C and S v Special Education Needs and Disability Tribunal & Anor [2007] EWHC 1812 (Admin)

[2007] EWHC 1812 (Admin)Case No CO/9981/2006
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 26 July 2007
Before
THE HONOURABLE MR JUSTICE WYN WILLIAMS
Between
C and SAppellantsSpecial Education Needs and Disability TribunalRespondents(2) Warwickshire County CouncilRespondent
Mr John Friel (instructed by SEN Legal Ltd Solicitors) for AppellantsMs Fiona Scolding for Second Respondent for The First Respondent did not appear and was not representedHearing Hearing dates: 3 rd May 2007
Judgment
[1]On the 24th February 2006 the Second Respondent issued a Statement of Special Educational Needs (hereinafter referred to as “the Statement”) in respect of a young girl whom I shall refer to as “B” so as to preserve her anonymity. As was their right B’s parents, the Appellants, appealed to the First Respondent pursuant to section 326 Education Act 1996. The appeal under that Act took place on 12th September and 13th October 2006.[2]On 31st October 2006 the First Respondent issued its written decision in respect of the Appellant’s appeal. The First Respondent ordered the Second Respondent to make various amendments to parts 2 and 3 of the statement but it dismissed the Appellant’s appeal against part 4 of the statement.[3]Part 4 of the statement is headed “Placement.” In that section of the statement an education authority specifies the school at which it proposes to place a pupil who has special educational needs. In this case the Second Respondent’s proposal was that B should be placed at a mainstream school referred to throughout this Judgment as “School 1”. It was the contention of B’s parents, however, that she be placed in a residential school which I shall refer to as “School 2”. No doubt it was for that reason that they appealed to the First Respondent. To repeat, however, the First Respondent dismissed the appeal so far as it related to the placement of B.[4]B’s parents have the right to appeal against the decision of the First Respondent to this Court on a point of law. The alleged errors of law in the decision of the First Respondent are set out in grounds of appeal settled by Mr Friel, Counsel for the Appellants. Although the grounds do not say so in terms they relate to the First Respondent’s decision that it should dismiss the Appellants’ appeal in respect of Part 4 of the statement. Before turning to the grounds of appeal, however, it is desirable that I set out the relevant background and essential facts. The facts[5]B was born on 28th February 2000. She is now 7 years old. She suffers from significant hearing difficulties which were first identified when she was 18 months old. At the age of 3, B underwent a cochlear implant. Unfortunately, this did not begin to work until B reached 4.[6]The members of the First Respondent who heard the appeal of B’s parents consider that without her hearing aid and/or implant equipment, B is functionally deaf. No one in the hearing before me suggested that this was an inappropriate conclusion. B’s hearing impairment affects her speech and language skills; it affects her ability to communicate; it affects her understanding of others. It has a significant effect upon her ability to understand what happens in a classroom environment and in lessons. A full description of the difficulties which B faces is contained within her statement.[7]Until May 2006 B attended School 1. This is a school near her home and she was a day pupil at the school. In May 2006, however, B began to attend a non-maintained special school for children with hearing impairment – School 2. That school is located some distance away from B’s home and it was necessary for B to board at that school. As I understand it the Appellants have funded B’s placement at School 2 since May 2006.[8]As I have indicated, the Second Respondent produced a statement which predated B’s move to School 2.[9]At the appeal hearing before the First Respondent the Appellants and the Second Respondent were represented by Counsel. The Appellants adduced evidence from B’s mother and father, her stepfather, Mrs L Shaffer, an independent Educational Psychologist, Mrs Kay Smith, the Head Teacher at School 2 (Junior Department) and Mr D Canning, an independent audiologist and teacher of deaf pupils. The Second Respondent called evidence from Ms E Roche, a specialist speech and language therapist and Miss V Pearce-Jones, the deputy head of the Second Respondent’s Disability Inclusion Service. Both parties made applications to adduce evidence which was served late in the history of proceedings and the First Respondent acceded to those applications.[10]An important part of the case presented on behalf of the Appellant was the evidence of Mr Canning, the independent audiologist. He had first inspected School 1 at a time when B was attending that school. He had concluded that the environment of the classroom in which B was taught was not suitable for a person with a hearing impairment such as suffered by B. During the course of the summer vacation of 2006, however, work was done at the school in order to improve the acoustic environment. Mr Canning was able to visit the school shortly before the first hearing and he gave evidence to the First Respondent about his findings.[11]The Appellant’s principal complaint, in this appeal, relates to the First Respondent’s treatment of the evidence of Mr Canning. The complaint is encapsulated in the first ground of appeal and it is to that which I now turn. First Ground of Appeal[12]This ground of appeal reads as follows: - “The Tribunal erred in law in that it acted unreasonably or failed to give any adequate reasons in relation to the evidence of Mr David Canning about the alteration work that took place in [School 1], and whether that work made the conditions in the school suitable for [B’s] acoustic abilities. His evidence, which was highly complex but very clear, was that when classroom activity commenced noise level to the technology and in the room itself meant that she could not hear appropriately so that she could not learn. The Tribunal either misunderstood the evidence, or failed to take it into account, or gave or no adequate reasons on the issue.”[13]In his revised Skeleton Argument Mr Friel makes it clear he distinguishes between his complaint that the First Respondent acted unreasonably and/or irrationally in relation to Mr Canning’s evidence and his complaint that it failed to give adequate reasons for not acting upon it. It seems to me, however, that it is sensible to consider the adequacy of the First Respondent’s reasons first. In the context of this case, at least, both as a matter of logic and common sense if the First Respondent gave adequate and sensible reasons for reaching the conclusions that it did about Mr Canning’s evidence it will be unlikely, at the very least, that it acted unreasonably or irrationally.[14]What is the extent or scope of the duty upon the First Respondent to give reasons for accepting or rejecting or otherwise dealing with the evidence of Mr Canning? Mr Friel submits that the extent and scope can be ascertained by reference by three decisions beginning with the decision of the Court of Appeal in Flannery & Another v The Halifax Estate Agency [2001] 1WLR 377. In that case the Claimants had instructed the Defendants, a firm of surveyors, to make a valuation of the first floor flat which they subsequently purchased on the strength of the Defendant’s survey. The Claimants later discovered damage to the flat, in particular cracks in its superstructure, and brought a claim in negligence against the Defendants. At trial the Judge heard evidence as to the cause of the cracks from an expert valuer and an expert engineer on both sides. The Judge preferred the evidence of the Defendant’s experts over that of the Claimants’ and dismissed the claim. The Claimants complained on appeal solely that the Judge failed to give reasons for that decision. The Court of Appeal allowed the Claimants’ appeal and its reasoning is encapsulated in the head note to the decision. The Court held that a Judge was under a duty to explain why he had reached his decision; that the scope of what was required to fulfil that duty depended on the subject matter of the case; but where reasons and analysis were advanced on either side a judge had to enter into issues canvassed and explain why he preferred one case over the other; that failure to supply reasons in those circumstances offended against the requirements inherent in the duty of showing fairness to both parties and of producing a decision soundly based on the evidence. In Flannery the Court at first instance was grappling with conflicting expert evidence and in relation to its duty the Court of Appeal relied heavily upon the statement of Bingham LJ (as he then was) in Eckersley v Binnie (1998) 18 Con.L.R 1. The passage in question reads: - “In resolving conflicts of expert evidence, the Judge remains the Judge; he is not obliged to accept evidence simply because it comes from an illustrious source; he can take account of demonstrated partisanship and lack of objectivity. But, save where an expert is guilty of a deliberate attempt to mislead (as happens only very rarely), a coherent reasoned opinion expressed by a suitably qualified expert should be the subject of a coherent reasoned rebuttal unless it can be discounted for other good reasons. The advantages enjoyed as the Trial Judge are great indeed, but they do not absolve the Court of Appeal from weighing, considering and comparing the evidence in the light of his findings, a task made longer but easier by possession of a verbatim transcript usually (as here) denied to the Trial Judge.”[15]Mr Friel next relies upon R (H) v The Ashworth Special Hospital Authority [2003] 1WLR 127. This case came before the Court of Appeal on an appeal in judicial review proceedings. The judicial proceedings related to decisions taken by a Mental Health Review Tribunal.[16]The statutory regime governing Mental Health Review Tribunals require that a Tribunal shall give reasons for its decisions. In paragraph 71 to 82 of his judgment Dyson LJ deals with the complaint in that case that the Tribunal had failed to give adequate reasons. He reviewed a number of authorities including Eckersley and Flannery and a case which followed Flannery, namely English v Emery Reimbold & Strict Limited (Practice Note) [2002] 1 WLR 2409.He also referred to the fact that a number of authorities existed which made the point that in determining the adequacy of reasons account should be taken of the fact that the decision in question was given to “an informed audience”.[17]Dyson LJ followed the line of authority beginning with Eckersley. He also specifically rejected the proposition that the “informed audience” point could properly be relied on to justify as adequate a standard of reasoning in Tribunals which would not be regarded as adequate in judgments by a Judge. It is to be noted, however, that he also concluded that it did not follow that the Tribunal was obliged to produce a decision which was as long as judgments by a Judge often tend to be. Dyson LJ was of the view that a brief judgment was no less likely to be adequately reasoned than a lengthy one.[18]Finally, Mr Friel drew my attention to a passage in the judgment of Beatson J in R (L) v The London Borough of Waltham Forest [2004] ELR 161. In paragraphs 13 and 14 of his judgment Beatson J referred to a number of first instance decisions of Judges of the Administrative Court and derived from them the following propositions. Firstly, reasons must deal with the substantial points that have been raised so that the parties can understand why that such a decision has been reached. The aggrieved party should be able to identify the basis of the decision. Secondly, a specialist tribunal, such as the First Respondent, can use its expertise in deciding issues but if it rejects expert evidence before it, it should state so specifically and in certain circumstances it may be required to say why it rejects such evidence. Thirdly and linked to the second point, where a specialist tribunal uses its expertise to decide an issue, it should give the parties an opportunity to comment on its thinking and to challenge it. Lastly mere recitation of evidence is no substitute for giving reasons.[19]In her Skeleton Argument Ms Scolding put at the forefront of her submissions upon the extent and scope of the duty to give reasons the decision of the Court of Appeal in W v The Leeds City Council and Special Educational Needs and Disability Tribunal [2005] ELR 617. During the course of his judgment Wall LJ referred to the fact that a reasons challenge had been made to the Tribunal’s decision and continued: - “I do not think it necessary for this Court to add to the already substantial jurisprudence on this topic. Speaking for myself, I have always regarded the judgment of Sir Thomas Bingham MR (as he then was) in this Court in Meek v City of Birmingham District Council [1987] IRLR 250 (even though it substantially antedates the incorporation into English law of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950) as the definitive exposition of the attitude superior Courts should adopt to reasons given by Tribunals. Whilst, of course, some aspects of the reasoning processes of different specialist tribunals are unique to the particular speciality which is engaged, I see no reason, in this context, to distinguish between Employment Tribunals and what are now Special Educational Needs and Disability Tribunals. Sir Thomas Bingham MR said:
“It has on a number of occasions been made plain that the decision of an industrial tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of a tribunal’s basic factual conclusions and a statement of the reasons which has led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or loss. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this Court to see whether any question of law arises.”
The Master of the Rolls added:
“Nothing that I have said is, as I believe, in any way inconsistent with previous authority on this subject. In UCATT v Brain [1981] IRLR 225 Donaldson LJ (as he then was) said at page 227:- “Industrial Tribunals’ reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law ………… their purpose remains what it has always been, which is to tell the party in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which the reasons are given.” “It has on a number of occasions been made plain that the decision of an industrial tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of a tribunal’s basic factual conclusions and a statement of the reasons which has led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or loss. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this Court to see whether any question of law arises.”
[20]There was some debate between Counsel about whether a tension existed between the authorities cited by Mr. Friel and W. I do not consider such tension exists. It is inevitable that individual judges will express themselves in slightly different language when explaining the duty to give reasons and the scope of that duty.[21]It follows that my task in this case is to apply the principles set out in the cases cited above to the First Respondent’s consideration of and conclusions upon the evidence of Mr Canning. That task, however, is made more difficult that normal in this case since it is far from clear what evidence was given by Mr Canning to the First Respondent. No notes of evidence taken have been disclosed by the First Respondent. The evidence given by Mr Canning about his examination of the relevant classroom at School 1 in September 2006 was given orally.[22]In advance of the appeal to this Court the parties served Witness Statements which, at least in part, sought to elucidate what it was that Mr Canning said. Unfortunately, as is apparent from the Witness Statements no agreement exists as to what Mr Canning said, to what extent he was challenged and to what extent, if at all, contradictory evidence was given by witnesses called on behalf of the Second Respondent.[23]In Oxfordshire County Council v GB & Others [2002] ELR 8 Sedley LJ, giving the substantive judgment of the Court of Appeal, touched upon the problem which I have identified in the preceding paragraph. In that case the Special Educational Needs Tribunal had made a calculation of costs which was germane to its decision. However, it gave no reasons for the calculation in its written judgment. Sedley LJ expressed the view that it would not be generally appropriate for a statutory tribunal which is required to give reasoned decisions to respond to an appeal by purporting to amplify its reasons. He went on to say:
“If reference needs to be made to the evidence for the purposes of the statutory appeal, the ordinary resort is to as much of the documentation and notes of evidence as will help to determine what material basis there was for the impugned part of the decision ………….”
He then said this: - “Fresh evidence, even on judicial review, has a restricted ambit …… which can be no larger on a statutory appeal….. the practice ……..of the parties submitting evidence at will to the Court hearing an appeal against a SENT decision is in our present view unacceptable. The one class of fresh information which the special nature of such appeals may call for is up to date evidence about the child’s schooling and needs, but purely – as the present case will illustrate – in order to enable relief to take a suitable form. For these reasons we will pay no attention to the evidence that was submitted to the Administrative Court by all three parties. ……”[24]Sedley LJ does not answer expressly the difficult issue of how this Court determines what evidence was given before a specialist Tribunal (when it is necessary to do so in order to ascertain whether there has been an error of law by the Tribunal) when, literally, no contemporaneous record of what evidence was given is put before the Court. Fortunately, however, it is not necessary for me to answer that thorny question. I say that for this reason. The Appellants’ first ground of appeal focuses, specifically, upon the evidence which Mr Canning gave about the suitability of the classroom in which it was proposed to teach B and whether or not the work which had been carried out in the summer vacation to that room made it suitable for her needs. It must be the case, obviously, that Mr Canning’s conclusion was that it was not suitable since, otherwise, there would be no purpose to this appeal. In the context of this case it is sufficient that this general assessment is borne in mind since, as will become apparent the First Respondent had to consider many factors in reaching its conclusion about the suitability of St. Gregory’s as a placement.[25]The question for my resolution is whether or not the First Respondent gave adequate reasons for rejecting the evidence of Mr. Canning, if it did, and/or gave adequate reasons for reaching the conclusion that School 1 was suitable for B’s needs even if Mr Canning was correct in his criticisms of the suitability of the classroom in which B was to be taught.[26]I turn to the decision of the First Respondent. It goes without saying that the decision is to be read as a whole and it would be otiose to quote, verbatim, large extracts of the decision. It seems to me that the following passages are those which are crucial. On page 13 of the decision under the heading “Part 3” the following conclusions are expressed by the First Respondent:- “(v). For reasons given (see J below), we conclude that B’s special educational needs can be met in a main stream school…. (vi). The evidence we heard in respect of the acoustic environment at [School 1] was conflicting. On the balance of the evidence of acoustic measurement made by Mr Canning and the LEA it seems to us that it was unlikely that the room even now meets in full the guidance in BB93. It seems that some problems remaining with(i) reverberation time at low frequencies;(ii) background noise; and(iii) signal to noise ratio, at the time. We accept that BB93 was intended only for guidance when only minor works are undertaken in a school, such as the refurbishment at St. School 1. Under these circumstances we do not accept that there is any requirement (legal or other) for [B’s] classroom to comply with the guidance of BB93, although we acknowledge that appropriate and necessary work is being undertaken. We cannot conclude that an existing classroom that does not meet the guidance in BB93 is per se unsuitable for the education of a pupil with hearing difficulties. It musts therefore be for us to consider the issue of acoustic environment as a whole and not merely whether or not a room is BB93 compliant. We accept that the room is not unsuitable to meet [B’s] needs given that it is acoustically improved since she was last there and when she was last there she made progress………… (vii) We do not accept that [B] requires a specialist school ……. Accordingly, we do not accept that she need be taught in small classes at all times.”[27]Under paragraph H (page 15) the First Respondent concluded: - “We recognise that the acoustic environment at [School 2] Mary Hare is better than that at [School]. That does not however make [School 1] unsuitable. [B] made progress at [School 1] even before the proposed installation of the Sound Field System. We accept that the acoustic environment at [School 1] is appropriate to meet [B’s] needs. Then at J it said: - “Given what we heard there must in our view be real doubt as to whether [School 1] was fully meeting [B’s] special educational needs during her time there. Nevertheless the photographs incorporated into the bundle showed, she appeared happy and well integrated into her mainstream class. We also note the changes to the provision for [B] that have been and will be put in place by the LEA, in respect of acoustic environment, TA support, specialist teacher and speech and language therapist provision. We are satisfied that the package of support that we are ordering for [B] makes it likely that [B] will benefit from her implant. We are therefore of the view that [B’s] special educational needs can now be met at [School 1].”[28]In the remaining paragraphs of the decision (K to O) the First Respondent records and evaluates the judgment made by the Appellants about what best suits B’s needs, the costs implication of meeting those needs and the advantages and disadvantages of B boarding at School 2 compared to being a day pupil at School 1.[29]In my judgment it is clear that the First Respondent did not regard the acoustic environment of the classroom in which B was to be taught as an overriding factor. It regarded it as a factor to be taken into account along with many other important and competing factors. As I read the decision, the First Respondent did not reject Mr Canning’s evidence about the unsuitability, in absolute terms, of the classroom in question. Rather it weighed Mr Canning’s criticisms of the classroom (in terms of its acoustics) against many other factors. It then reached the conclusion that St. School 1 was a suitable placement for B.[30]I acknowledge that the First Defendant’s decision does not contain detail of Mr Canning’s evidence. It does not explicitly record how much of it was accepted and how much, if any, was rejected. Nonetheless, in my judgment, it is clear from the decision that his evidence was considered properly in its context and, to repeat, weighed against many other factors in deciding whether or not a placement at School 1 was suitable.[31]It is important to remember that Mr Canning’s evidence was not evidence to be considered in a vacuum and accepted or rejected without reference to a host of other factors which were relevant to the issue of whether or not a placement at School 1 was suitable.[32]In my judgment, in this case the Appellants were properly informed via the decision letter of the First Respondent why their appeal was successful in part and unsuccessful on a major issue. The reasons provided identified all the factors which influenced the First Respondent. I do not accept that there is such a deficiency of reasons so as to render the decision of the First Defendant unlawful. It seems to me that the submissions made by Ms. Scolding in paragraphs 40 to the first part of paragraph 46 of her Skeleton Argument correctly analyse the position in this case. I have, in my own way, sought to summarise what she says in the preceding paragraphs of this judgment.[33]I should stress that in reaching the conclusions set out above I do not proceed on the basis that the obligation of the First Respondent was to provide a summary of its reasons. Although Regulation 36(2) of the Special Educational Needs Tribunal Regulations 2001 imposes an obligation upon a tribunal to provide a summary of its reasons, I have approached this case very much on the basis of the principles set out in the leading authorities as set out above.[34]Having reached the conclusion that there was no unlawful deficiency of reasoning, to repeat, in the context of this particular case, it seems to me to be an inevitable conclusion that the First Respondent did not act unreasonably or irrationally in its assessment of Mr Canning’s evidence. It obviously took it into account. It weighed the evidence in the balance against a host of other factors. The weight to be attached to the evidence was for the First Respondent to determine.[35]I have reached the conclusion that the Appellants have failed to establish that the First Respondent acted unlawfully as alleged in Ground 1 of the Grounds of Appeal. Grounds 2 and 3[36]Mr Friel’s Revised Skeleton Argument did not address these grounds and they were not pursued orally. I have considered them, nonetheless, but, in my judgment, they do not form the basis for a successful appeal in this case. Conclusion[37]It follows from the above that this appeal is dismissed. I make it clear that an Order should be made which prevent the publication of any information which may lead to the identification of B. For that reason the title to these proceedings should be made such that the Appellants should henceforth not be identified by name.