiled in collaboration with her parents and other professionals involved. This should be reviewed termly. Educational 1. The school will provide [D] with a caring and supportive environment in which she will be given access to a broad and stimulating multi-sensory based curriculum, appropriately differentiated to enable her to develop her learning skills and conceptual understanding. Opportunities will be provided for considerable one to one and small group work and access to computer programmes with appropriate learning software. Strategies will be employed aimed at developing [D's] ability to make choices and exert more control over her environment. Communication 2. With the advice of a Speech and Language Therapist programmes will be devised to develop and improve [D's] alternative and augmentative communication skills. These programmes will be specifically aimed at developing her yes/no and other communicative responses. The programmes will be delivered on a daily basis either individually or in small groups by teaching or support staff as appropriate. Motor and Sensory Skills The school will provide [D] with a highly structured educational programme designed to improve her mobility and to develop her gross and fine motor skills. These programmes will be devised by a fully qualified physiotherapist and occupational therapist and delivered by teaching and support staff [on a daily basis]. [D] will receive [10] sessions per annum of specialist physiotherapy and [10 sessions of] occupational therapy for the forthcoming academic year or until the next review. Each session will last approximately for one and a half hours and will consist of any of the following: • observation • assessment (either formal or informal) • direct intervention (either individual or in a group) • demonstration of specific activities • training of teaching/support staff • joint planning with teaching/support staff of appropriate targets for inclusion in the IEP • attendance at review meetings • liaison with parents, carers and other professionals • writing of report and programmes [D] will be given support to ensure that she is able to access the curriculum and classroom equipment safely. These programmes will be designed in close association with a physiotherapist and an occupational therapist as appropriate and [D's] equipment requirements will be provided in accordance with supporting advice from the relevant professionals. [Hydrotherapy will be provided for 2 x 20 minute sessions per week]. Personal, Social and Emotional 4. The school will encourage the development of self-help skills, particularly in relation to dressing skills and personal hygiene. [D] will receive sensitive encouragement, teaching and support to enable her to develop confidence, independence and motivation to overcome her difficulties. 5. [D] will be provided with adult support, intervention and mediation to promote relationships with peers to whom she can relate both socially and academically; and work with, both cooperatively and collaboratively. She will have opportunities to engage in small group activities and be encouraged to take an active part."
[9]At the end of the subparagraphs within section 3 it states:
"Good home/school links will be maintained to ensure consistency of approach. This provision will be made by the school using its existing resources."
[10]I need not refer to the next part of section 3. There is a reference then to monitoring and that is described as taking place in consultation with D's parents and the appropriate professionals to establish short-term educational targets and the strategies to meet them.[11]Section 4 of the Statement of Special Educational Needs reads thus:
"APPROPRIATE SCHOOL OR OTHER ARRANGEMENTS [D] will attend her current primary school until July 2006. From September 2006 [D] will attend [B] School, a special school which caters for children with severe learning difficulties."
[12]The parents appealed against the terms of Part 4. They contended that, first, D needed a residential school where she would live through out the year; second, her education included work to be done outside the normal school hours; third, the school was unsuitable for various reasons, including its facilities and the travel time of up to an hour in each direction from the family home; fourth, the appropriate school was the AL residential school in Berkshire.[13]The Local Education Authority resisted that appeal. It contended that, first, D's educational needs would be met by a non-residential school and she did not require 24 hour educational provision; second, the facilities at the B school was appropriate; third, the travel time was not excessive; fourth, the AL school was not suitable; finally, that it would be harmful for D to live away from home.[14]The parents obtained reports from Mr Urani, a chartered educational psychologist, Miss Judy Robertson, a speech and language therapist, Miss Sian Wilson, a paediatric occupational therapist, Miss Sara Taylor, a paediatric physiotherapist, plus other reports which were not put before me. Mr Urani gave evidence before the Tribunal, as did the head of care at the AL school.[15]The Local Education Authority, before the Tribunal, called Dr Sharp, an educational psychologist. It also called the headmaster of D's current school. The LEA produced reports from Dr Sharp, from Ms Billings, a physiotherapist who had been treating D, a Ms Emma Stevens, an occupational therapist, and also produced a combined report on physiotherapy and occupational therapy from the National Health Service Physiotherapy and Occupational Therapy Service.[16]The SENDIST decision is a substantial one but it must be read into the judgment. It appears as an appendix at the conclusion of this judgement.[17]On Ground 1, Mr Grodzinski argues that the evidence before the Tribunal showed that D required educational provision throughout the day. He says that the evidence showed without contradiction that she required a residential school so that it could be provided. He also says that the Tribunal has given no adequate reasons for rejecting the evidence of his clients' experts.[18]On Ground 2 he says that the Tribunal has given no adequate reason for rejecting his clients' case on the effects of the journey to and from school.[19]Mr Grodzinski has not put any case on the Tribunal's rejection of the AL school. He does not have to do so. If he succeeds in challenging the choice of a day school then a residential school will have to be found.[20]Section 324 of the Education Act 1996 reads:
"324 Statement of Special Educational Needs (1) If, in the light of an assessment under section 323 of any child's educational needs and of any representations made by the child's parent in pursuance of Schedule 27, it is necessary for the local education authority to determine the special educational provision which any learning difficulty he may have calls for, the authority shall make and maintain a statement of his special educational needs. (2) The statement shall be in such form and contain such information as may be prescribed. (3) In particular, the statement shall -- (a) give details of the authority's assessment of the child's special educational needs, and (b) specify the special educational provision to be made for the purpose of meeting those needs, including the particulars required by subsection (4). (4) The statement shall -- (a) specify the type of school or other institution which the local education authority consider would be appropriate for the child (b) if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement, and (c) specify any provision for the child for which they make arrangements under section 319 and which they consider should be specified in the statement. [(4A) Subsection (4)(b) does not require the name of a school or institution to be specified if the child's parent has made suitable arrangements for the special educational provision specified in the statement to be made for the child.] (5) Where a local education authority maintain a statement under this section then -- (a) unless the child's parent has made suitable arrangements, the authority -- (i) shall arrange that the special educational provision specified in the statement is made for the child, and (ii) may arrange that any non-educational provision specified in the statement is made for him in such manner as they consider appropriate, and (b) if the name of a [maintained school][or maintained nursery school] is specified in the statement, the governing body of the school shall admit the child to the school. [(5A) Subsection (5)(b) has effect regardless of any duty imposed on the governing body of a school by section 1(6) of the School Standards and Framework Act 1998.] (6) Subsection (5)(b) does not affect any power to exclude from a school a pupil who is already a registered pupil there. (7) Schedule 27 has effect in relation to the making and maintenance of statements under this section."
[21]"Special educational needs" is defined in section 312 as follows: "312 Meaning of 'special educational needs' and 'special educational provision' etc.(1) A child has 'special educational needs' for the purposes of this Act if he has a learning difficulty which calls for special educational provision to be made for him.(2) Subject to subsection (3) (and except for the purpose of [section 15A or 15B]) a child has a 'learning difficulty' for the purposes of this Act if -- (a) he has a significantly greater difficulty in learning than the majority of children of his age, (b) he has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area of the local education authority, or (c) he is under [compulsory school age] and is, or would be if special educational provision were not made for him, likely to fall within paragraph (a) or (b) when of . . . that age.(3) A child is not to be taken as having a learning difficulty solely because the language (or form of the language) in which is he, or will be, taught is different from a language (or form of a language) which has at any time been spoken in his home.(4) In this Act 'special educational provision' means -- (a) in relation to a child who has attained the age of two, educational provision which is additional to, or otherwise different from, the educational provision made generally for children of his age in schools maintained by the local education authority (other than special schools) . . . , and (b) in relation to a child under that age, educational provision of any kind.(5) In this Part -- 'child' includes any person who has not attained the age of 19 and is a registered pupil at a school; ['maintained school' means any community, foundation or voluntary school or any community or foundation special school not established in a hospital.][22]In the case of D, the activities described pursuant to section 312(4)(a) are of the kind where care and education overlap. D needs to learn all those life skills which the educational system provided for those without Special Educational Needs assumes that they have. But of course learning how to feed and communicate is as vital to D as is the ability to divide and multiply is to a child of the same age without special needs. Thus, to take an example canvassed in argument, getting D to learn how to put her coat on, which involves getting her to do it again and again, may be very difficult to distinguish from simply helping D put her coat on. Helping D load her spoon with food may be seen as a matter of her being educated in feeding herself, or as a natural part of care for a child. Mr Grodzinski says that if any activity with D involves more than care, then it amounts to education. He says (and Mr Sheldon for the Local Education Authority agrees) that it is wrong for a Statement of Educational Needs to require that educational provision is made by the parents. Mr Grodzinski then says that therefore any programme for D which involves activities thus classified outside the school day must be educational. Suppose, as here, a child attends a school and is helped to develop bodily and functional control and her life skills. As in this case that could involve learning to feed herself or put her clothes on or other matters of knowing how to look after herself. On going home, her parents would of course, in caring for her, help her with the same activities. A child being helped on with a coat is a normal incident of care. So is the encouragement of a child to communicate or play with objects. How is the line to be drawn in cases of overlap, or is one to be drawn at all?[23]That issue was addressed by the Court of Appeal in London Borough of Bromley v Special Educational Needs Tribunal and Others [1999] EWCA Civ 1490 and it is reported at [1999] ELR 260. The main judgment is by Sedley LJ. I refer to the following passages in his judgment at pages 287 and following. “The central issue is the meaning and ambit of “special educational provision” in Part IV of the Education Act 1996. It arises out of the Tribunal’s conclusion that S’s acknowledged need for physiotherapy, occupational therapy and speech and language therapy formed part of his special educational needs, with the consequence that the provision of these therapies was part of the special educational provision which the LEA must make for him. This, as will be seen, had major consequences for S’s placement and, in turn, for the cost to the LEA of providing for his special educational needs. Within Part IV of the Education Act 1996 (which is principally though not solely a consolidating statute) section 323 requires a local education authority to assess the educational needs of a child with special educational needs. If the assessment so requires, the LEA must then make and maintain a statement of the child’s special educational needs, the form and content of which are prescribed in and under section 324:
"324. Statement of special educational needs (1) If, in the light of an assessment under section 323 of any child’s educational needs and of any representations made by the child’s parent in pursuance of Schedule 27, it is necessary for the local education authority to determine the special educational provision which any learning difficulty he may have calls for, the authority shall make and maintain a statement of his special educational needs. (2) The statement shall be in such form and contain such information as may be prescribed. (3) In particular, the statement shall – (a) give details of the authority’s assessment of the child’s special educational needs, and (b) specify the special educational provision to be made for the purpose of meeting those needs, including the particulars required by sub-section (4) (4) The statement shall – (a) specify the type of school or other institution which the local education authority consider would be appropriate for the child, (b) if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement, and (c) specify any provision for the child for which they make arrangements under section 319 and which they consider should be specified in the statement. (5) Where a local education authority maintain a statement under this section, then- (a) unless the child’s parent has made suitable arrangements, the authority – (i) shall arrange that the special educational provision specified in the statement is made for the child, and (ii) may arrange that any non-educational provision specified in the statement is made for him in such a manner as they consider appropriate, and (b) if the name of a maintained, grant-maintained or grant maintained special school is specified in the statement, the governing body of the school shall admit the child to the school. A new subsection (5)(A), not material to this case, has been added by the School Standards and Framework Act 1998.] (6) Subsection (5)(b) does not affect any power to exclude from a school a pupil who is already a registered pupil there. (7) Schedule 27 has effect in relation to the making and maintenance of statements under this section."
Schedule 27 contains substantive as well as procedural provisions, but none upon which any issue in the present case turns. The form of a section 324 statement is prescribed under statutory powers by the Education (Special Educational Needs) Regulations 1994. It includes the bracketed rubric to each part of the statement which can be seen in S’s statement set out below. It is supplemented by guidance contained in a Code of Practice issued by the Secretary of State under section 313, which also makes it the duty of local education authorities and, on appeal, SENTs, to have regard to the Code’s provisions. S’s statement, following the formal introductory material in Part 1 (which included a list of 12 specialist reports on S’s needs) took the form set out in Appendix A to this judgment. The parts prescribed by the Regulations are shown there in bold type and in their full prescribed form; S’s statement, for intelligible reasons, condenses or omits some of them. The reason why nothing turns upon the LEA’s condensation of some of the prescribed rubrics in the case of S’s statement is that, by Regulation 13, a form “substantially corresponding” to that which is prescribed is sufficient; and it is plain that the references to the National Curriculum, for example, have no real relevance to a child as disabled as S. It follows from the content of S’s statement that, despite his disabilities, he is educable. The concrete challenge offered by S’s parents to the statement was to the proposal to keep him at Rectory Paddock School. Their reason, however - and this is what raises the present question of law - was that S’s needs for therapy out of school hours and out of term-time were, at least in part, educational needs, and that these could not be addressed at a day school such as Rectory Paddock. Their contention was that the special educational provision which the LEA was obliged to make for S was residential provision throughout the year. The way in which this argument was presented and the grounds upon which it succeeded can be most conveniently seen from the full text of the SENT’s decision, issued on 24th August 1998 following a hearing on the 17th July. It is set out in Appendix B to this judgment. The material conclusions of the SENT were, first, that physiotherapy, occupational therapy and speech therapy were all part of S’s educational needs, and that Part 2 and 3 of the statement should be correspondingly amended; and secondly, that S should be placed at Coney Hill School, with an appropriate amendment to Part 4. Before us, as before Owen J., the principal critique advanced by the London Borough of Bromley of the Tribunal’s decision is that it classifies or treats as educational provision forms of treatment which in law cannot be so classified or treated. In addition, Mr. Timothy Straker QC argues that the amendments to the statement ordered by the Tribunal lack specificity; and, lastly, that even if the Tribunal were entitled to allocate S’s needs and provision as they did, it did not follow that the only alternative to Rectory Paddock School was Coney Hill School, so that the LEA should have been given an opportunity - particularly in view of the fact that the true cost of the latter was not £46,000 but £63,000 a year - to put forward alternatives. This appeal therefore raises two interlocking issues: the meaning, or perhaps more accurately the limits of possible meaning, of “special educational provision” and the interpretative function of the Tribunal in relation to it. The following sections of the Act are relevant: 312 Meaning of “special educational needs ” and “special educational provision” etc (1) A child has “special educational needs” for purposes of this Act if he has a learning difficulty which calls for special education provision to be made for him. (2) ... a child has a “learning difficulty” for the purposes of this Act if –he has a significantly greater difficulty in learning than the majority of children of his age, [or] (b) he has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area of the local education authority ... ........ (4) In this Act “special educational provision” means – (a) in relation to a child who has attained the age of two, educational provision which is additional to, or otherwise different from, the educational provision made generally for children of his age in schools maintained by the local education authority (other than special schools) or grant-maintained schools in their area, ..... 319 Special educational provision otherwise than in schools (1) Where a local education authority are satisfied that it would be inappropriate for – (a) the special educational provision which a learning difficulty of a child in their area calls for, or (b) any part of such provision to be made in a school, they may arrange for the provision (or, as the case may be, for that part of it) to be made otherwise than in a school. (2) Before making an arrangement under this section, a local education authority shall consult the child’s parent. 322. Duty of Health Authority or local authority to help local education authority (1) Where it appears to a local education authority that any Health Authority or local authority could, by taking any specified action, help in the exercise of any of their functions under this Part, they may request the help of the authority, specifying the action in question. (2) An authority whose help is so requested shall comply with the request unless (a) they consider that the help requested is not necessary for the purpose of the exercise by the local education authority of those functions, or (b) subsection (3) applies [viz the Health Authority consider compliance unreasonable having regard to their resources, or a local authority consider the request incompatible with or unduly prejudicial to their own functions]. Section 324 is set out earlier in this judgment. It is important to observe in relation to it that, in addition to the requirement in subsection (4)(c) that the statement must spell out any requisite non-school educational provision under section 319, subsection (5)(a) differentiates explicitly between special educational provision and “non-educational provision”. It thus anticipates that both will appear in the statement, and it prescribes a duty on the LEA to arrange for the former and a discretion in the LEA to arrange for the latter. As has been seen, the form prescribed by the Regulations adopts the dichotomy. Section 333 of the Act begins:
"(1) There shall continue to be a tribunal known as the Special Educational Needs Tribunal which shall exercise the jurisdiction conferred on it by this Part."
The material element of the Tribunal’s jurisdiction is this: 326. Appeal against contents of statement (1) The parent of a child for whom a local education authority maintain a statement under section 324 may – (a) when the statement is first made, (b) where the description in the statement of the authority’s assessment of the child’s special educational needs, or the special educational provision specified in the statement, is amended, or (c) where, after conducting an assessment of the educational needs of the child under section 323, the local education authority determine not to amend the statement, appeal to the Tribunal against the description in the statement of the authority’s assessment of the child’s special educational needs, the special educational provision specified in the statement or, if no school is named in the statement, that fact. ........ (3) On an appeal under this section, the Tribunal may – (a) dismiss the appeal, (b) order the authority to amend the statement, so far as it describes the authority’s assessment of the child’s special educational needs or specifies the special educational provision, and make such other consequential amendments to the statement as the Tribunal think fit, or (c) order the authority to cease to maintain the statement. (4) On an appeal under this section the Tribunal shall not order the local education authority to specify the name of any school in the statement (either in substitution for an existing name or in a case where no school is named) unless – (a) the parent has expressed a preference for the school in pursuance of arrangements under paragraph 3 (choice of school) of Schedule 27, or (b) in the proceedings the parent, the local education authority, or both have proposed the school. (4) Before determining any appeal under this section the Tribunal may, with the agreement of the parties, correct any deficiency in the statement. Provision is also made by and under section 328 for regular by the LEA review of the contents of statements. Although before both Owen J. and this court reference has been made to dictionary definitions of the word “education”, the word is protean. It can range from a meaning as narrow as instruction in numeracy and literacy to the Renaissance concept adopted by Lord Hailsham LC in Inland Revenue Commissioners v. McMullen [1981] AC 1, 16. It is, however, of interest that the generous meaning of education adopted by Lord Hailsham in relation to charitable trusts was derived by him from sections 7 and 53 of the Education Act 1944. The material words of the first of these sections are now to be found in section 351(1) of the 1996 Act:
"The curriculum for a school satisfies the requirements of this section if it is a balanced and broadly based curriculum which – (a) promotes the spiritual, moral, cultural, mental and physical development of pupils at the school and of society, and (b) prepares pupils at the school for the opportunities, responsibilities and experiences of adult life.” The section goes on to require the Secretary of State, LEAs, governing bodies and head teachers to work towards these aims. Without doubt, therefore, Parliament has historically adopted and continues to adopt a catholic view of the reach of state education. It does not necessarily follow, however, that the approach can be straightforwardly translated into the statutory regime for children with special educational needs. The particular question which repeatedly arises is whether the physical and emotional help required by many of the children who have such needs lies within the sphere of education or of treatment. The existing provision for children with special educational needs derives from the 1978 report of the Committee of Enquiry into the Education of Handicapped Children and Young People (Cmnd 7212), known as the Warnock Report after the Committee’s distinguished Chairman, now Baroness Warnock. She spoke (paragraph 3.19) of the likelihood that special educational need would include “the provision of special means of access to the curriculum through special equipment, facilities or resources, modification of the physical environment or specialist teaching techniques.” She noted (paragraph 6.11) the variety of institutions, many of them outside mainstream educational provision, needed to cater for different kinds of special educational need. And she devoted a chapter (Chapter 15) to the role of the Health Service and the personal social services in meeting special educational needs, singling out (paragraphs 15.31 to 3) speech therapy, physiotherapy and occupational therapy as potentially integral elements in special educational provision. The White Paper containing government’s response, Special Needs in Education (Cmnd 7996, 1980), accepted (paragraph 69) that “for many children with special educational needs, a wide range of services needs to be made available by social services departments and Health Authorities; and voluntary organisations also have an important role.” Although, therefore, the consequent provision made by the Education Act 1981, now to be found in Part IV of the Act of 1996, had behind it a clear recognition of the possible range of special educational needs, it is to the meaning and effect of the legislation itself that attention must principally be directed in deciding where the obligation of local educational authorities to make special educational provision ends, and whether it is here or elsewhere that their power to make ancillary provision begins. Until the welcome setting up of the Special Educational Needs Tribunals by the Education Act 1993, challenges to LEAs’ statement, could be made only on questions of law by way of judicial review. In one such case, R. v. Lancashire County Council, ex parte M [1989] 2 FLR 279, this court upheld the conclusion of a Divisional Court that speech therapy was capable of forming part of “special educational provision” within the regime now found in Part IV of the 1996 Act. From that point it was, at least in principle, for the LEA to decide whether particular speech therapy for a particular child ought or ought not to be listed in Part 3 of the child’s statement. In the new regime, the first independent arbiter of this question is the Tribunal. Unlike the High Court, it is a specialist tribunal with a lawyer chairman and lay members chosen for their knowledge and experience (see section 334(2) and the Special Educational Needs Tribunal Regulations 1995, Regulation 3). In my view this restructuring has jurisprudential implications. Where previously the parent’s only resort from the local education authority was to the court, which had therefore to do its best to construe the statutory language insofar as construction was an appropriate exercise, there is now interposed a specialist tribunal whose remit is not necessarily the same. In particular, where a court has to limit itself to the interpretation of terms of legal art and the setting of outer limits to the meaning of ordinary words in their statutory context, the Tribunal is empowered to take a much closer look at the content of the LEA’s statement. Indeed for many purposes it stands in the LEA’s shoes, re-evaluating the available information in order if necessary to recast the statement. But in carrying out this function it also has a supervisory role - to interpret and apply the relevant law. Where that law is expressed in words which, while not terms of legal art, have a purpose dictated by - and therefore a meaning coloured by - their context, it is clearly Parliament’s intention that particular respect should be paid to the Tribunal’s conclusions. By virtue of the Tribunals and Inquiries Act 1992, section 11, the High Court retains an appellate jurisdiction which undoubtedly requires it to intervene where an error of law or jurisdiction or due process can be shown; but the area of expert judgment bounded by the High Court’s jurisdiction is large. This is so both because the nature of the subject matter of appeals to and from the SENT makes it appropriate and because the statutory scheme requires it. In G. v. Wakefield City MAC [1998] 96 LGR 69, Laws J. said: "
It will be obvious that, notwithstanding Parliament’s lexicon in section 312, the concepts of “learning difficulty” and “special educational provision” are not tightly defined. The Court of Appeal has held in R. v. Lancashire County Council, ex parte Moore (1989) 86 LGR 567 that speech therapy may or does fall within the meaning of “special educational provision”. What I think clear is that measures taken by a local education authority which are subject to appeal before the SENT under section 326 must be correctly related to the child’s learning difficulties. Economic problems faced by the child’s parents, where for example different and perhaps more spacious living accommodation would in an ideal world be suitable for the family because of the child’s physical disabilities, are not ordinarily within the remit of the SENT. Nor are difficulties associated with the parent’s disabilities, where the effect is that the child is, in physical terms, more difficult to look after. Problems of this kind, in my judgment, will generally fall to be dealt with not under the 1996 Act, but (so far as they may be met by public provision) under social welfare measures made in other statutes and delegated legislation. However, while that is, in my judgment, the general position, I should say that I certainly accept that there is no hard edge. As a matter of common sense and ordinary human experience conditions in the home are almost always bound to have some effect, for better or worse, on a child’s learning capacity and educational chances. That is a general fact of family life; but for present purposes it must be distinguished from circumstances, which I acknowledge it is clearly possible to envisage, where some kinds of day to day domestic problems may directly relate to the child’s learning difficulties. Such a direct relation must in my judgment be shown in order to involve such problems in the Tribunal’s jurisdiction under section 326." This exegesis, helpful as it is, poses a further question in the present case: are the therapies which S needs directly related to his learning difficulties? This, once again, must be principally a matter of judgment first for the LEA and then for the SENT. If it is contested as a question of law, it is to the statute that the court must turn for the answer. The Tribunal in the present case posed the question for themselves in exactly the terms described by Laws J., and they answered it in the affirmative. Mr. Straker submits that the character of the therapies which S needs is such that to treat them as part of his special educational provision is to collapse the distinction which the Act itself recognises between educational and non-educational provision. If regard is had, as the law requires, to that distinction, the therapeutic provision required by S can only be allocated, Mr. Straker submits, to the non-educational category. Mr. Straker accepts, however, that the medical and the educational are not mutually exclusive in this context, and he offers the following formula for non-educational provision:
"The family or social support given to the child, together with his lifetime health and welfare support, enabling him to lead as normal a life as possible."
Mr. Richard Gordon QC for the parents does not demur to this formula; but he resists any proposition that there is between the educational and the non-educational a “hard edge”, in Laws J’s phrase, or a common frontier, as it was put in argument. There is, he suggests, an area of potential overlap in which either description or both can properly be applied. Equally, Mr. Gordon submits, the Act does not warrant a division between educational and non-educational provision depending upon when or where it is made: that is to say in or out of school term or school hours, or in or outside school premises. Any of these may be useful guides, but none can, conformably with the Act, be treated as legally definitive. If one returns to sections 312 and 324, some indications of Parliament’s intention begin to emerge. Special educational provision is, in principle, whatever is called for by a child’s learning difficulty. A learning difficulty is anything inherent in the child which makes learning significantly harder for him than for most others or which hinders him from making use of ordinary school facilities. What is special about special educational provision is that it is additional to or different from ordinary educational provision (see section 312(4)). So far the meaning is open ended. It is when it comes to the statement under section 324 that the LEA is required to distinguish between special educational provision and non-educational provision; and the prescribed form is divided up accordingly. Two possibilities arise here: either the two categories share a common frontier, so that where the one stops the other begins; or there is between the unequivocally educational and the unequivocally non-educational a shared territory of provision which can be intelligibly allocated to either. It seems to me that to adopt the first approach would be to read into the legislation a sharp dichotomy for which Parliament could easily have made express provision had it wished to do so, but which finds no expression or reflection where one would expect to find it, namely in section 312. Moreover, to interpose a hard edge or a common frontier does not get rid of definitional problems: it simply makes them more acute. And this is one of the reasons why, in my judgment, the second approach is the one to be attributed to Parliament. The potentially large intermediate area of provision which is capable of ranking as educational or non-educational is not made the subject of any statutory prescription precisely because it is for the local education authority, and if necessary the SENT, to exercise a case-by-case judgment which no prescriptive legislation could ever hope to anticipate. The potential breadth of what can legitimately be regarded as educational is illustrated by section 322, permitting as it does the enlistment by the LEA of other statutory providers to “help in the exercise of any of their functions under this Part”. It is true that the LEA’s functions (which include both powers and duties: see section 579(1)) will include the elective making of arrangements for non-educational provision as well as the mandatory making of arrangements for educational provision pursuant to section 324(5)(a); but it is the fact that health, social services and other authorities can be enlisted to help in the making of special educational provision which gives some indication of possible breadth of the duty. For these reasons I prefer Mr. Gordon’s approach to the meaning of “special educational provision” in Part IV of the Act. Whether a form of help needed by the child falls within this description is a question primarily for the LEA and secondarily for the SENT’s expert judgment. If, but only if, the SENT has gone wrong in law will the High Court overset its judgment. Mr. Gordon has not gone so far as to assert - for he had no need to - that the Tribunal’s decision was the only one open to it. So to contend would have placed him in exactly the same difficulties as Mr. Straker has encountered in making the opposite submission. It follows, no doubt, that there will be in cases like this a potentially large area of judgment in which LEAs and SENTs can legitimately come to opposite conclusions on the same or similar facts. Such a situation is less than ideal, but it is an intelligible choice on Parliament’s part where the alternative is a rigid categorisation productive of far more doubt, dispute and litigation than what I would hold to be the method of Parliament’s choice. The Tribunal’s reasoned decision can be seen, in this light, to have proceeded without legal or logical error from findings to conclusions. The Tribunal’s conclusion that physiotherapy, occupational therapy and speech therapy were all measures which related directly to S’s learning difficulties, and therefore amounted to a special educational provision, was a conclusion properly open to it, provided that it is not read as meaning that these therapies were exclusively educational. What mattered was that in the Tribunal’s judgment the therapeutic input listed in Part 3 could not be delivered by the combination of Rectory Paddock and Pitt Cottage consistently with S’s other needs, but could be so delivered by Coney Hill. In brief, S’s education called for day-long and year-round attention to many of his physical needs. . The following sections of the Act are relevant: Section 333 of the Act begins: The material element of the Tribunal’s jurisdiction is this: In G. v. Wakefield City MAC [1998] 96 LGR 69, Laws J. said:

The material element of the Tribunal’s jurisdiction is this:

[24]I draw the following from that judgement and from that final passage in particular. First, there is an area of overlap between education and care. Provided that activities which could only be described as special educational provision are treated as education (and therefore must be provided under section 324(5)(a)) or can only be described as care (in which case they fall under section 324(5)(b)) it is for the judgment of the decision maker whether they amount to education or care or both. Secondly, the court will not interfere with the expert judgment of the Tribunal if it has reached a properly reasoned decision. That judgment includes whether the activity in question is intelligibly to be regarded as educational or non-educational.[25]It was common ground between Mr Grodzinski and Mr Sheldon that the phrase "special educational needs" did not encompass every form of activity or therapy which could achieve some benefit. As it was put in argument, a child is not entitled to "Rolls Royce" provision. But I have found limited assistance from counsel's arguments on how one applies that sensible precept. That is not their fault. The difficulty is caused by the use of, if I may say so, the very slippery word "need" in the Act. What is "needed" depends on the question one asks. Is what is to be sought for D that she achieves the maximum degree of progress that is attainable or a lesser but still substantial one? If the former, then the "need" will require the provision to meet the maximum. If the latter – i.e. the lesser but still substantial degree of progress - then the "need" may require less provision. Suppose that the evidence were that a child with special educational needs had development objectives which required speech and language therapy. The evidence showed that 16 hours per month would achieve little, whereas 25 hours would achieve a great deal. What if 27 hours per month would achieve a better result? Would there be a failure then within the meaning of section 324 if the Local Education Authority provided for 25 as opposed to 27 hours? In my judgment, the way in which this issue must be addressed is to interpret the section on the basis that when it refers to "needs" it is referring to "what is reasonably required". That means that a decision can and must be made on whether what is being proposed for inclusion in a Statement of Educational Needs is reasonably required or goes beyond that. That is pre-eminently a matter for the expert judgment of the Tribunal.[26]Mr Grodzinski seeks to argue that anything which helps D learn what to do is to be regarded as education, and because the evidence from those reports said that she should be looked after on a 24 hour basis, therefore such provision is(a) educational, and(b) must be provided. I consider that that goes too far. It would mean that every time D is assisted to any degree which in fact helps her learn by repetition, that amounts to educational provision, and that the Local Education Authority is required to provide it throughout her waking day. I regard that as unrealistic as a firm rule from which no departure can ever be permitted. Whether a particular case calls for it is a matter for judgment on the facts of that case, and not a matter for a prescriptive rule. It is pre-eminently a matter of fact and degree, and whether it applied in D's case was a matter for expert judgment.[27]In my view, the best judgment of what is needed in a particular case is that of the specialist Tribunal whose members must take into account, but are not bound to accept, the evidence before them. It is for the Tribunal to determine whether what would occur outside school hours is best to be described as education or care. It is also for it to determine whether the achievement of the defined objectives in Part 3 of the Statement of Educational Needs reasonably requires educational provision outside school hours. It is for it also to determine whether a residential school, or a particular school, would have harmful or positive effects on the child in question. It is not bound to accept any particular witness's evidence or any particular report. In this case it had expert evidence on both sides and it was entitled to form its own view. It had concerns about D living away from home, and it also rejected the case put before it that D needed to have educational provision outside school hours. In my judgment, that was a decision which it was entitled to come to having read the reports and heard evidence from the two educational psychologists and others.[28]As to the second ground of Mr Grodzinski, the reasons of the Tribunal, in my judgment, are short but adequate. They plainly addressed the concerns of the parents but they did not accept the views of Ms Wilson. This expert Tribunal was entitled to reach that conclusion. I therefore conclude that this challenge must fail.

Cited in 11 later judgments

and 2 more of the most senior