London Borough of Islington v Lao & Anor [2008] EWHC 2297 (Admin)

Case No CO/5984/2008[2008] EWHC 2297 (Admin)
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 20th August 2008
Strand
London WC2
B E F O R E:
HIS HONOUR JUDGE WAKSMAN QC
(sitting as a deputy High Court judge)
Between
THE LONDON BOROUGH OF ISLINGTONAppellant-v-
Between
LAO (BY HIS LITIGATION FRIEND AND MOTHER N O)RespondentTHE SPECIAL EDUCATIONAL NEEDS AND DISABILITY TRIBUNALRespondent
(Computer-Aided Transcript of the Palantype Notes ofWordwave International LimitedA Merrill Communications Company190 Fleet Street London EC4A 2AGTel No: 020 7404 1400 Fax No: 020 7831 8838Official Shorthand Writers to the Court)
Ms Kathryn White (instructed by the London Borough Of Islington, Legal Services Division, Town Hall, Upper Street, London N1 2UD) appeared for AppellantMs Shushin Luh (instructed by Messrs John Ford Solicitors, London N4 2JF) appeared for First Respondent
J U D G M E N T

JUDGE WAKSMAN:

[1]This is a statutory appeal from a decision of the Special Educational Needs and Disability Tribunal ("the Tribunal"), which was given orally on 23rd May 2008 and then put into writing on 27th May 2008, and it is common ground that the relevant decision for today's purposes is the written decision. That decision was itself given on an appeal which had been brought by the mother of the child involved in this case, LAO, who was born on 10th August 1997 and is therefore now just 11 years old, against a prior refusal of the appellant in these proceedings, the London Borough of Islington ("the education authority") to make a statement of special educational needs.[2]The decision reached by the Tribunal on the 23rd and put into writing on 27th May was to reverse that refusal and to order the education authority to provide such a statement. The local education authority's appeal is therefore against the decision that it should do so.[3]No stay of the order made by the Tribunal was granted over the period between its decision and this hearing, and as a result the education authority was compelled to put the statement-making process into action. The statement is in limbo because the proposed statement was provided to Ms O and she has commented upon it, but no final statement has yet been made. It is common ground between the parties that if I decide to quash the order of the Tribunal, the statement in its current state becomes redundant. So that is the nature of the proceedings before me.[4]First, in terms of background, I say something about the statute which is relevant and also the Code of Practice which is relevant. Section 324 of the Education Act 1996 governs the position in relation to a statement of special educational needs (hereafter referred to simply as "a statement"). If the council under an assessment which it has decided to conduct under section 323 of any child's educational needs and of any representations made by the child's parents, considers "it is necessary for the local education authority to determine the special educational provision which any learning difficulty he may have calls for" it shall then make and maintain a statement.[5]It is common ground between the parties that the decision to make a statement is a very significant one for all parties, not least because the result will be that the local authority is then committed to providing those particular provisions which it has determined are required in the light of the child's learning difficulties which may or may not require its funding. It comes at one end of a spectrum of need with which the local authority concerns itself. There are many children within the remit of a local authority who may have learning difficulties and require some form of special educational provision, but this does not in and of itself mean that a statement will be required. Hence, of course, the word "necessary" in section 324(1). Without a conclusion by the local authority that a statement is necessary, there is no duty to make one.[6]Section 324 therefore sets out the conditions which need to be met before the local authority is obliged to make a statement. Those words are in somewhat stark form. Unsurprisingly, further guidance is given. This is to be found in particular in the special educational needs Code of Practice. This deals not only with the making of statements, but other lesser responses on the spectrum which may be sufficient. However, as this case concerns exclusively the question of a statement, I can turn immediately to chapter 8 of the Code of Practice. Paragraph 8:1 reads thus:
"Once all the advice requested for the statutory assessment has been received, as described in Chapter Seven, the LEA must decide whether to draw up a statement. The LEA may decide that the degree of the child's learning difficulty and the nature of the provision necessary to meet the child's special educational needs is such as to require the LEA to determine the child's special educational provision through a statement."
Pausing there, it is obvious that there are two fundamental aspects to the exercise. The first is to consider the degree of the child's learning difficulty, which of course will include an assessment of the child's present progress or otherwise in relation to any treatment he has received so far and, secondly, what the special educational needs as a result of those difficulties are.[7]Paragraph 8:2 then reads thus:
"The LEA will make this decision when it considers that the special educational provision necessary to meet the child's needs cannot reasonably be provided within the resources normally available to mainstream schools and early education settings in the area."
Therefore, having determined first of all the learning difficulties and the present situation of the child, what particular needs it has then and therefore what provision is required, the final step in the analysis is to see whether those provisions are available in what I might paraphrase to be the "normal resources" available to the education authority. Hence the reference to availability in mainstream schools in the area.[8]The Code of Practice gives detailed guidance following paragraph 8:2. But Ms White for the education authority has submitted, this seems to me to be a most important provision.[9]Paragraphs 8.12 and 8.13 give some indication of the sort of factors to which the education authority will have regard and the sort of responses that it can make. So, for example, in paragraph 8:13 it is said that if a local education authority concludes that the child's learning difficulties call for occasional or irregular advice, or access to a piece of equipment or minor alterations, it may feel that the school could reasonably be expected to make such provision from within its own resources through School Action Plus. Where the local education authority concludes that a change of placement may be indicated for the child, even if such a change involves moving from a mainstream school to a specialist resource at the same school, they should consider drawing up a statement. If, on the other hand, the local education authority conclude that the child's learning difficulties require regular and frequent direct teaching, daily individual support, the regular involvement of non-educational agencies, the local education authority may conclude that the school could not reasonably be expected to make such provision from its own resources and the local education authority should formally identify in a statement the child's needs and the full range of provision to be made available and the review arrangements that will be made. The local education authority's conclusions will of course depend upon the precise circumstances of each case, taking into account arrangements for funding schools in the area.[10]So those are some of the factors at which the authority would look. Of course it would do so in the context, no doubt, of discussions and representations from the parents.[11]The only other material that I propose to consider which has a statutory derivation are the Regulations which govern the process to be adopted by a tribunal such as this. In this regard I refer to the Special Educational Needs Tribunal Regulations 2001. Paragraph 32 provides, inter alia:
"(2) The tribunal shall conduct the hearing in such manner as it considers the most suitable to the clarification of the issues and generally to the just handling of the proceedings; it shall, as far as appears to it appropriate, seek to avoid formality in its proceedings. (3) The tribunal shall determine the order in which the parties are heard and the issues determined."
[12]Paragraph 34(1) states that:
"In the course of the hearing the parties shall be entitled to give evidence, to call witnesses, to question any witness and to address the tribunal both on the evidence, including the written evidence submitted before the hearing, and generally on the subject matter of the appeal ..."
[13]It is common ground before me that on an appeal by a parent to this Tribunal against the refusal of the education authority to make a statement, the Tribunal in effect goes through the same exercise that the local authority would go through, having regard to the same materials, although no doubt paying close attention to the reasoning that had been adopted by the local education authority. In particular, just as the local authority must have regard to the statutory test under section 324 and the guidance contained in the Code of Practice, so must the Tribunal.[14]The child concerned in this case, L A O, is someone who undoubtedly suffered from learning difficulties. He was and is a child who unfortunately required some further measures of an educational kind to be taken. Indeed, he received a number of those measures at the primary school which he attended until the summer of this year, namely Canonbury Primary School, in which he was in year 6, the final year.[15]In late 2007 the education authority decided to conduct an assessment under section 323 of the Act. It declined to make a statement, but provided instead a note in lieu of a statement which is contained at page 151 of the bundle. It is common ground that although there are numerous recommendations contained in such a note, the key difference is that the education authority is not obligated to ensure that they are provided at the relevant school.[16]The refusal of the education authority to make a statement, as I have already mentioned, formed the subject matter for the appeal to this Tribunal. Although statements of case were prepared by the education authority and the parent in March 2008, the Tribunal hearing did not take place until 23rd May. That of course, it will be recognised, was a somewhat difficult time because L was by that stage rapidly approaching the end of the school year and indeed the end of his primary school education.[17]At the hearing so far as the education authority was concerned, there were two witnesses whom it proposed to call. One was Lisa Crispin, who was a senior educational psychologist in the Educational Psychology Service at Islington, providing services to that borough. The second intended witness was Ms Sheila Stone, who was at that time the deputy head of L's primary school. She therefore was in a particularly advantageous position to help the Tribunal, not only with the needs and the treatment that he had been receiving at that school, but equally importantly the updated position of L as at May 2008. While the Tribunal had a volume of material from specialists and professionals in relation to L, they had all been provided at the time of the initial assessment back in December 2007.[18]It was also expected that Ms Crispin, although she had not undertaken the initial assessment, was going to be able to assist the Tribunal and support the education authority's case in terms of the question of his present needs, the particular education provision which he now required and what she was able to say about the ability of mainstream schools in the area to provide equivalent support once he had transferred to one of those schools.[19]On any view, the hearing took an unusual course. It lasted no more than about 20 minutes, with one or two breaks, and was truncated by the Tribunal Chair, who announced after a break that it was now making an immediate oral decision.[20]For these purposes a fair account of what happened can be taken from an exhibit to Ms Crispin's second witness statement, which in fact is based simply upon the thorough note prepared by counsel for the authority, Ms White, immediately after the hearing. What happened was this. The parties entered the hearing, represented by the same counsel who have so ably represented them before me today. There was a discussion about late evidence, which in the event was not allowed in by the Tribunal, and that occurred after the first of the two breaks.[21]The Chair then referred to the fact that "this last year is the crux of the matter" and then the Chair asked Ms O'Brien, that of course is L's mother, "Can you help us with this: where is [L] going in September?" She gave a fairly full response. She said that her first choice was Mary Magdalene Academy, but they had said no and she was slightly out of the catchment area. In fact she subsequently raised an appeal. Central Foundation was her second choice, but this had been refused as L had been asked to go to a test, but he had been unable to attend on that particular day because he had a severe migraine. She then said that an appeal had gone in on "Mary Mags" (as it was colloquially described), and there was no decision on that as at the date of this Tribunal hearing. She was asked about how far the schools were from her home. The Chair said that at the moment L had no secondary school and Ms O indicated that was correct. The Chair said, "I think that's all the detail we need on that..." The education authority stated that Lisa and Sheila (that is Ms Crispin and Ms Stone) would like to have a chance to shed more light on the situation. Ms Crispin explained the situation with Central Foundation banding, that Central Foundation were still happy to give L the test. It he were band 4, which was possible, it might be difficult to find him a place. If he were band 3, which Ms Crispin thought was possible, he would be number 1. So Ms Crispin was certainly opening the door to the possibility that that may be a school available, but that was the limit of the questions at that point.[22]Then the Chair asked Ms Crispin a different question: why was he being made to take the test in any event; was it not discriminatory? It is accepted that while it might be understandable why that question was asked, it formed no remit of this particular Tribunal in this particular hearing. Nonetheless, Ms Crispin responded that individual needs were looked at by the schools in the area and it could be looked at again. If it was the case he was unable to take the test, there could be a way in which they could work together to band L according to past test results, but that Ms Crispin was not aware of that taking place as yet. Ms Crispin also said that the Mary Mags appeal was proceeding, but no decision had yet been made. The Chair said that they needed to know which secondary school he is going to, in order to look at whether a statement is needed.[23]The education authority interjected to say that this was not the case. The appeal was about the decision made at the assessment and whether L should have been issued with a statement, or whether the note in lieu and current provision met his needs within the mainstream environment without the need for a statement. The Chair said this had been the position then, but "we are now at the end of May and L is going to secondary school next year and we need to look at provision for him there." The education authority submitted the appeal was about current needs and when statutory assessment was made L was in the beginning of year 6 on the primary school, which of course as a matter of fact was correct. It might be the case that it would be preferable to know his secondary school, but part of that delay was caused by the mother's reticence to indicate which school he would be at.[24]The Chair questioned what transitional provisions were being made. Ms Stone interjected to say that transitional arrangements were in place, but they could not be carried out until a school was found.[25]The Chair then had a brief discussion with panel members. They said they wanted to hear what the provision would be at the secondary school and wondered why no representative from the secondary school was present, and said that it was lovely to see Ms Stone, but it was not helpful to them.[26]There was an interjection by the education authority that Ms Stone can give evidence on current needs provision. The Chair said they had moved on from that, given the dates.[27]The Chair and the panel members then had a brief discussion as to whether to think about the case. They said, "Shall we take a break?" and the Chair said they would. The Panel then left the room.[28]While this was going on, the education authority team returned to a private area to discuss what evidence should be given to the Tribunal in terms of emphasising that Ms Crispin was confident, given L's abilities and needs, that his needs could be met in any of Islington's secondary schools, such that the question is of little relevance any way. The break lasted about five minutes.[29]The parties were called back to sit down. The Chair said as follows:
"We are going to take an unusual step. We have reached a decision."
The Chair then set out the details of the judgment they had reached. This was that there should be a statement. They were concerned about the Central Foundation provisions. They were concerned about the need for a test. L had been disadvantaged by that. They said he needed adequate and appropriate provision. The note in lieu, whether accurate, was not enough to protect him:
"Today's date, it is 23 May and we are coming up to half term. Where are the provisions for [L]? The placement of him needs to be carefully considered. In making the statement, you will need to consider how far he is going to be sent to school and how far he is going to travel. We are giving you this judgement orally to save time. The schools break up on 18 July. You need to find a school and do a transition plan. ... if you'd waited for the written judgement, you'd be into June, and then getting started on a statement.... '[L] is the centre of attention today. This is about L.'"
Ms O, who had become somewhat emotional on hearing the judgment, said "thank you" and the left panel member told Ms O she hoped L would get a school now and that things would work out:
"That was the end of the Tribunal's judgement on the matter and we were invited/started to leave the hearing room."
[30]I should only add that it is worth observing that in the written statements which have been put before the Tribunal, on behalf of the education authority it had been submitted that the view of the primary school was that L's needs could be met through a graduated response and intervention at School Action Plus. The school's view was that L will continue to require support when he transfers to secondary school.[31]At page 60 the case statement contended that the education authority's view that was L's needs could be met at Canonbury School and at a mainstream secondary school in September 2008 through support provided at School Action Plus, with advice and input from outside support agencies as appropriate as outlined in the note in lieu. That was also the view of his school.[32]Later on it quoted the Code of Practice in chapter 5, saying that some children will require less rather than more help if the interventions work successfully. They are the means of matching special educational needs provision to the child's needs, and are part of the continuous cycle of planning, action and review within the school. All that, of course, was in the context of a non-statement situation. The education authority contended that it was confident that Canonbury School currently, and a mainstream secondary school in September 2008, would make such provision for L.[33]It was therefore apparent from that written statement that the education authority had taken on board, as of course it had to, the question of provision at local mainstream schools in the area and was not seeking to confine itself simply to a report about the provision being made at the existing primary school and no doubt that it was prepared, as may be appropriate, to expand upon that at the hearing.[34]That that is the case is borne out by the evidence in a second witness statement provided by Ms Crispin, which deals with number of matters. But it is convenient for me at this stage simply to refer to the appropriate extracts now.[35]As indicated in counsel's note, Ms Crispin says in her second statement that it was not right that she gave no answer to the Tribunal's questions about making adjustments for L in respect of testing at Central Foundation Boys' School. She said it was something that could be looked into as necessary.[36]Secondly, she says and recalls that it was not said that the issue of secondary school was not relevant. It was not the legal test that the Tribunal had to apply, she recalls Ms White as having said.[37]Importantly, in paragraph 9 of her second statement, Ms Crispin says that neither Ms Stone nor she accepted in the hearing that a secondary school would not be able to provide the same amount of support that L had been getting at the primary school. That was precisely the issue, she says, they were expecting the Tribunal to go on and raise but it was never addressed.[38]During the second break, and while waiting for the Tribunal to call them back in, Ms Crispin says that she stated to her barrister that she wished to give evidence to the Tribunal to the effect that she was content that L's needs could be met at any of the mainstream secondary schools in his local area. She based this on her detailed conference with Ms Stone, her observations on reading the SENDIST bundle and her own experience of the schools in question. She therefore felt confident that she could allay the Tribunal's initial concern on this point. However, she was never given the opportunity to put this evidence before the Tribunal.[39]In paragraph 12 Ms Crispin refers to L's educational needs, and in particular an assertion which had been made by Ms O that L was making no progress at school. That was a crucial area of dispute which the council intended to explain at the hearing. Alongside Ms Crispin, Ms Stone had attended the hearing in order to give evidence on behalf of the council. Ms Stone, as the deputy head teacher, had run the nurture group which Ms O had referred to in her witness statement. Ms Stone had daily and involved contact with L during his time at the school and was the person best placed to given an expert professional view of his current needs and abilities.[40]The reason why Ms Stone has not herself provided a witness statement for the purpose of this appeal to me is simply because she has retired.[41]In the conferences that Ms Crispin had had with Ms Stone, the latter had informed her and the council's barrister that L had made progress in the nurture group, it being evidenced by recent tests she had given him. Ms Stone emphasised that it would be important for the Tribunal to hear the evidence on his progress from her, as it had been particularly marked recently and would not therefore be reflected in the historical medical records. Ms Stone said that she had discussed with Ms O that she would give evidence on behalf of the council to explain L's current standard of work and Ms O's concerns that L had not the most severe needs of the children in the nurture group, where there was 11 children.[42]She refers in paragraph 14 of her second witness statement to an extremely poor attendance at school, which she attributed at least in part to the below average standard of work. She made reference to records.[43]The Tribunal did not hear any evidence from Ms Crispin on, for example, that particular matter and what the true explanation for non-attendance may be or whether it had more than one explanation, because of course the local education authority were deprived of the opportunity of calling her as a witness.[44]Paragraphs 16 and 17 of Ms Crispin's witness statement deal with the prospects for L going into secondary schools, and makes the point that in fact he was offered a placement at Highbury Grove School, which did have a vacancy, and was in line with the Tribunal's observation that the school should be in reasonable proximity to his home. That was declined. He was offered two other placements, although both were more than 3,000 metres from his home. Because the statement was ordered and a different regime applies, the situation, as I have indicated, at Highbury Grove is in limbo, although the suggestion to me is that such a place would in fact still be available.[45]On any sensible reading of at least the oral decision, the very clear impression that one has is that the Tribunal had become very preoccupied with the fact that the precise school that L was going to go to this September had not yet been determined. In my judgment, on any fair reading of the proceedings, the Tribunal apprehended the situation as being in effect a crisis; that this child should have a school and that the Tribunal should do whatever it could to ensure that that child had a particular school to go to and that that destination should be procured for it as soon as possible. For the reasons which I shall explain in a little more detail hereafter, I take the view that this sense of crisis rather obscured the true nature of the exercise which was in fact before the Tribunal.[46]At page 222 of the bundle is the written decision of the Tribunal. It is necessary to refer to some parts of it in a little detail. It begins by reciting facts. The facts in the first two paragraphs concern reports of clinical psychologists, one from an assessment in June 2006 and then a further report in 2007 dealing with learning difficulties, dyslexia and migraine. An educational psychologist, Miss Siddique, produced a report in November 2007 as to what L's position was there and the fact that he was undoubtedly behind in terms of, for example, his reading and numeracy ages.[47]Paragraph 3 of the facts then recites the fact, as I have stated, that the note in lieu was produced in December 2007, that L was in his final term at the primary school and will transfer to secondary education in 2008. L presently receives nurture group for five mornings a week and two half an hour sessions literary support a week, and social schools and communicational schools for an hour a week.[48]They then referred in paragraphs 4, 5 and 6 to the evidence that had been taken from Ms O about L's physical condition, and in paragraph 5 about Ms O's opinion that she did not think that the note in lieu made adequate provision. Of course, because the education authority was not permitted to advance its own evidence on this matter, there was no evidence of an oral kind from either Ms Crispin or Ms Stone about that particular matter.[49]There was then a reference in paragraph 6 to the application to the Central Foundation Boys School and what had happened about his inability to take the test. It does, however, record in paragraph 7 that if L had obtained a band 3 level for the Central Foundation School, he would be at the top of the waiting list. That is all that was said about that matter.[50]The Tribunal then recorded that Ms Crispin said that there was still a pending appeal at Mary Mags. The Tribunal said there was no evidence the local education authority could offer as to specific provision available for L at a specified school.[51]The Tribunal then went on to what it calls its conclusions with reasons. It says this:
"Our conclusions are: A. We were concerned, and expressed that concern at the hearing, that [L] had been expected to sit two tests at the Central Foundation School despite the fact that the LEA are well aware of his levels of anxiety and his propensity to migraines. Given that [L] had recently had a full assessment his abilities were well rehearsed should anyone take the trouble to read the reports or the Note in Lieu."
That of course is true so far as testing of his abilities were concerned as at December 2007. In so far as an assessment was required of his present needs and progress in relation to them as at March or May 2008, of course, those were reports were unable to assist.[52]In paragraph B the Tribunal said that:
"B. We accepted that a Note in Lieu of a statement could as a generality provide adequate and appropriate support for a pupil with special educational needs. It may well be that at Canonbury Primary School with its Nurture Group the Note in Lieu provides adequate support for [L]. It may be that it could have provided adequate support at secondary level if the LEA had been able to provide evidence of secondary placement and ensured that a witness from that secondary school had attended the tribunal to give evidence as to the provision available and transition arrangements. In the absence of any information about [L's] secondary placement, transition arrangements and the provision available at the school we could not be satisfied that [L's] needs would be met without the protection of a statement. C. We expressed our concern that only half a term from the end of his primary education [L] did not know what school he would be attending, what provision would be made and that no Transition Plan was in place. In our view this confusion and tardiness could only add to his levels of anxiety. We could not make a reasoned decision that the Note in Lieu was appropriate in the absence of specific information about placement, provision and transition."
I interpose this somewhat obvious comment, that if the Tribunal could not make a reasoned decision that the note in lieu was appropriate, neither could it make a reasoned decision that it was inappropriate.[53]In paragraph D the Tribunal concluded:
"In view of the particular circumstances of this case and the short period of time before the end of the summer term we took the exceptional step of giving a verbal decision to the parties at the end of the hearing. We informed them that we would order the LEA to make a statement, to ensure that an appropriate school within reasonable proximity to his home was named and to set out the appropriate support in order that he might access education whilst in attendance at school. We expressed the hope this would be undertaken without delay."
[54]It will be obvious from a reading of that written decision that it make no reference at all to the statutory test in section 324, nor does it make a reference to the guiding principle contained in paragraph 8:2 of the Code of Practice, nor indeed to any other part of the Code of Practice.[55]The thrust of the reasoning for the decision appears to me to be that in the absence of concrete information as to the particular school to which L would be going, the default position must be that a statement should be ordered. As I hope will become clear hereafter, I can see no possible legal basis for this reasoning, however well-meaning and well-intentioned it undoubtedly was.[56]The present position, as I have indicated, is that there seems to be still the prospect that L can go to Highbury Grove School, although that has not yet been confirmed because there is a statement which was in the course of being made. However, the statement has not been made and no further action on it will be taken if I were to conclude that the Tribunal's decision here should be quashed.[57]Against that background I turn to the grounds of appeal. The first ground of appeal is that the Tribunal made an error of law. That is simply that it failed to address itself to the correct legal test, the particular legal test being in my judgment, first of all, two matters; that is section 324 of the Act, which puts the burden on the council, but then here the Tribunal, of having to conclude that in the light of an assessment of the educational needs of the child, it is necessary for the local authority to make a statement. Nothing less than necessity will do. It is, as both counsel have accepted, at one end of the spectrum of graduated responses to particular educational needs.[58]The second aspect of the legal test is paragraph 8:2 (referred to above), that the decision will be made when the conclusion is that the special educational provision necessary to meet the child's needs cannot reasonably be provided within the resources normally available to mainstream schools in the area. As indicated above, that assessment requires an examination of the learning difficulties, the child's present needs, the child's prospects in relation to those needs and any progress that is made, as well as looking at the current provision which is being made, because that will give a good indication as to whether those needs are being met, but in addition the provision that is likely to be made available to local mainstream schools in the area.[59]I agree that in undertaking that exercise, particularly as at May 2008, the Tribunal would have to have regard to something more than the particular provision which was being made available at the primary school then being attended by the child. That is for the perfectly obvious reason that the child was shortly to leave that school. There would therefore have to be some regard paid to what sort of provision was likely to be available to local mainstream schools. It would not necessarily require the identification of the particular mainstream school that the child was going to go to, but it would certainly require an analysis of the kind of provision of the mainstream schools, at one of which he was likely to end up. That of course is reflected in the written case statement produced by the education authority.[60]The difficulty with the Tribunal's approach, in my judgment, is that it focused far too intensely on the particular question of resolving the issue as to which particular secondary school the child could go to, and that on merely a few questions taking the view that that question could not be readily and immediately answered, there was no point in attempting to conduct the overall test for a statement which I have already enunciated.[61]The result of that approach was that the Tribunal either did not approach the underlying test at all or, if it did, it did not do so with the degree of thoroughness that could reasonably be expected from a tribunal of this kind. The fact that the underlying tests were not addressed in the minds of the Tribunal is wholly apparent from the written decision, to which I have referred.[62]The obvious common-sense reaction to what appears to have been the dilemma facing the Tribunal, as it saw it, was that if the Tribunal felt that the particular school needed to be sorted out there and then or it needed a firmer steer than might have been available to it immediately, the obvious course was either to adjourn the hearing or to ask the representatives from the education authority to make a few telephone calls. I am told by Ms White, although she of course is not giving evidence, that that sort of informal enquiry in a situation of this kind is by no means uncommon.[63]Because the Tribunal took the view that nothing further useful could be done and the default position was therefore to order the statement, neither Ms Crispin nor Ms Stone were able to give the further evidence which they say they would have been able to give about the provision available in mainstream schools. It is not possible for me, on an appeal of this kind, to say that such evidence would have been wrong or would have been of no assistance to the Tribunal.[64]Ms Luh, in the course of her submissions to me, said that in one sense the whole question of the test was rather less important because there was so much common ground between the parties. In my judgment that was too simplistic an analysis. Some or all of the underlying learning difficulties may not have been in dispute, but what particular needs they gave rise to at a particular time and what degree of progress L had made between December 2007 and the date of hearing are, in my judgment, entirely different matters. From the evidence which has been placed before me, it seems to me to have been highly likely that there would have been a dispute, which the Tribunal would have to resolve, about such matters: broadly speaking, the mother saying that the child's needs were more extensive than the authority was prepared to recognise and were not being properly addressed at the moment and could not be properly addressed without a statement; whereas the authority would be submitting the opposite.[65]It seems very unlikely to me that light on these matters could not have been shed by Ms Stone, who was after all, as I have indicated, the deputy head of L's school and who had personally been involved in the nurturing sessions.[66]To give another example of how one has to be cautious before saying there were no disputes of fact between the parties, it is said that the fact of non-attendance was obviously to be explained by the question of migraine. That is a view which the Tribunal apparently took in its written decision, but it did not ask Ms Stone to give evidence on the matter to see what her take on it was. It seems to me that it is very difficult for a tribunal to have come to that decision without doing the usual thing, which is to hear the evidence. A similar question rises in relation to dyslexia. It is one thing for there to be common ground that there is some degree of dyslexia. Precisely how severe it is and precisely what it requires may be very different matters, and are the sort of things which might have to be debated in a tribunal because the intensity or otherwise of that condition will dictate what particular educational provision is required.[67]So it is certainly no answer for it to be said that if these matters had been gone into, the Tribunal, for example, could not possibly have come to a different decision or that the evidence of Ms Crispin or Ms Stone could not assist.[68]The subsidiary point made by Ms Luh in this regard is that the Tribunal was entitled to take the course it did so far as the appropriate test to be considered, because the local authority had, as it were, set its face against any discussion about the provision that was likely to be made available at mainstream schools in the area. I think that that is putting the matter far too high. I have read the limited exchanges that took place between the Tribunal and Ms Crispin before the break after which the decision was given. In my judgment, the fact of the matter was that the surface of the question of secondary school placement had barely been scratched, and the issue of what the provision was going to be at any mainstream school in the area that the child was likely to attend had simply not been reached at all. I do not accept the submission that the education authority had taken a position that it was simply unwilling to do anything other than discuss the immediate position in relation to the local primary school. Certainly, if there was anything of that kind the obvious course for the Tribunal to take, before taking the draconian step without notice of giving its decision, was to say that it required a further exploration of this issue and to suggest what steps could be taken to have that issue properly ventilated before it.[69]The conclusion must be, therefore, that ground 1 of the notice of appeal succeeds. The Tribunal, in so far as it applied any test at all, certainly did not apply the test laid down in the statute or in paragraph 8:2.[70]So far as ground 2 is concerned, this deals essentially with the question of procedural fairness. The allegation is that the education authority had not been given a fair hearing.[71]In my judgment, the entire process before this Tribunal was manifestly unfair. A few questions were asked about secondary schools. The Tribunal then said simply that it wished to have a break, but instead came back and gave an immediate decision. Ms Luh suggested somewhat faintly that even at that stage it might have been open to the education authority to ask the Tribunal to reverse the decision that had just been given and allow for a rather more detailed and lengthy examination of the matter. That is not only speculative, in my judgment, but I think highly unlikely. The Tribunal, it seems to me, had made its mind up and nothing was going to change it at that particular point. But in any event, that is not an argument which can assist Ms Luh in relation to procedural unfairness.[72]It is common ground that no witnesses were called upon from the education authority. It is also clear that the local education authority was not asked and invited to give any submissions, either on the matters that had been discussed in any detail or to give submissions in relation to the written materials. In this regard, there was a clear breach of paragraph 34 of the Regulations. I have already read out that paragraph. It is in absolute terms:
"... the parties shall be entitled to give evidence, to call witnesses, to question any witness and to address the tribunal both on the evidence, including the written evidence submitted before the hearing, and generally on the subject matter of the appeal ..."
The local education authority was denied that entitlement.[73]That entitlement is not in any way qualified by paragraph 32, which deals with procedure at the hearing. The fact that the Tribunal may conduct the hearing in such a manner as it considers to be the most suitable for the clarification of the issues and the just handling of the proceedings and to avoid formality in no way qualifies the entitlement to give evidence in paragraph 34. The two provisions here are entirely consistent with each other. I do note that paragraph 32(3) says that:
"The tribunal shall determine the order in which the parties are heard and the issues determined."
This Tribunal neither set out the issues which required to be determined, nor the order in which the parties should be heard, no doubt because of the early decision which they had reached in the crisis situation which they perceived to exist.[74]Again, Ms Luh submitted that on the facts of this particular case that argument as to procedural unfairness may be somewhat unrealistic because what after all, she says rhetorically, could have been gained by having statements from witnesses when the essential underlying facts were agreed? As I have indicated, I do not accept for one moment that all the relevant facts in relation to the issue before the Tribunal were agreed.[75]I therefore find that ground 2 is also clearly made out on this appeal.[76]Ground 3 and ground 4 deal with the failing to take into account of relevant material factors and then failing to give reasons. Clearly ground 3 succeeds if grounds 1 and 2 succeed, because if the wrong test has been applied then the wrong factors were taken into account and, in addition, material was not taken into account because the witnesses were not permitted to give evidence.[77]It is worth saying, however, a little more about the reasoning employed by the Tribunal. It is not right to say that no reasons were given at all. The problem, however, is that the reasons did not relate to the underlying test. One can see that if one looks at paragraph C of the written decision. Together with paragraph D, that makes clear that the view of the Tribunal was that they would order the statement because it was a default position. Moreover, they would order it because it would give protection to the child.[78]I have some difficulty in understanding the concept of protection here. If by that was meant that the statement of special educational needs would commit the local authority to providing a level of special educational provision, then of course that is followed. But it seems to me that what the Tribunal had in mind was to enable this child to go away with something definite, which would enable him to obtain a secondary school placement as quickly as possible. However laudable that aim may have been, it simply bears no relation to the relevant tests. So although reasons were given, they were not legitimate reasons.[79]Regrettably, because of the Tribunal's anxiety in this regard, I take the view that it relinquished or abandoned the necessary process for a fair hearing.[80]Ms Luh in her submissions reminded me that of course when one examines the reasoning of a tribunal, one has to pay due deference to the fact that it is a lay tribunal and that in particular areas it has its own expertise. That of course I understand. However, on the facts of this case, according to the Tribunal all the deference that I can, it in no way can avoid the conclusion that its decision simply cannot stand. I was referred in particular to the case of R (L) v London Borough of Waltham Forest [2004] ELR 161, a decision of Beatson J. At page 166 he said this:
"14. Reasons must, first, deal with the substantial points that have been raised so that the parties can understand why a decision has been reached."
No one can quarrel with that. It does not particularly assist Ms Luh here. He then said that:
"... the aggrieved party should be able to identify the basis of the decision."
Certainly the aggrieved party here can identify what the reasons were that the Tribunal gave, but, as I say, because of the other defects that does not take Ms Luh very far. She says that a Tribunal if it rejects expert evidence should say so specifically, but of course the Tribunal was not dealing with that aspect of the matter.[81]Fourthly and importantly for present purposes, Beatson J said this:
"... where the 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."
[82]That is precisely what the Tribunal did not do here. At no stage did it say, before making its decision, that it was thinking of taking the somewhat radical step of making an immediate decision for a statement because it was concerned about what it regarded as the paucity of evidence in relation to a named school. No opportunity was given to the education authority to consider that particular thinking or indeed to challenge it. So that particular aspect of paragraph 14, far from assisting Ms Luh, probably renders her case more difficult.[83]For all those reasons, I consider that all four grounds of the appeal have been made out. The result of that is that I am going to quash the decision made by the Tribunal on 27th May ordering the local education authority in Islington to make a statement. That statement process therefore falls away.[84]That of course is not an end of the matter because it means that Ms O's appeal is still to be heard. I order that that appeal should be heard by a differently constituted tribunal. If there is anything that needs to be said about the timing of that, then I will hear counsel on it in a moment.[85]I should indicate that it seems to me that not only is the judgment which I have given correct for the reasons which I have indicated, but it is timely and helpful because the result of this is that, assuming that L goes to Highbury Grove School, by the time that a tribunal is heard after the relevant arrangements are made, which will presumably include up-to-date reports, the Tribunal will have a ready focus for its consideration. It will be able to hear how L has got on at his new mainstream school. It will know what is being provided for him currently at that school and what can be provided for him at that school. Having regard to all of those matters, the Tribunal will then be in a position to know whether the education authority should be required or not required to take the further step of making a statement. I say "mainstream school" because, as Ms Luh frankly concedes, the likelihood of it being thought that a special school is required for L is remote indeed.[86]It remains for me to thank both counsel for the excellence of their submissions. I think that I should add, for the benefit of Ms O, that Ms Luh could not have put her case or the case for L any more persuasively or comprehensively than she has done.[87]So that is my judgment.[88]Now, Ms White.[89]MS WHITE: Yes, my Lord, just a costs application, if I may please.

JUDGE WAKSMAN: Yes.

[91]MS WHITE: I would be grateful if you make a costs order against the parents, whom I am assuming are legally aided, in which case the current practice, as I understand it, is to divide it between an order for costs with no mention of enforcement and costs not to be enforced without permission of the court.

JUDGE WAKSMAN:

[92]Sorry, you make an order of costs, but then you say "enforcement not to by allowed" --[93]MS WHITE: Yes, I understand that Ms O is legally aided and so it would be an order for costs not to be enforced without permission of the court.

JUDGE WAKSMAN:

[94]Yes. Let me hear Ms Luh on that.[95]MS LUH: My Lord, there are two respondents here, and so in that respect we ask for costs to be shared. SENDIST is entitled to choose not to be represented, but we should not therefore bear the burden of representing both respondents.

JUDGE WAKSMAN: I follow that.

[97]MS LUH: For that to be considered. The second thing is we ask for costs in any event to be reduced for the fact of the procedural non-compliance by the local authority in relation to their lodging of the appellant's notice and a lot of the confusion that had been caused up to the point of 21st July before the respondent, SENDIST, was properly served with the notice, with the amended notice, of them being the first respondent and Ms O being the second respondent. The initial notice of appeal was in error in two ways. First, SENDIST was not named as a party and therefore, even though a notice was sent to them, they did not respond, obviously because they are not a party to the proceedings.

JUDGE WAKSMAN: Right.

[99]MS LUH: Secondly, the person named as the respondent was the child, not Ms O, which the Court of Appeal authority of S v SEND is clear to say, and this is well established, that the child cannot be the party and that is not in dispute, and the fact that at all material times this was dealt with by counsel and we ask that these two errors are not errors — they are very basic errors.

JUDGE WAKSMAN:

[100]I accept, subject to Ms White, that they are errors because they have taken steps to put them right, but what costs implications do they actually have? They have not made any difference, have they?[101]MS LUH: In the sense we had asked SENDIST, for example, to obtain the notes of the clerk at the hearing and we had much difficulty. There was not a response to our request by SENDIST because they did not have it on their notice to say that they are one of the respondents. Until last week, TSols, which represented SENDIST, were not informed of the request and therefore any consideration of a confirmation of what was and what was not said and what was on the mind in the notes of the Chairman and the panel members is not available to us in respect of this hearing.

JUDGE WAKSMAN:

[102]In fact it has not made any difference, has it? You have not referred to the Chairman's notes and Ms White has not referred to the Chairman's notes.[103]MS LUH: No, because we do not have the notes.

JUDGE WAKSMAN: You still do not have them?

[105]MS LUH: We do not have the notes.[106]MS WHITE: No, we do not have the notes of the Tribunal's hearing.

JUDGE WAKSMAN: How does that affect the costs, if you do not have them?

[108]MS LUH: My Lord, there are disputes as to exactly what was and what was not said at the hearing. That was not in issue in terms of the legal tests and in terms of natural justice, but there are disputes that are rooted in that and the difficulty is that we could not proceed with this hearing without knowing whether or not the stay had been decided, knowing whether or not expedition was granted and whether or not SENDIST was going to be involved, and there was delay in terms of preparation of this case and we ask in that context for costs to be reduced.

JUDGE WAKSMAN:

[109]I see. Thank you very much.[110]Yes, Ms White.[111]MS WHITE: It is not relevant to the legal tests and I do not see how costs flow from it.[112]In terms of it causing a delay to the proceedings, I would be interested in more details on that. As far as I am aware, the timetable was not affected at all. The matter was listed for today. It has always been listed for today, since it has been listed, and it has gone ahead today. So I am not sure what --

JUDGE WAKSMAN:

[113]I am afraid I am against you, Ms Luh. It seems to me on what you have told me that it is extremely unlikely that there could have been any material costs impact in relation to the matters you have referred to. If there was any costs impact it would be de minimis, but in the absence of any further information I am not prepared to depart from the usual costs order.[114]MS LUH: But in relation to split costs between SENDIST --

JUDGE WAKSMAN:

[115]But in relation to split costs with SENDIST then that must be right, and I do not think that Ms White is saying otherwise.[116]MS WHITE: No.

JUDGE WAKSMAN:

[117]How will that be phrased then? It will be the claimant's costs against both defendants, will it?[118]MS WHITE: Yes, with the costs against --

JUDGE WAKSMAN:

[119]Any costs in relation to the second defendant not to be enforced without the permission of the court.[120]MS WHITE: Thank you.[121]MS LUH: My Lord, if I could just add in relation to an order for a new hearing before a differently constituted tribunal, I would be grateful if you could include in the order expedition, so it will be heard not any later than the end of September, given that if it were the case that at that point in time SENDIST was minded at that hearing to make a statement that will involve moving schools possibly, it will involve a lot of changes, and that would be prejudicial to L, who everybody accepts is quite vulnerable.

JUDGE WAKSMAN:

[122]There is a balance to be struck, is there not, here, because on the one hand you do not want any reconsideration to take place a long time away for the reasons that you have outlined.[123]MS LUH: Yes.

JUDGE WAKSMAN:

[124]On the other hand, on the assumption, let us just say for the moment that he goes to Highbury Grove, he needs to be at Highbury Grove, I would have thought, sufficiently long for some meaningful assessment to take place as to how he is getting on there and how he is responding to whatever provision there has been made for him there.[125]MS LUH: Might I suggest, then, to have the hearing listed not any later than after the first week of half-term, because it gives you two months. The problem with not ordering any kind of expedition is that with SENDIST it can take up to a year. I have cases that are stuck in the process. So half-term gives you two months to put in place everything suggested by the note in lieu and I think by then there should be some clear idea of this child.

JUDGE WAKSMAN: What do you say about that, Ms White?

[127]MS WHITE: My only concern is that your Lordship quite properly mentioned that there will be a need for further evidence to be put in. So, in other words, for new professional evidence to be put in in relation to how he is getting on. I do not know, because I have not gone through it, it is quite an unusual process we are going through, how that pans out with the SENDIST. Subject to there to being no dispute as to new written evidence going on of how he is getting on --

JUDGE WAKSMAN: You both probably want to do that.

[129]MS LUH: We both will have to, and under Regulation 33 of the SENDIST Tribunal it allows for consideration of late evidence and admissibility of late evidence, because usually there is a very long statementing process. Obviously where it is expedited the Tribunal takes into account the reasons for the late evidence and in this case it would be very sensible for both parties, subject to any objection from both parties in relation to the report, for — if there could be an indication, you have rightly observed, my Lord, the late evidence will come from both parties.

JUDGE WAKSMAN:

[130]I think what I will say is and I think — but I am not sure how far I can go as to giving directions in relation to the conduct in the Tribunal in any event. What I think what I would be minded to say, subject to any drafting points that you would wish to make, is that the reconsideration should take place as soon as possible after the end of half-term this term, assuming that it has been possible to prepare the necessary reports.[131]MS WHITE: I would be grateful for an order of that nature.

JUDGE WAKSMAN:

[132]And in that connection that both parties should obtain fresh reports as soon as possible, by which I do not mean before school has started, but I mean that you need to get on with it. I am not sure I can say very much more than that, but I hope that will be an indication. I can certainly make this observation, which you can — this is not part of the order, but you can certainly note it, that it is my hope and expectation that the Tribunal will be able to hear this matter once the necessary further evidence has been obtained, so as to minimise the disruption to L if it turns out that a statement is going to be made which may involve him moving schools. I am not sure I can say more than that.[133]MS LUH: No. My Lord, you just previously mentioned that both parties should consider obtaining fresh reports.

JUDGE WAKSMAN: Yes, or fresh evidence.

[135]MS LUH: My only observations for that is that in terms of educational psychologist's report and any specialist reports because we are legally aided and in the SENDIST Tribunal we only get legal help and not a full certificate, and therefore in that context all we have is to rely on --[136]MS WHITE: I would draw no inference against Ms Luh for not having documents.

JUDGE WAKSMAN:

[137]That is the thrust of what I am intending, and I am happy for you to adjust it by agreement as you see fit. But I hope that may be a sufficient indication to the Tribunal.[138]MS WHITE: Thank you, my Lord.[139]MS LUH: I am grateful, my Lord.

JUDGE WAKSMAN:

[140]I am extremely indebted to both of you. Feel free to go because I have another matter to deal with and I am not going to rise.

Cited in 7 later judgments