WS v Whitefield Schools & Centre & Anor [2008] EWHC 1196 (Admin)

Case No CO/10907/2007

[2008] EWHC 1196 (Admin)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

THE ADMINISTRATIVE COURT

Venue Royal Courts of Justice

Date Wednesday, 7 May 2008

Strand

London WC2A 2LL

B e f o r e:

MRS JUSTICE DOBBS

Between

WSAppellant

(BY HIS LITIGATION FRIEND, MR S)Appellant

-v-

Between

THE GOVERNORS OF WHITEFIELD SCHOOLS AND CENTRERespondent

CHAIR OF THE SPECIAL EDUCATIONAL NEEDS AND DISABILITY DISCRIMINATION TRIBUNALRespondent

Computer-Aided Transcript of the Stenograph Notes of

WordWave International Limited

A Merrill Communications Company

190 Fleet Street London EC4A 2AG

Tel No: 020 7404 1400 Fax No: 020 7831 8838

(Official Shorthand Writers to the Court)

Mr S (acting as Litigation Friend) appeared for Appellant

for The Respondents did not attend and were not represented

Judgment

Introduction

[1]In this case Mr S challenges the decision of the Special Educational Needs and Disability Tribunal (SENDisT) of 12 November 2007 dismissing his claim that the First Respondent:(1) failed to ensure W's prompt return to school after a SENDisT decision in May 2006 and

(2) to make reasonable adjustments to ensure that W could return during the academic year 2006/2007. There was a preliminary issue raised by Mr S, namely that, strictly speaking, he should be the Appellant, not his son. Moreover, he should have added the Chair of the Tribunal as a Respondent. He undertook, with permission, to amend the first matter. He points to the fact that the Second Respondent has taken no point on the second issue and nothing, it is submitted, turns on it. It is correct that the Second Respondent has taken no point on this issue and given the response or rather lack of substantive response of the Second Respondent to the proceedings as a whole, the point is an academic one in the circumstances.

[2]This is a statutory appeal, expedition having been directed by Deputy Master Knapman on 3 March 2008, in order to have this matter heard before the Appellant's related, but not linked, case in the Court of Appeal. Having read the transcript of the judgement of the Court of Appeal which granted leave to appeal, it is difficult to see what relevance this case has to that appeal, which: a) gave leave on three grounds: i) whether the judge exercised his discretion wrongly in relation to an extension of time; ii) whether a claim for PI was appropriately pleaded; iii) whether the judge erred in finding that he had no jurisdiction to consider timetable and curriculum issues, b) deals with events which precede the post-May 2006 events with which SENDisT was concerned.

[3]Brief mention needs to be made about the background to the hearing of the appeal. The application notice was issued on 6th December 2007. The First Respondent filed its notice on 21st December 2007. Counsel representing the First Respondent submitted a skeleton argument in response to the grounds on 2 January 2008, indicating on 3 January that he proposed to send in a revised skeleton argument once he had seen the Appellant's skeleton argument. The Appellant's skeleton argument, a 40-page document, is dated 14 January 2008. On 17 January 2008, the Treasury Solicitor, representing the Second Respondent, indicated that it was considering its position with regard to the appeal.

[4]By the time of the hearing, the court had received a letter from the First Respondent indicating that, in the interests of saving costs, their representative did not intend to attend the hearing. No revised skeleton argument was enclosed. The Appellant showed the court a letter from the Treasury Solicitors indicating that the Second Respondent also did not intend to be represented at the hearing. The court was not satisfied, in the light of the lack of the further submissions by counsel for the First Respondent, that the Appellant's lengthy skeleton argument had been received by the two Respondents. Mr S indicated that he had served the papers, but had no documentation with him to indicate when this happened and whom he served. The court took the view, in the circumstances, that in order not to waste court time by adjourning, the hearing should take place, but that the parties should be served with the skeleton argument and the judge's note of the court proceedings, to enable them to decide, whether they wished to be heard on another day or wanted to make further written submissions. This course of action was agreed by the Appellant, as I shall now call him. Pursuant to the order of the court, the two Respondents have replied. They do not wish to be heard. The First Respondent has made brief submissions, contained in a letter dated 15 April 2008. What also transpires from the letter is that counsel for the First Respondent had contacted the court by phone and e-mail to indicate the First Respondent's position, followed by a letter dated 19 March. This information was not before the court at the time when enquiries were made and the consequent order made. The issue in brief

[5]The Appellant's son (W) is a severely autistic young man (he was born on 24 February 1990), who attended Whitefield school (the First Respondent) for over 10 years before he was excluded and his name taken off the school roll. The conditions for his re-admission are challenged as being discriminatory. There is an additional challenge to the failure to provide certain recreational facilities. Chronology

[6]The chronology of events is taken largely from the decision of the Second Respondent. On 20 July 2005, the First Respondent terminated the Appellant's placement at Whitefield school, because it took the view that he should be more appropriately placed at a residential special school. His parents disagreed with this view. In December 2005 the LEA issued a new final statement.

[7]An appeal to SENDisT against the contents of W's Statement of Special Educational Needs, which, inter alia, failed to name a school under Part 4, resulted in a decision of 23 May 2006, ordering the LEA to name Whitefield School under Part 4 of the Statement. On receipt of the decision, the school held a strategy meeting to formulate a re-integration plan for W, since(a) he had been out of school for one year, and

(b) when he had been at Whitefield, he had not been part of a class group. A risk assessment was required before re-admission. He also needed to form relationships with the adults who would be responsible for him before he could be placed with a group of pupils. The school wished to train additional staff and to consider appropriate accommodation. On 25 May 2006, the school wrote to the parents inviting them to attend a meeting to agree a re-integration plan - they declined.

[8]On 7 June, a copy of the re-integration plan was sent to the parents. On 9, June a meeting was held with the parents, after which, on 12 June, they wrote to the school clarifying their views on the management of re-integration. This was responded to by both the local authority and the school in letters dated 14 June. Further correspondence ensued, and on 4 July, Mr Chapman sent a letter to the parents indicating how the school intended to carry out re-integration. There then followed further correspondence, the parents not being happy with what was proposed. The school term ended on 20 July. Eventually Mr S suggested that his son should start school in September. The school proposed that he should start on 7 September. The plan was for W to join a small group of pupils after he had spent a short time off-site developing relationships with the adults who would support him on a 2:1 basis. The rest of the chronology will be dealt with under the issues the Tribunal had to deal with. Issues before the Tribunal

[9]The first ground of the claim before the Second Respondent was the failure by the First Respondent to ensure W's prompt return to school after the SENDisT decision in May 2006. The Tribunal needed to consider whether the treatment complained of was for a reason relating to his disability and if it was, whether it was less favourable treatment than others who were not disabled would receive. If it was less favourable, was it justified? In short, the Tribunal found against Mr S. Their reasons will be considered later on in this judgement.

[10]The second ground of complaint was that W's fixed term exclusion from 12 to 29 September 2006, which was upheld by the discipline committee of the governing body, amounted to discrimination by less favourable treatment.

[11]The evidence before the Tribunal on this issue related to an aggressive outburst by W on 8 August 2006 during a respite holiday placement in Newquay which was arranged by Social Services. It was said that whilst walking with his workers to get an ice cream from a café, W became very agitated. He assaulted a young boy. The matter was reported to the police. The police took no action as the parents had pressed no charges. The school was told about this incident. There was concern that the risks presented by W were greater than had been anticipated, especially as the school had children as young as 3 years. Mr Waddington, the Head of Vulnerable Children Services at the LEA, took the view that a fuller investigative report was required, and advised Mr Chapman that a fixed-term exclusion would be justified. A letter was written to Mrs S conveying the decision to impose a fixed-term exclusion of 14 days in order to do a revised risk assessment. Mr S appealed the decision. This was considered by three governors on 12 October 2006, who decided that the period imposed by the school was justified and correct. However, the Tribunal found that the treatment of W was less favourable because of his disability, and concluded that reasonable adjustments could have been made to avoid the need for a fixed-term exclusion; that whilst it was appropriate for Mr Chapman to make further assessment, it could be done within the context of W continuing to receive an education, subject to reasonable adjustments. The Tribunal thus found acts of discrimination against W by both the First Respondent and the Board of Governors. The tribunal ordered that the First Respondent:

"• By no later than the end of the Spring Term 2008 undertake together with the Senior Management Team and all staff of the school, either refreshing or reviewing training of their respective duties under the DDA. In any event this should include specific and distinct training in the area of exclusions. • By no later than the end of the Spring Term 2008 review its policies and procedures with regard to discrimination. • By no later than 31 December 2007 apologise in writing to W and his parents for the discrimination found proven. • By the end of the school term ensure that there was added to W's file a note recording that SENDisT had found the fixed-term exclusion of 14 days given on 11 September 2006, to have been discriminatory and that, consequently, it should not have been given."

[12]The third head of claim related to the alleged failure of the First Respondent to make reasonable adjustments to ensure that W could return to school during 2006/2007 academic year, with particular regard to the provision of swimming and the obtaining of an appropriate health and safety risk assessment.

[13]The matters complained of related to the lack of access to swimming at the beginning of W's re-integration, the school having taken the view that, due to the August incident, it would be irresponsible to re-instate it without further assessment and before he had built up a good relationship with the staff. No reasonable adjustments could be made, as the school's swimming pool had narrow access which was unsuitable should W become angry. He had in the past refused to come out of the pool, which would cause problems in a public pool. Moreover, there were others at the school who needed regular hydrotherapy, and if W were to be difficult, which he could be, it would have significant consequences for the others. The parents had been asked to identify other activities he could do instead, and they had suggested roller-blading, which was an activity which could be accommodated. The grounds of appeal

[14]The grounds of appeal as submitted with the appeal application, in summary, are that:(i) the Second Respondent applied the Disability Discrimination Act 1995 incorrectly when reaching its decision on 12 November 2007;

(ii) the Second Respondent failed to identify all incidents of less favourable treatment referred to in the Appellant's pleadings;

(iii) having found that the First Respondent had treated W less favourably, in relation to the three issues identified, the Second Respondent erred in failing to consider whether the treatment in question was justified in accordance with section 28B(1)(b);

(iv) the Second Respondent's decision was irrational on the facts as the First Respondent acted in an inconsistent manner towards the Appellant; and

(v) the Second Respondent's conduct of the hearing breached the Appellant's right to a fair hearing under Article 6.

[15]The grounds are amplified in the 40-page skeleton argument. Indeed, parts of the skeleton argument arguably raise issues not pleaded in the original grounds. Leave has not been sought to amend the grounds of appeal, but for the purposes of this exercise, the court will deal with all issues raised as if leave had been given. The court will follow the order of the Appellant's skeleton argument. As already indicated, the court does not have the benefit of a substantive response to this skeleton argument from either Respondent, and such submissions as have been made are, for present purposes, ignored. In setting out the grounds and reaching my decision, I do not intend to rehearse every point contained in the lengthy skeleton argument. Suffice it to say that I have read the papers and taken into account all the arguments advanced by the Appellant.

(A) THE LIMITATION ISSUE

[16]This ground relates to the decision of the Tribunal not to admit evidence relating to a number of exclusions of W from the school between 2001 and 2002, and also to a termination of W's placement in 2005. The Appellant wished to advance a claim in relation to the 2005 evidence and to introduce the evidence of the 2001-2002 events by way of background. The basis of the Tribunal's decision was that(a) the events in 2001-2002 were way outside the usual six-month period, and it would have been difficult to obtain sufficient evidence to have a full and fair picture, as staff would have changed;

(b) the acts could have been subject to a claim at the appropriate time; and

(c) the exclusion of W in July 2005 was an act of the LEA and not the school, and should be the subject of a separate claim.

[17]It is said that this decision is one that no reasonable competent tribunal could come to because, inter alia, another and different tribunal had allowed the Appellant to pursue allegations arising out of July 2005. Moreover, it had always been the Appellant's case that the school and the LEA had acted unlawfully and the evidence showed as much.

[18]This issue was dealt with, together with other issues of law and case management, at a hearing on 15 May 2007. The Tribunal was (from the notes of the hearing) clearly concerned as to why this issue was being raised so late in the day. Mr S indicated, amongst other things, that he had instigated JR proceedings in the High Court in October 2005 (challenging the LEA's decision of 20 July 2005, to terminate W's place at the school and Whitefield's decision to remove his name from the school roll), proceedings which were technically still alive; that he was unaware of the time limit and he was under pressure. The First Respondent objected to admission of the earlier claim on a number of bases. On the submissions made before them, which did not go into the detail now set out in the skeleton argument, the decision, which was an exercise of discretion, was clearly within the range of reasonable responses open to the Tribunal. The Tribunal was entitled to take the view that(a) even if it were to be by way of background, there would be difficulties relating to events back in 2001-2002, particularly when such matters could have been dealt with at or nearer the time;

(b) the claim relating to 2005 should not be admitted because it was a decision taken by the LEA. It is clear from the decision of the SENDisT review hearing of 19 June 2007, in relation to the LEA discrimination claim issued by Mr S in March 2007, that the decision was that of the LEA. Moreover, JR proceedings had been initiated in relation to the same subject matter. There was nothing irrational therefore in the Tribunal's decision. In any event, in the light of the facts as found by the Tribunal, it is difficult to see how the early events of 2001-2002, and the exclusion in 2005 could have helped them in their decision making on the two issues on which they found against the Appellant.

(B) THE EUROPEAN CONVENTION ON HUMAN RIGHTS

[19]The Appellant complains inter alia, that(a) the Tribunal failed to identify all the relevant primary facts and their decision was riddled with errors;

(b) prevented the Appellant from putting questions going to credibility of the witnesses;

(d) failed to explain the burden of proof to the parties;

(e) failed to address the burden of proof in their decision;

(f) adopted an informal approach which was wholly inappropriate;

(g) heard evidence from Mr Chapman of events which took place in 2001, but refused to allow Mr S to refer to incidents before May 2006 on the basis that it was irrelevant;

(h) failed to refer to any documents in their decision;

(i) failed to make sufficient allowance for the fact that the Appellant was a parent acting in person;

(j) the reasons for the decision in the adjournment notice are inadequate;

(k) the Tribunal's decision to reject the application to join the closely related claim against the LEA was one which no reasonable competent tribunal could reach;

(l) failure to take into account various policies/advice issued to special schools by the Department of Education;

(m) the procedures of SENDisT compare unfavourably with conduct of cases in the Employment Tribunal and County Court.

[20]Dealing with the individual points raised, the court finds as follows:(a) Whilst the Tribunal did not rehearse every piece of evidence, the summary of the facts is adequate. Moreover, the Appellant has failed to identify the numerous alleged factual errors.

(b) The assertions of what took place during the hearing have not been supported by any evidence. The notes of the hearing do not support them. Mr S was able to put the essence of his case. For example, there is reference to the parents being "strung along" by the school (page 53); Mr Damali not being competent to carry out a risk assessment (page 64); W being "set up to fail" (page 67; there being a cynical attempt to "spin things out" (page 74).

(c) It is possible to identify what evidence the Tribunal accepted or rejected which, expressly or implicitly, demonstrate the credibility findings.

(d) It is clear that at the beginning of the hearing, the Tribunal went through the legal issues to be decided. There is reference to the burden of proof in the Respondent's submissions (page 69) although the note is not clear, but the Appellant (a qualified and experienced solicitor) gave no indication that he was unaware of the burden of proof, disagreed with counsel's submissions or was unhappy with the analysis of the law.

(e) It is implicit from the Tribunal's analysis and approach to the law that the burden of proof was on the school to prove justification. It is to be noted that it found that the school had not satisfied the burden of proof on the second issue, and thus was aware of where the relevant burden lay.

(f) With regard to the informal proceedings, the first thing to note is that the regulations permit the Tribunal to control the manner in which it hears cases. It is also to be noted that the Tribunal did accede to Mr S's application to have the evidence given on oath, given the history of acrimony between the parties (page 41). However, importantly, Mr S had disclosure of documents in advance of the hearing and knew the essence of the evidence of the other party's case. He was able to call witnesses or have evidence read on his behalf. He was able to cross-examine witnesses who gave live evidence on oath (although he makes complaint about this). He was able to make submissions and present his case. Whilst the procedure may have been informal, there is nothing to suggest that it was so lacking in fairness as to amount to a breach of Article 6.

(g) There is very little evidence of the previous incidents in the notes of hearing. There is one reference in the decision, and this evidence of previous behaviour was clearly relevant as going to the state of mind of Mr Chapman regarding the subsequent assault by W which took place in August 2006. It is to be noted that Mr S himself referred to previous incidents by W (page 55). Indeed, in his submissions, at the end of the hearing, he indicated that the August 2006 incident was regrettable but should not be a surprise to the school (page 75). In any event, this earlier incident referred to by Mr Chapman was primarily in relation to the head of complaint which the Tribunal found proved against the school. Mr S wished to rely on the fact that there had been improvements from the end of 2001 in W's behaviour as recorded in the SENDisT decision of 2 December 2002 and other documents, but that can have little impact on the position five years later, in the summer 2006, in light of the specific incident which occurred in August 2006.

(h) Whilst the Tribunal did not refer to any documents in the case, and whilst they were referred to some documents during the course of the hearing, it is not incumbent on the Tribunal to rehearse every piece of evidence considered. In any event, some of the documents were identified during the course of oral submissions before this court, and many of them had little or no relevance to the real issues to be decided. The Tribunal was perfectly aware from Mr S of the history of his relationship with the schools, his various appeals and legal proceedings and the history of acrimony between the parties.

(i) The Tribunal was also aware that Mr S was acting in person. He made submissions to that effect and it was noted (page 35). However, he cannot be put in the same category of the usual litigant in person who comes to court with no legal qualifications or experience. Mr S's real problem is that he is an advocate in his own cause, albeit that the issue relates to his son. He is understandably very deeply and emotionally involved in this case, that he sometimes has difficulty seeing the wood from the trees. It is not surprising that the Tribunal (if they did) tried to get him to focus on the real issues which had to be decided. Sadly Mr S has not taken on board the comments of the Court of Appeal about his grounds of appeal being prolix.

(j) I do not propose to deal in any detail with the reasons given in the adjournment notice, as this was not raised in the grounds and it takes the case no further.

(k) I have checked the notes of the hearings. There was no application to join the two claims. Whilst Mr S refers in a letter dated 3 May 2007 (Tab 2 page 39) that the two matters should be joined, as he himself admitted during the course of submissions to this court, he made no such application. It is clear from the notes of the hearing that the letter of 3 May was considered by the Tribunal and that the claim was mentioned, but no application was made for joinder. Rather, the Appellant went on to deal with his application to introduce a claim in relation to the July 2005 exclusion (pages 4-5). He now seeks to argue that he made an application to join both claims in front of another Tribunal. The fact of raising the issue at another tribunal does not help the Appellant. This ground is without foundation. Moreover, it was not pleaded in the grounds of appeal.

(l) This ground also was not pleaded. The Department of Education's guidance was referred to during cross-examination by Mr S (pages 63-64) although not in his submissions. Although Mr S in his skeleton argument does not highlight any particular relevant extracts on which he relies, or indicate the issue to which they might relate, it is likely, although not stated explicitly, that the evidence did have an effect on the decision to find in Mr S's favour on issue two. Page 64 of the Chairman's notes of the hearing has a starred passage noting that the guidance refers to "removal from site rather than exclusion".

(m) See under (f) above.

(C) LEGAL MISDIRECTION

[21]The Appellant in paragraphs 22 to 25 of the skeleton argument submits that the Tribunal in relation to issues one and three erroneously considered the issue of justification in the light of whether reasonable adjustments could be made, instead of considering whether the First Respondent had discharged the burden of proof to establish that its justification of the less favourable treatment was "material to the circumstances of the particular case and substantial". In relation to issue two, it made no mention of justification and only considered "reasonable adjustment".

[22]As issue two was determined in the Appellant's favour, and not a decision subject to appeal, criticisms of the approach will not be considered. Paragraphs 28B and 28C of the Disability Discrimination Act 1995 as amended reads as follows:

"28B Meaning of 'discrimination' (1) For the purpose of Section 28A, a responsible body discriminates against a disabled person if- (a) for a reason which relates to his disability, it treats him less favourably than it treats or would treat others to whom that reason does not or would not apply; and (b) it cannot show that the treatment in question is justified. (2) For the purpose of section 28A, a responsible body also discriminates against a disabled person if- (a) It fails, to his detriment, to comply with section 28C; and (b) It cannot show that its failure to comply is justified. (3) - (5) … (6) Less favourable treatment of a person is justified if it is the result of a permitted form of selection. (7) Otherwise, less favourable treatment, or a failure to comply with section 28C, is justified only if the reason for it is both material to the circumstance of the particular case and substantial. 28C Disabled pupils not to be substantially disadvantaged (1) The responsible body for a school must take such steps as it is reasonable for it to have to take to ensure that- (a) in relation to the arrangements it makes for determining the admission of pupils to the school, disabled persons are not placed at a substantial disadvantage in comparison with persons who are not disabled; and (e) in relation to education and associated services provided for, or offered to, pupils at the school by it, disabled pupils are not placed at a substantial disadvantage in comparison with pupils who are not disabled."

[23]With regard to issue one, the Tribunal set out at paragraphs A and B of its decision the tests to be applied. Firstly, it had to decide if W was disabled, and secondly, having found that he was, whether he had been discriminated against. The Tribunal, having found that W was disabled said this:

"(B) Mr S complains that the Responsible Body failed to ensure W's prompt integration into Whitefield's School after the SENDIST Decision of May 2006. We need to consider whether the treatment complained of was for a reason relating to W's disability. If it was, we then need to decide whether it was less favourable treatment than others who were not disabled would receive. If we decide that it was, we must ascertain whether the treatment was justified, or whether there were reasonable adjustments that could be made. To be justified the actions have to be for a material and substantial reasons (sic) relating to the circumstances of the case. We bear in mind that it is not possible in every case to make a reasonable adjustment. We must also consider whether the treatment would have been justified even if the Responsible Body had complied with its duty to make reasonable adjustments."

[24]The Tribunal, going through the formula which, from the notes of hearing, it appears was agreed by the parties, came to the conclusion that the treatment did relate to W's disability, as the delay in re-integration was occasioned by the need to put into place assessments and protective measures. It found that this treatment was less favourable than for a person who did not have the disability, but concluded that the First Respondent had made all reasonable and sensible adjustments that could be considered in the circumstances. They further considered that the less than favourable treatment was entirely justified, as the delay came about as a result of the First Respondent putting in place measures to achieve the best possible chance of a successful re-integration for W. They found that the delay was not lengthy and that there was no unlawful discrimination.

[25]It is implicit from what is set out above that the Tribunal had well in mind that the justification of the less favourable treatment had to be for a reason which was material to the circumstances of the particular case and substantial, even in light of the reference to reasonable adjustments. No material error of law is disclosed therefore, and the decision cannot be characterised as being perverse.

[26]With regard to issue three, the Tribunal said as follows:

"(R) Finally Mr S complains that Whitefield failed to make reasonable adjustments to ensure that W could return to school. He made specific reference to the inability of the school immediately to provide swimming and also to the alleged inadequacy of the health and safety risk assessment carried out by Mr Damali. We therefore need to consider whether the treatment complained of was for a reason relating to W's disability. If it was, then we need to decide whether it was less favourable treatment than others received who were not disabled. If we decide that it was, then we must decide that the treatment was justified or whether there were reasonable adjustments that could have been made. To be justified the actions have to be for a material and substantial reason relating to the circumstances of the case. We bear in mind that it is not possible in every case to make a reasonable adjustment. We must also consider whether the treatment would have been justified if the Responsible Body had complied with its duty to make reasonable adjustments."

[27]It is difficult to see, in the light of what had gone before with regard to issue one, how it can be suggested that the Tribunal materially misdirected itself. The essence of the test to be applied is set out by the Tribunal in paragraphs (B) and (R). There is no material error of law disclosed. The reasoning for the decision is clear. What weight the Tribunal gave to the evidence is essentially a matter for the Tribunal, unless the approach can be shown to be so illogical as to be irrational or perverse.

(D) FORMULATION OF ISSUES

[28]This heading complains that the Tribunal erred in adopting a narrow approach towards identifying the First Respondent's less favourable treatment of W, and failed to address important allegations made in the claim form, case statement and letters written by Mr S to SENDisT. The Tribunal should have included additional issues for their consideration.

[29]It is to be noted that there were two hearings before the hearing in October. Those hearings were, in effect, case management hearings, dealing with the various applications being made, admissibility of evidence and formulation of the issues to be considered by the Tribunal at the hearing. The allegations of discrimination were being made by the Appellant. It was his task to identify at the hearing the issues he wished to raise.

(i) At:

"Agenda. (1) Is he disabled. Update on his behaviour; (2) Failure to ensure prompt return to school 5 June 06. Actions of school; (3) Fixed-term exclusion - 11 Sept 14 days - Reason for this - steps taken by school to investigate - steps taken by school to make adjustment so he could return Sept/early Oct; (4) Schools failure to make reas adjustment to formulate return for academic year Sep 06-07." (ii) at: "

Agenda. Agreed - failure to make reasonable adjustment after statement - discrimm. by exclusion 14 days, failure to make reas.adj.for return Sept 06."

[30]The notes of the hearing show that the issues raised and the evidence given was on the three issues which are reflected in the Tribunal's decision. They were not addressed on any other topic in submissions. The Appellant's submission that the Tribunal should have taken a wider approach is without foundation therefore.

(E) ISSUE ONE

[31]The Appellant complains that the Tribunal erred either in failing to take account of or giving proper weight to evidence under the following headings: -(i) expeditious approach;

(ii) phased re-introduction;

(iii) venue;

(iv) volte face. It is also suggested that there are some errors of fact. I do not intend to rehearse all the examples given. The essence of the grounds are, in effect, a disagreement with the findings of the Tribunal. As indicated before, what weight is given to a particular piece of evidence is for the Tribunal, absent any obvious and glaring illogicalities and significant and material errors of fact. I propose therefore to deal with these matters compendiously.

[32]Looking at all matters in the round, including the representations made by Mr S of course, this court does not find that the decision made by the Tribunal was one that no reasonable and competent tribunal could have come to bearing in mind the law to be applied. For example, as a matter of common sense, there would need to be a re-integration plan given W's lengthy absence from school, and sensibly a phased re-integration. If no such plan had been put in place, the school could justifiably have been criticised. Whatever the view of the parents, the school had a duty not only to W, but also to the other pupils and staff. The Appellant argues, in effect, that being one of the best specialist schools in the country, they should have been able to take W back immediately as they were experts in dealing with difficult children. However, by making that very point, the Appellant in fact underlines why the Tribunal was justified in acting on the evidence from the school, because they were the experts. It is difficult to see how it could be argued that Mr Chapman was obstructing return to the school when so many plans were being put into place and when he gave evidence that "all was in place" (page 45). It is quite clear that it would take some time to acquire and train staff, and time thereafter to allow the staff to develop a relationship with W and to make other adjustments. Given that these preparations were for the benefit of W but also for the protection of the other pupils and staff, it is difficult to see how the alleged delay could be characterised as unreasonable. It is to be noted as well that initially Mr and Mrs S declined to meet with the school to discuss a re-integration plan. Much of the summer of 2006 was spent in correspondence between the parties, with the parents objecting to various courses of action and the matters going backwards and forwards. In other words, the consultation between the school and parents during this period of preparation also contributed to the delay. It should also be remembered that the summer holidays began after 20 July.

(F) INHERENT INCONSISTENCY

[33]In short, it is submitted that, as the Tribunal found that the school had failed to make adequate adjustments to avoid the need for the fixed-term exclusion in ground two, because it found that the revised risk assessment said to be needed due to the incident in August could be conducted without the need to exclude W from the school, it was irrational for them not to take the same approach with regard to issue three. This point will be dealt with under issue three.

(G) ISSUE THREE

[34]The grounds allege that the Tribunal erred in relation to findings made under the heading(i) continuing exclusion;

(ii) Mr Damali's risk assessment;

(iii) curriculum restrictions and other evidence. As noted earlier, the detail of the complaint is not going to be rehearsed. The essence of the complaint is that the Tribunal failed to place adequate weight on the evidence relied on by Mr S and too much weight on the evidence relied on by the First Respondent, including the risk assessment by Mr Damali. The court has already found that the Tribunal did not err in only considering the three issues identified, so that matters relating to continuing exclusion, an issue which the Tribunal did not decide, will not be addressed.

[35]In summary, in respect of curriculum restriction, which was the issue it was considering, the Tribunal found that W had suffered substantial disadvantage by being deprived of access to the full school curriculum, but concluded that the school had made all reasonable adjustments to mitigate the disadvantage of W not being able to use the swimming pool, and did its best to provide other activities for W. With regard to assessments, it found that it was reasonable for the school to commission an assessment from an independent educational psychologist rather than from the school staff in the context of the acrimonious relationship which existed between the school and family. It was not able to conclude that further adjustments could have been made to ensure that W had access to swimming sessions in a way which was safe for him and others using the facilities. The Tribunal thus concluded that there was no unlawful discrimination.

[36]Dealing with the challenges with regard to the assessment of the evidence, mention has already been made about the position of the fact-finder and the relatively rare circumstances in which an appellate court will interfere with findings of fact made by a body which has had the opportunity to see the witnesses and consider all the evidence. It is clear that the Tribunal was aware that W both enjoyed and benefited from swimming. This had to be balanced, in the light of the incident reported, against the risk to himself and risk to others, and whether, for the short period whilst risk was being assessed, there were other forms of recreation he could enjoy. Mr S submitted that the Tribunal erred in finding that the evidence of Ms Davies totally undermined that of Mr Chapman. In the court's opinion it did not, because, despite her expertise, Ms Davies had no personal knowledge of W and the incidents concerned. She indicated in her evidence that she could not comment on the severity of W's behaviour, but from the papers it seemed extremely challenging. She did add that it was not unknown for the school to deal with children with similar behaviour (). Mr S chose to rely only on this last bit of her evidence. Overall, despite the criticisms that are made, the decisions of the Tribunal were ones which it was entitled to reach.

[37]Dealing with the issue raised under (F) above, the two decisions can be distinguished. The Tribunal found that the preparation of a risk assessment did not justify a blanket ban on W attending the school, and thus reasonable adjustments could be made to allow him on site, whereas in relation to issue three, they did find that an assessment with particular regard to the use of the swimming pool was necessary, both for the safety of W, the other users (whose need was significant due to their physical conditions), and the staff. There was no blanket ban on W enjoying physical activities pending an assessment, but only a ban on swimming. There is no inconsistency nor irrationality in that approach.

[38]It follows from the above that the court finds that the conclusions reached by the Tribunal were ones which it was entitled to reach; the law was properly applied to the facts; the reasons given for the decisions were adequate and the Appellant was not denied a fair hearing. This appeal is therefore dismissed and the order of the Tribunal stands.

[39]LITIGATION FRIEND: My Lady, I would apply for leave to appeal.

MRS JUSTICE DOBBS: Where is the basis for that?

[41]LITIGATION FRIEND: The basis, my Lady, is essentially on the construction of 28B.

[42]MRS JUSTICE DOBBS: Where is the hierarchy? Where is it in the rules and regulations that leave to an appeal is open?

[43]LITIGATION FRIEND: Well, I thought it was the standard practice of this court to consider whether --

MRS JUSTICE DOBBS: Yes, where is my jurisdiction? That is what I am asking.

[45]LITIGATION FRIEND: Under the inherent jurisdiction of the court.

[46]MRS JUSTICE DOBBS: Not every decision of the court is subject to appeal. Some of them are final decisions, so I just want to know the basis of the jurisdiction.

[47]LITIGATION FRIEND: I cannot assist my Lady in terms of chapter and verse, other than to say --

[48]MRS JUSTICE DOBBS: If you are seeking leave to appeal, I need to know first that I have jurisdiction to grant it in relation to this particular procedure.

[49]LITIGATION FRIEND: I cannot assist my Lady any further here today. All I could do would be to make representations in writing over the next couple days.

[50]MRS JUSTICE DOBBS: Well, it is something you could have thought of, Mr S. Let us assume I have jurisdiction for the time being, your application is what?

[51]LITIGATION FRIEND: The basis of the application is that these types of cases come before the courts on a very regular basis from the Tribunal, and in my submission the practice of that Tribunal within the ambit of the regulations is something that needs to be considered by the Court of Appeal, and in relation to this fact -- sorry, in relation to this case, my Lady, we also have the added issue of the interpretation of an important provision under the DDA --

MRS JUSTICE DOBBS: Sorry, which bit are you talking about; their application of the law?

[53]LITIGATION FRIEND: 28B and the material in it.

[54]MRS JUSTICE DOBBS: I am just trying to get the headings. First of all, you are saying their practice needs to be put under scrutiny by the Court of Appeal, and secondly application of the law, yes?

[55]LITIGATION FRIEND: Yes, my Lady.

MRS JUSTICE DOBBS: That is your second heading?

[57]LITIGATION FRIEND: Yes.

MRS JUSTICE DOBBS: Anything else you want to say?

[59]LITIGATION FRIEND: No, my Lady, except to request that a copy of the judgment be made available at public experience.

MRS JUSTICE DOBBS: Why should it be at public expense?

[61]LITIGATION FRIEND: My financial means are extremely stretched at the moment for a number of reasons, and effectively I am bringing this case on behalf of W who has no income. Previous judgments have been made available at public expense in relation to litigation involving W. Furthermore, it would speed up the process if such an order were made today. I am thinking in particular as to whether I would consider it necessary to bring any matters that my Lady has dealt with today to the attention of the Court of Appeal.

[62]MRS JUSTICE DOBBS: As I have already indicated, Mr S, this decision has no relevance to what the Court of Appeal has to decide later on in May, so that is not something that I would be encouraging, and I suspect that the Court of Appeal would not be encouraging it either, because that hearing is not to deal with what I have said today. If there is to be leave given, that will be decided by a different constitution, or it will be decided on a different occasion. So we are not talking about conjoined appeals. Alright, anything else?

[63]LITIGATION FRIEND: No, my Lady.

[64]MRS JUSTICE DOBBS: There are two applications in front of me. The first one is for leave to appeal to the Court of Appeal under two headings: firstly, that the practice and procedures of this particular Tribunal need to be considered by the Court of Appeal; and secondly on the basis that their application of the law was wrong. As has already been indicated in the hearing, it is quite clear from the regulations that the Tribunal has a wide discretion in how it conducts its hearing, but more importantly this court has already found that there was no breach of Article 6. In relation to the application of law, this court has also found that there are no material errors. In my view, there is no realistic prospect of success on appeal, and there is no compelling reason why leave should be given, assuming that I have jurisdiction to do so.

[65]The second application is for a transcript at public expense because Mr S says that his finances are considerably stretched, and he makes the point that although he is the appellant, he is in effect acting on behalf of his 18 year-old son, who has no form of income. That application is granted, but I make it quite clear that by granting the application Mr S should not seek to attempt to use the proceedings in the Court of Appeal on 19 May as an opportunity or an attempt to seek leave from the Court of Appeal in relation to this matter, which, as has been indicated, is not related to the matter before the Court of Appeal. The matter in relation to this one should be dealt with in the normal course of events.