Bedfordshire County Council v Haslam & Ors [2008] EWHC 1070 (Admin)

Case No CO/1707/2008

[2008] EWHC 1070 (Admin)

IN THE HIGH COURT OF JUSTICE

ADMINISTRATIVE COURT

Date Date: 15 MAY 2008

Before

HIS HONOUR JUDGE MACKIE QC (SITTING AS A JUDGE OF THE HIGH COURT)

B E T W E E N :

Between

BEDFORDSHIRE COUNTY COUNCILAppellant

MR AND MRS HASLAMRespondent

CHAIR OF THE SPECIAL EDUCATIONAL NEEDS ANDRespondent

DISABLITY TRIBUNALRespondent

BHInterested Party

IN THE MATTER OF A STATUTORY APPEAL

OF A DECISION OF SENDIST

AND IN THE MATTER OF THE EDUCATION OF BEN HASLAM

(Transcript of the Handed Down Judgment of

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Mr J R McManus QC and Mr P J Moulder (instructed by Legal Services Department, Bedfordshire County Council) appeared for Appellant.

Mr John McKendrick (instructed by SEN Legal) appeared for First Respondent.

Mr John Friel (instructed by Anthony Collins) appeared for Interested Party.

Judgment

[1]This is an appeal under Section 11 of the Tribunals and Inquiries Act 1992 against a decision of the Special Educational Needs and Disability Tribunal (“the Tribunal”) dated 14 January 2008. The Appellants, Bedfordshire County Council (“the Council” and, sometimes, “LEA”) claim that the Tribunal erred in law in its approach to ordering amendments to the Statement of Special Educational Needs and replacing the special school specified with another proposed by the parents Mr and Mrs Haslam. The first Respondents Mr and Mrs Haslam contend that the Tribunal was correct and that its decision should be upheld, (criticisms of some findings made in the Respondent’s Notice not being proceeded with). The Second Respondent, the Chair of the Tribunal has, in accordance with usual practice, not participated in the appeal. In addition to hearing from Mr McManus QC and Mr Moulder for the Appellants and Mr McKendrick for the parents I also received submissions from Mr Friel on behalf of Ben, the child, who was joined to the action as an interested party by the Order of Pitchford J dated 11th April.

Legal Background

[2]Before turning to the facts and issues I first summarise the legal structure within which they arise in this important but specialised jurisdiction.

[3]This case concerns Sections 324-326 of the Education Act 1996 as amended. Section 324 was helpfully summarised by Judge LJ in W -v- Leeds CC & SENDIST

(2005) ELR 617

at 627 as follows. “Section 324 of the 1996 Act provides for the making and maintenance of a statement of a child’s special educational needs where:

‘It is necessary for the local education authority to determine the special educational provision which any learning difficulty he may have calls for’

. In short, the statement is created to enable a proper assessment of the educational provision required for the particular child with special educational needs. Special educational needs arise where the child ‘has a learning difficulty which calls for special educational provision to be made …’ and for the purposes of the 1996 Act the child has a learning difficulty 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 local educational authorities’

. Special educational provision of itself means:

‘(a) … educational provision which is additional to, or otherwise different from, the educational provision made generally for children of his age “in such schools”.’

The form of the statement is prescribed, but by s324(3) it is required to:

‘(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’

. The Education (Special Educational Needs) England (Consolidation) Regulations 2001 prescribe the form and contents of the statement. Thus part 2 of the statement is headed ‘Special Educational Needs’. These are to be set out ‘in terms of the child’s learning difficulties which call for special educational provision’. Part 3 is entitled ‘Special Educational Provision’. In this part of the statement the objectives which the special educational provision should aim to meet are specified. The educational provision to meet the needs in part 2 and the objectives in part 3 are then, in their turn, to be specified. Part 4 is concerned with placement in a school, and part 5 specifies the non-educational needs of a child for which provision is thought appropriate if the child is to benefit properly from the arrangements for special educational provision”. ‘It is necessary for the local education authority to determine the special educational provision which any learning difficulty he may have calls for’. Special educational provision of itself means: The form of the statement is prescribed, but by s324(3) it is required to:

[4]Section 324(5)(a) of the Education Act 1996, as amended provides:- “Where a local education authority maintains 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”. It follows from that, the Council submits, that it is obliged to arrange the special educational provisions specified in the statement but has a discretion to arrange the non educational provision. This is the source for the detailed arguments and discussion in the area of the law of the differences between “educational” and non educational. 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”.

[5]It is for the LEA to determine subject to scrutiny by the Tribunal whether any particular provision is educational or non educational: London Borough of Bromley -v- Special Educational Needs Tribunal

[1993] 3 All ER 587

, CA. In that case, Sedley, LJ said at page 596: “Whether a form of help falls within this description [special educational needs] is a question primarily for the LEA and secondarily for the SENT’s expert judgment”.

[6]Section 326 of the Education Act 1996, as amended provides, as far as relevant: “(1) The parent of a child for whom a local education authority maintain a statement under Section 324 may appeal to the Tribunal –(a) when the statement is first made

(b) if an amendment is made to the statement, or

(c) if, after conducting an assessment under Section 323, the local authority determine not to amend the statement (1A) An appeal under this section may be against any of the following – (a) the description in the statement of the local education authority’s assessment of the special educational needs, (b) the special educational provision specified in the statement (including the name of the school specified), (c) if no school is specified 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 provision and make such other consequential amendments to the statement as the Tribunal thinks fit, or (c) order the authority to cease to maintain the statement”. (a) when the statement is first made (b) if an amendment is made to the statement, or (c) if, after conducting an assessment under Section 323, the local authority determine not to amend the statement (a) the description in the statement of the local education authority’s assessment of the special educational needs, (b) the special educational provision specified in the statement (including the name of the school specified), (c) if no school is specified in the statement, that fact. (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 provision and make such other consequential amendments to the statement as the Tribunal thinks fit, or (c) order the authority to cease to maintain the statement”.

[7]The Council submits and the other parties do not dispute that in this case the jurisdiction of the Tribunal was limited to determination of the assessment of the child’s special educational needs and the provision to meet those needs, including the name of the school. The power of the Tribunal is simply to amend the description of the assessment and make consequential amendments arising from it. The Council submits that the power of consequential amendment has to be made within the ambit of the determination of the special education provision permitted within the appeal under Section 326(1A). The Council also submits that while the Tribunal can inform itself about the non educational provision that is proposed it is no part of its function to make orders in relation to it. See Leeds City Council, paragraphs 42, 43, 45 and 49-51. The parents submit that provision should not be made in Part 3 for needs which are not education or which relate to background and comment. If a matter appears in Part 3 therefore it becomes ‘educational’. Further they submit that the Tribunal can lawfully refuse to name a school in Part 4, even though it has concluded that it meets the child’s special educational needs if that provision is not going to be practicable. Subject to that the Council’s submissions about the legal framework are not seriously disputed. There are further differences between the parties about the law but this judgment will be more coherent if I address those in the light of the facts.

The facts and the decision of the Tribunal

[8]The background can be taken from the first two paragraphs of the Decision:- “1. Ben is severely autistic and also has a diagnosis of ADHD. He is non-verbal. He has severe learning difficulties, functioning at level P3-P5 in most areas of his curriculum. Ben is extremely difficult to manage; he exhibits challenging behaviour that can be erratic and unpredictable. He has no concept of danger and has extremely complex sensory issues. He requires 1:1support for all aspects of personal care and daily living skills. He is doubly incontinent, and is prone to diarrhoea. His development of fine motor tasks is significantly below that of his chronological age. He has considerable sleep disturbance, waking between 2 am and 4 am and has a very limited diet. He is difficult to manage at home, and has been aggressive to all family members. For example, he has broken the TV on four occasions and his brothers are frightened of him. Ben’s parents had produced a short DVD showing what Ben can be like at home which had shown examples of his challenging and sometimes threatening behaviour. His parents are naturally exhausted, having looked after him full time, although he does attend for some respite at the Foxgloves. 2. Ben has attended the Rainbow School, a LEA maintained day special school. However, that school has now closed and the LEA issued an amended statement of special educational needs on 9 February 2007. Mr and Mrs Haslam appealed against Parts 2, 3 and 4 of this statement. Their proposed school at the hearing was the Shires School, an independent residential special school for autistic children. Enabling consent had been obtained for Ben to attend the school and a place is available. The LEA had a number of reservations regarding the Shires School. However, Mr Moulder confirmed that despite these reservations, the LEA did not consider that the Shires School would be inappropriate for Ben. It argued that it would be an unreasonable use of public expenditure when appropriate provision could be made for Ben by him attending the LEA’s proposed school, Sunnyside School, at considerably less expense. This is a LEA maintained day special school catering for generic special educational needs that caters for autistic children. It is recognised as a centre for teaching children with autism and related communication difficulties. The Local Authority’s Joint Allocation Panel recognised the potential need for a long-term 52 week care placement for Ben from December 2006. The Local Authority therefore proposed that Ben should reside at Maythorn children’s home which is on the same site as Sunnyside School. Both Mr Friel and Mr Moulder presented skeleton arguments and it was agreed that the placement at Maythorn would be provided under Section 20 Children Act 1989 whereby parental responsibility remains with the parents and the arrangement requires parents consent”.

[9]In Paragraph 3 the Tribunal records what the respective representatives have been able to agree before identifying a disagreement by the LEA with the parents’ proposals that there be highly structured programmes to develop self-help skills throughout Ben’s waking day. The LEA’s case statement also stated, as the Tribunal records that since May 2007 the parents “have refused permission for any professionals permission by the LEA to have access to Ben and that therefore the LEA had no updated evidence …”.

[10]At Paragraph 4 the Tribunal identifies its task “the central issue for the Tribunal was whether Ben required provision of educational programmes beyond the school day, by way of a waking day curriculum. The LEA recognised in its case statement that Ben needs a consistent approach across school and residential care settings”.

[11]The Decision goes on to review the detailed written evidence before it and the testimony of the four witnesses giving evidence at the hearing. As is emphasised on behalf of the parents the Decision refers to the need for therapies to be planned on a “joined up” basis. There are references to the absence of a clear divide between education and care matters at the Shires School proposed by the parents and at Paragraph 22 the reason for the position adopted by the Council becomes clearer with a comparison of the cost of a placement at the Shires School of approximately £250,000 a year with something over £100,000 should Ben attend Sunnyside and live at the Maythorn children’s home. The Tribunal then reaches its conclusions. In A and B amendments are made to Part 2 and Part 3 of the statement which are either agreed are not central to this appeal. At C the Tribunal concludes that “the day provision that was being offered by the LEA would be appropriate and would meet Ben’s special educational needs during that time”. That paragraph records that the “necessary consistency of approach that is so important for autistic children” has not been implemented and that Ben needs such an approach “across all settings”. Reference is made to the fact that it has been extremely difficult for the parents to achieve any form of consistency at home as they have not had the necessary help and support from professionals. Paragraph D deals with what the Tribunal calls the “central issue as to whether Ben requires education beyond the school day by way of a waking day curriculum, we had regard to the case of London Borough of Bromley -v- Sent”. The Decision goes on “the issue is whether in order to address these difficulties, Ben requires the delivery of educational programmes beyond the school day or whether he requires a measure of structure and consistency of approach throughout the day and across all settings as contained in the decision of R (Tottmann) -v- Hertfordshire County Council 2003”. At E the Tribunal have regard to Mr Friel’s submissions that educational programmes are needed beyond the school day but add “we do not consider it necessary in Ben’s case. We agreed with her(a reference to the psychologist) argument that it was necessary that there should be a consistent approach across all of his environments. However that could be achieved without care staff and others becoming teachers of educational programmes”. The Tribunal added “we did not conclude that the LEA’s proposals amounted to provision of educational programmes beyond the school day. What was contemplated was a measure of consistency and structure that could be achieved by school and care staff engaging in joint planning and liasion between the school setting and the care setting …”. In F the Tribunal is impressed by the “provision” that was offered by the local authority recognising that Ben would create additional difficulties at home given his increasing size and aggressive behaviour. The Tribunal go on “as we had concluded that Sunnyside School would be appropriate and that a consistent approach be achieved by his attendance at the Maythorn unit, it would be logical for the Tribunal to find that it would be an unreasonable use of public expenditure for Ben to attend the Shires School.” So far therefore the Tribunal is inclining to uphold the Council’s decision.

[12]At G the Tribunal points out that Ben’s proposed placement at Maythorn would be under Section 20 of the Children Act 1989 by which parental responsibility remains and an arrangement requires the parents’ consent. Ben’s parents did not want him to go to Maythorn. There was no authority to enable the Tribunal to name the Maythorn unit as part of the overall provision as it was a residential children’s home not a school. “Therefore, although we considered the local authority’s overall provision to be appropriate, we concluded that it would be outside the Tribunal’s jurisdiction to name this provision”. Sunnyside provision would not be successful without Ben being placed within the Maythorn unit to achieve the essential consistency of approach. This led in H to a decision “as the Tribunal is unable to name the LEA’s overall proposed provision, we concluded that in order for the provision to achieve the necessary consistency of approach, he should attend the only other proposed school, namely the Shires School”. Amongst the orders the Tribunal made was to require the LEA to amend Part 3 of the statement by substituting a variety of provisions including under “consistency” “in order to achieve a consistent and structured approach to the required provision across all environments, there will need to be daily contact and liasion between school and staff within the care setting”. Finally Part 4 was to be amended by substituting “attendance at a special school that caters for the need of children with autism – The Shires School”.

[13]I have of course considered the submissions of the parties in the context of the Decision as a whole and not the compressed summary set out above.

Grounds of appeal

[14]The Council relies on 5 separate grounds. In essence it says that the Tribunal erred in law in deciding that as a precondition to naming Sunnyside it had to be able either to name Maythorn, the proposed non educational provision, or order attendance of Ben at Maythorn to which the parents’ objection (to the LEA’s proposed non-educational provision) would be a bar. The Council says that the Tribunal, having determined that Sunnyside was suitable and appropriate special education, should have named it in Part 4. The Tribunal is concerned with special educational provision and while it obtains information about non educational provision it is not concerned with making orders in relation to it. The Tribunal should not have been concerned with the powers of the Council to order non educational provision. The lack of acceptance by the parents of an exercise by the Council of a discretion about non educational provision could not in itself render unsuitable what is otherwise unsuitable educational provision. The parents are always free to make suitable alternative arrangements under Section 324(5)(a) of the Education Act. Parents do not have a general right of veto as regards suitable special educational provision – see S -v- Sent

[1995] 1 WLR 1627

at 1637 E – 1638 H. The Tribunal did not find that any special education provision was required outside the school day or at a place other than the school. The Tribunal’s references to a consistent and structured approach across all environments are not a finding that a child has a special educational need for a consistent approach or that such an approach is itself a special educational provision. That is clear from a fair reading of the decision. If the Tribunal had intended otherwise there would have been an amendment to Part 2 of the statement but there was not. Such an approach would have contradicted paragraph E of the decision. If the Tribunal had found that the need for a consistency was part of the child’s special educational needs they would have been in error.

[15]Ground 2 is related to Ground 1 claiming that the Tribunal misdirected itself when holding that in order to name Sunnyside School in Part 4 it also needed to be able to name Maythorn. Having found that all appropriate special educational provision was capable of being made at Sunnyside, the Maythorn aspect was non-educational provision within the discretion of the council.

[16]Ground 3 is a claim that the Tribunal misdirected itself in law by appearing to decide that by specifying a consistent approach there was a need for the Tribunal to be able to name or specify delivery at Maythorn. This “consistent approach” is not educational provision as is clear, Mr McManus QC submits, from R (Tottmann) -v- Hertfordshire County Council

[2004] EWCA 927

. In deciding its specification within Part 3 of the statement, the Tribunal effectively and mistakenly treated “consistent approach” as having the status of special educational provision despite explicit findings otherwise at Paragraph E.

[17]Grounds 4 concerns Section 20(7) of the Children Act 1989 and arises only if the Council fails on its first 3 grounds so before addressing it I will summarise the position of the other two parties on the first three grounds and reach a decision about them. Ground 5 forms part of the argument on Grounds 1 and 2.

Position of the First Respondents

[18]Mr McKendrick submits that the key issue is whether the requirement for Ben to be provided with a “consistent approach” is special educational provision and he says that it plainly is. Once that becomes clear the first three grounds fall away. Sunnyside alone could not provide a “consistent approach” and meet all Ben’s educational needs so some other school had to be named in Part 4. Ground 2 fails because the Tribunal was considering a consistent approach as part of special educational needs and was under a mandatory duty to name a school that met them. Ground 3 fails because, Mr McKendrick submits, the Tribunal’s decision as regards “consistent approach” in its Order followed naturally from the Council’s own case as advanced in its Supplementary Case Statement, the Decision and because of the clear legal authority that this is pre-eminently an issue for the Tribunal.

[19]The parents submit that Tottmann does not assist the Council because the Court of Appeal approved of a characterisation by the trial judge of consistency in approach being special educational needs.

[20]The parents submit that even if consistency is a non-educational provision and within the discretion of the appellant to arrange, the Tribunal can still take the view the provision must be practicable. Mr McKendrick submits that the Tribunal is entitled to refuse to name a school in Part 4 even if it has concluded that it meets the child’s special educational needs. He relies upon the facts in Leeds but that case, as I read it, shows only that the Tribunal has a legitimate interest in knowing what the LEA proposes to do for non educational provision. Indeed that case emphasises that while a holistic approach should be adopted by the various bodies with different responsibilities for the child the Tribunal had no jurisdiction over the provision by social services departments (see paragraphs 42 and 43).

[21]Mr McKendrick also submits that the Tribunal was entitled to consider whether it was appropriate to name a school in Part 4 when this would involve the parents having to agree to voluntary care for their child under Section 20 of the 1989 Act. It was he submits for the Tribunal to consider in such circumstances whether the “veto” of the family was determinative. He cites CB -v- London Borough of Merton and SENT

[2002] ELR 452

at paragraphs 28 and 29. That case dealt with the question of whether placement of a child at a boarding school was an unjustified interference with his parents Article 8 rights and is no support for this broad proposition.

Position of the child

[22]Mr Friel submits that although the Decision is badly worded it is correct in law. He says that the Tribunal correctly recorded an agreement that there should be delivery of educational programmes to include the holidays and that this was accepted by the local authority before the Tribunal. The Tribunal did not err in regarding consistency of approach as an educational provision because the LEA actually agreed to provide this or accepted the evidence and acknowledged such an agreement in its Supplementary Case Statement. In truth disagreement between the parties was limited. The case before the Tribunal had not been helped by the withdrawal by the Council of a 52 week educational placement. However in its Supplementary Case Statement the Council accepted the expert evidence which required provision to be delivered both at school and outside. There is no confusion by the Tribunal and no error of law. Mr Friel goes on to support those propositions with a detailed analysis of case statements, reports and evidence produced at the hearing before the Tribunal. He also submits that the Tribunal can order, as it was plainly aware, a provision that can be delivered in practice as opposed to making a theoretical determination.

[23]Mr Friel relied on the speech of Baroness Hale in R on the application of M -v- London Borough of Hammersmith and Fulham

2008 UKHL 14

paragraph 42 where, in the context of Section 20 of the 1989 Act she states “the label which they choose to put upon what they have done cannot be the end of the matter …”. He submits that the LEA had in this case planned a full time educational provision and that in substance is what the Tribunal ordered. But as I see it the Tribunal decided, as a fact, that Ben did not need educational as opposed to other provision at Maythorn. The attractive way in which Mr Friel presented his argument did not disguise the fact that his approach is a convoluted one. Except where it is being alleged that the Tribunal acted irrationally or has expressed itself ambiguously the court looks at the Decision to determine whether or not it is lawful. It is not helpful to extrapolate from all the material before the Tribunal some concept of what the Tribunal really meant or should have said. Much of that material may have been carefully evaluated without the Tribunal articulating its reasons as is so often the case when a Decision needs to be kept to a reasonable length. Further the Tribunal has a duty to give only summary reasons- see S which I referred to in Paragraph 14 above.

[24]He also submits that the Tribunal can only order provision that is practicable and not theoretical and relies upon the decision of Sullivan J in S -v- The City and Council Swansea

[2000] ELR 315

at 323 A-B. But as Mr McManus points out that case is authority only for the proposition that if the child has an educational need and a particular school is identified it must be able to meet that need.

[25]Mr Friel’s skeleton argument ran to 37 pages and this, perhaps understandably, led to a formidable written reply from Mr McManus QC and Mr Moulder running to 40 pages. Much of this relates to textual analysis of the material before the Tribunal. I do not propose to deal with the detailed submissions about the underlying material. Unless an appeal is claiming that a Tribunal adopted an approach that was irrational given the material before it, it should not be necessary for argument on a Section 11 appeal to stray far outside the Decision itself.

Decision of the court on Grounds 1, 2 and 3

[26]The arguments of all three parties came together at the point where they all agreed that the decision should be read as a whole with common-sense rather than as a statute. But they understandably all drew different conclusions from that and pointed to particular sentences and paragraphs as being particularly significant or the reverse. I do not propose to summarise those competing textual submissions. The cases show and common sense dictates that the Decision must be read as whole and particular passages viewed in context.

[27]Paragraph E of the Decision concludes that Ben does not need educational programmes beyond the school day, a consistent approach can be achieved without care staff becoming teachers of educational programmes. The LEA’s proposals did not amount to provision of educational programmes beyond the school day. In effect consistency can be achieved by school and care staff engaging in joint planning and liaison between the school setting and the care setting. On a natural reading of paragraph E a consistent approach would be between educational and non educational matters, the educational being provided by the school and the non educational by Maythorn. This leads in G to the conclusion that in order for special educational provision to be provided at Sunnyside successfully it was essential that there be consistency of approach with the non educational needs to be supplied by Maythorn.

[28]In reaching its view and drawing relevant distinctions the Tribunal was guided by case law and in particular by the decisions of the Court of Appeal in Bromley and Tottmann with which, as a specialist tribunal, it will be particularly familiar. The Tribunal answered the central question which it correctly states in Paragraph 4 and reminds itself of in D. Mr McKendrick’s succinct but able submissions about overlap between the categories of educational and non-educational provision in the case of a child who faces challenges such as Ben does do not, as I see it, apply in a case like this where the Tribunal has identified the distinction clearly and then gone on to make it.

[29]In Bromley Sedley LJ stated, at 594 that particular respect should be paid to a Tribunal’s conclusion with the court intervening only where an error of law or jurisdiction or due process can be shown thus the question whether therapies which a child needs are directly related to his learning difficulties are matters of judgement first for the LEA and then for the SENT. SENT is to exercise a case by case judgment which no prescriptive legislation could ever anticipate “whether a form of help needed by the child falls within this description” (ie “special educational provision”) “is a question primarily for the LEA and secondarily for the SENT’s expert judgment”. The Lord Justice points out that there is between “the unequivocally educational and the unequivocally non-educational a shared territory of provision which can be intelligibly allocated to either”.

[30]The Tribunal, having referred to Bromley would have been aware of the concept of shared territory when drawing the boundary in this case and having reached that determination its decision should be respected for the reasons given. So again it is clear that the Tribunal saw Ben’s future as involving education at Sunnyside provided with non-educational support at Maythorn.

[31]In Tottmann the Tribunal had also rejected the view that the child had a need for programmes of special education to be provided throughout the waking day, opting for consistency during that time not programmes of special education. As Clarke LJ, as he then was, pointed out the emphasis in that case was on consistency of approach but that did not mean that the LEA must provide programmes other than at school. Consistency of approach is not referred to in Tottmann as exclusively educational or non educational but as relating to co-ordination between the two. The fact that the Tribunal in one case saw consistency of approach as being other than part of special educational needs does not mean the Tribunal in another case cannot take a different view informed by particular facts and the application of its specialist expertise. I am not sure that it has to be classified as either.

[32]Another feature of Tottmann was that the need for consistency was one of the matters referred to in Part 3 of the statement but the court still affirmed the judge’s decision that this was a non-educational provision. A reference to “consistent approach” can be made in Part 3 (under the heading “Special Educational Provision”) without it becoming a special educational need. If that were not the case the Tribunal could not make common-sense and in some way obvious points about the need for provisions to be provided consistently and in co-ordination with each other. As in other areas of life consistency of provision is desirable and obvious. There should not usually be a need to place “consistency” in to either educational or non-educational pigeon holes when this noun refers to co-ordination between the two. Similarly there is no warrant for classifying consistency as “education” so as to bring into the educational pigeon hole non educational features. It is in any event clear from the Decision, notably in paragraph D, that the Tribunal did not see consistency as an educational need.

[33]The need to evaluate the decision as a whole means that little may turn on occasional references to features in one part of the Statement which on a strict analysis should perhaps not be there. One gets nowhere for example weighing up the presence of “consistency” in Part 3 (just as it was in Tottmann) against its absence from details of Special Educational Needs found in Part 2.

[34]The Council submitted that if the parents were right in their submissions they would always have a veto if the educational provision was dependant on the provision of non educational matters; simply because the Tribunal cannot order that non educational provision. Mr McManus submits that this would cut down the ability of the Tribunal to order educational provision merely because it lacked the power to order non educational provision. The distinction between educational and non educational provision would collapse because if the parents argued for 24 hour a day education and lost they would still succeed by declining to provide or participate in the non educational care. He submits that this veto would also collapse the distinction between a duty and discretion on the part of the LEA to provide non educational provision. The LEA would be obliged to provide non educational provision which it would be powerless to do, if the parents objected, except by seeking to take the child into care. As I see it this is a valid concern. The LEA would in practice have an obligation despite the statute distinguishing between what it “shall” do as regards educational and “may “ do for non educational.

[35]The elaborate and detailed arguments all boil down to the same issue. The Tribunal determined that suitable and appropriate special educational provision was made in the Council’s proposed placement. It was led into a broader view partly by appearing to treat a need for consistency which they had found was not an educational matter as part of their Decision (as Ground 3 illustrates). The Tribunal is not concerned directly with non educational provision, has no power in relation to it and that provision is a matter of discretion for the Council. These wider considerations should not have affected its judgment although it is understandable that the members looked at a broader picture. The jurisdiction of the Tribunal is limited to the three matters in Section 326(1A) which I have set out above. An appeal against the special educational provision specified in the statement is just that. Having decided that the provision of Maythorn was not part of the special educational provision the Tribunal ceased to be concerned with whether or not they could order that element of provision for Ben. It was therefore an error of law for the Tribunal not to name Sunnyside in Part 4 having been, by the end of Paragraph F, on the point of doing so. The overall concern of the Tribunal that it could not enforce its decision by attaching a condition that Ben attend the Maythorn unit was understandable and well intentioned. But that limitation is a result of the statutory limit on its jurisdiction. It was not a relevant concern to a Tribunal whose jurisdiction was limited to Ben’s special educational needs. It follows that the Tribunal’s concerns were misplaced and, having reached the findings of fact and judgment which it did, it should have dismissed the parents’ appeal against the Council’s naming of Sunnyside in Part 4.

Ground 4

[36]The Council claims that if it is wrong in its other grounds the Tribunal erred in its approach to the reasons given for determining that Maythorn was not available. The council say that the Tribunal erred in failing to apply correctly Section 20(7) of the Children Act 1989. That subsection provides as follows:- “A local authority may not provide accommodation under this section for any child if any person who –(a) has parental responsibility for him;

(b) is willing and able to – (i) provide accommodation for him; or (ii) arrange for accommodation to be provided for him, objects. (i) provide accommodation for him; or (ii) arrange for accommodation to be provided for him, objects.

[37]The Council characterises this position as giving a non absolute right to those having parental responsibility to object to the provision of accommodation. Mr McManus QC refers to a number of passages in the material before the court in which Mr and Mrs Haslam are, very understandably, expressing a belief in Ben’s need in future to have a specialist residential placement rather than remain at home because his challenges are increasing as he grows and not diminishing. The Tribunal had before it the judgment in R -v- Tameside MBC ex p J [2000] FCR 173 which it saw as establishing the principle that “it is clear from that case that parental responsibility remains with the parent and that such an arrangement requires parents consent”. The Council say that the Tribunal overlooked the point, not dealt with in Tameside, that Section 20(7) means that where parents are in a position to provide suitable accommodation to the child they have the right to prevent the child being voluntarily accommodated elsewhere. But in this case the parents were not able to offer suitable accommodation elsewhere. The Council relies on the parents advancing a case that they could no longer accommodate Ben at home, the council’s acceptance of this in its case statement, the Tribunal’s finding at F that it was difficult to see how the parents at home could be an integral part of delivering the child’s need for a consistent approach and the other evidence available in the papers.

[38]Mr McKendrick responds by submitting that the Council’s interpretation of Section 20(7) is an unlikely one because it seeks to impose an additional responsibility on the parents when the plain meaning of the Section does not warrant this. The scheme of the Act permits an authority to override parental consent issues where the welfare of a child is prejudiced by unsuitable accommodation and to do this by a care order. Even if the Council’s interpretation were correct there would need to have been, when the Tribunal took its decision, an assessment regarding whether the parents could provide Ben with suitable accommodation.

[39]Mr Friel submits that it if the Council’s proposal was correct, and leaving to one side whether there was direct Children Act care planning involvement, the proposal would amount to placing Ben in care without due process, imposing a particular residential regime upon both him and his parents. He submits that Section 20 was not intended by Parliament to be used in this way.

[40]Ground 5, linked to grounds 1 and 2 alleges that the Tribunal erred in law, if Mr and Mrs Haslam were able to bring themselves within the right to object pursuant to Section 20(7), when it decided that the objection was an effective bar in law to their naming Sunnyside. The Council says that the Tribunal failed to take into account that the non educational provision to meet the need for extended respite care was the “option” of a 52 week placement at Maythorn. The Tribunal behaved irrationally in failing to conclude that the council had offered to provide Ben with appropriate non-educational provision. The parents respond that this ground makes little sense. If the interpretation of Section 20(7) urged in ground 4 is not correct, the parents rejected Maythorn and the Council was not prepared to consider care proceedings there was in reality no “option” for Ben to be placed at Maythorn.

[41]I conclude that I should not make findings on ground 4. As the Council has succeeded on its other grounds they are not necessary for my decision. That is itself not a reason for omitting to deal with these grounds. However it becomes so when taken with the fact that they raise issues apparently similar to those to be considered in Ben’s separate application for judicial review, and touch on areas of family law, particularly the policy aspects relied on by Mr McKendrick and Mr Friel, best addressed by a specialist judge in that area. Furthermore no first instance findings would be required before an appellate court could appraise these two grounds if I am wrong about the first three..

Conclusion

[42]I conclude that the Tribunal erred in law and will hear submissions when this judgment is handed down about the most appropriate remedy.

[43]In the course of the hearing some submissions were properly directed to the fact that it has now become very difficult if not impossible for Mr and Mrs Haslam to manage Ben at home. This feature of the case may leave an inaccurate impression. Having read all the papers I wish to record the Court’s admiration and respect for the remarkable efforts and sacrifices which Mr and Mrs Haslam have made over a long period not just to care for Ben but also to do so while at the same time raising and caring for their other children.

[44]I shall be grateful if suggested corrections of the usual kind and a note of any points which any party wishes to raise are sent to me not less than 48 hours before this judgment is handed down. GH010796/DC