N, R (on the application of) v North Tyneside Borough Council [2009] EWHC 1585 (Admin)

[2009] EWHC 1585 (Admin)Case No CO/12233/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Venue Royal Courts of JusticeDate Wednesday, 10th June 2009
Strand
London WC2A 2LL
B e f o r e:
HIS HONOUR JUDGE MACKIE QC
Between
THE QUEEN ON THE APPLICATION OF NClaimantv
Between
NORTH TYNESIDE BOROUGH COUNCILDefendant
Computer-Aided Transcript of the Stenograph Notes ofWordWave International LimitedA Merrill Communications Company265 Fleet Street London EC4A 2DYTel No: 020 7404 1400 Fax No: 020 7831 8838(Official Shorthand Writers to the Court)
Ms A McColgan (instructed by Levenes Solicitors) appeared for ClaimantMr SP Rowbottom (instructed by North Tyneside Borough Council) appeared for Defendant
J U D G M E N T

JUDGE MACKIE:

[1]This is an application for judicial review brought by Mr N, the father and litigation friend of N, the claimant, against North Tyneside Borough Council, the defendant. The claimant challenges what she says is the ongoing failure of the defendant to provide her with the provision regarding group therapy sessions relating to speech and language therapy set out in the Statement of Needs.[2]This application was lodged on 18th December 2008 and His Honour Judge Pelling gave permission on the papers on 25th February 2009.[3]I am going to give judgment on the spot, and do it right now, in order, given today's transport difficulties, to assist the parties.[4]The claimant is 11 years old and since 22nd November 2001 has had a Statement of SEN provided by the defendant as a consequence of her special educational needs arising from Down's syndrome and autistic spectrum disorder. The current version of the Statement is dated 2nd September 2008. It has gone through a number of versions.[5]The Statement provides that the claimant should receive provision, amongst other things, in relation to speech and language therapy. There are three aspects of this:
"• Provision of a speech, language and communication programme for parents and school staff to improve [N]'s speech, language andcommunication skills. This programme is to be planned in liaison between the speech and language therapist and teaching staff and to be delivered daily throughout the school day by school staff. • Access to periods of speech and language therapy as well asprogrammes to develop speech and language as advised by Speech and Language Therapy Department..."
As regards those first two limbs, it is accepted that that is provided. Then the third limb is:
"• Over the period of 1 month [N] will receive a minimum of 1 hour'sspeech and language therapy intervention. This will include some time directly working one-to-one with [N] and some in-class time to model appropriate ways of working to reinforce her communication skills... In addition [and these are the crucial words for the case], [N] will continue to be included in blocks of group therapy sessions for 6 weeks at a time subject, as previously, to continuing review should a change in clinical need be identified..."
Although there is not a full stop at that point, the sense of the language is that there should be, because the following words are:
"... this will take immediate effect."
[6]While those are the aspects of the Statement relied upon by the claimant, it is important to see this statement in its context. The current version is headed "Special education provision", in which, at part 3(a), are set out 11 objectives in line with the needs identified for the claimant.[7]In relation to speech and language therapy, which as I say is only one of eleven of these objectives, they include: to develop her communication skills; to develop expressive and receptive language; to develop her play skills with peers; and to develop her social skills with adults and peers.[8]Part 3(b) of the current version of the Statement is headed "Educational provision to meet needs and objectives" and lists 35 tasks, activities and actions to be arranged by the defendant in accordance with its duties under section 324(5)(a)(i) of the Education Act 1996.[9]In relation to speech and language therapy, the Statement of Special Educational Needs provides that the defendant should make no less than 16 of what are described as "arrangements" in accordance with section 324(5)(a) of the Act. It is not necessary for me to list those out.[10]I next turn to the sequence of events which has led the parties to this court. Back in May 2007 the Special Educational Needs and Disability Tribunal made an order. It is not necessary for me to set out the entire decision, because its substance is not in issue in the case, but I will just mention the passages relied upon by each party so that it is clear that I have considered it.[11]At paragraph 3 the Tribunal record:
"At the moment she is between therapy blocks but school staff are carrying out language programmes in the classroom."
Then, turning to the conclusions:
"Our conclusions are: A. [N]'s parents would like her statement to specify one-to-one speech and language therapyfor an hour either each week or each fortnight. We are not persuaded that [N] would be able to derive significant benefit from such long periods of intensive input, and accept the LEA's submission thatthe emphasis should be on generalising skills across the curriculum, with the therapist providing some one-to-one support but also spending time in modelling appropriate ways of reinforcing skills within the classroom. We consider, however, that the statement provision proposed by the LEA in the Working Document should be additional to the baseline block sessions for which she is regularly referred."
That then led into a statement in the June 2007 version of the Statement, in terms:
"In addition, [N] will continue to be included inblocks of group therapy sessions for 6 weeks at a time subject, as previously, to continuing review."
[12]On 29th April 2008 Mrs Barron of North Tyneside wrote to the claimant's father and reported, following a meeting on the previous day at which the parents had expressed their concerns about N's speech and language therapy input.[13]Two relevant paragraphs in that letter are as follows:
"We discussed the following: That [N]'s statement says that she should have access to group sessions of speech and language therapy and that as far as you [are] aware, she has not received these for over a year. We discussed that for group sessions to be run, there needs to be a group of children who all require work on the same speech, language and communication areas, and that a lack of children requiring input on the same areas is why [N] has not received these."
That is the starting point for a claim that N's absence of group therapy has its origins, and unlawfully so, in resources and practical arrangements. The next paragraph, however, reads as follows:
"You expressed concerns thatreports and comments and speech and language therapy mention progress made but that you feel that [N]'s progress is actually very slow. We discussed the difference between the two stages of understanding: one word in a sentence and two. In typically developing children this can take at least a year to learn. [N] experiences difficulty learning, so these steps will take her a number of years. I discussed setting targets which were smaller so that rate of progress would be easier to see."
[14]The letter then goes on to deal, with commendable clarity, with a series of other practical aspects of the educational needs of N.[15]There was a meeting between the parents, the head teacher of Beacon Hill School, which N attends, and various other advisers, six or seven of them, including Mrs Barron, who wrote the letter. The relevant part of the noteof the meeting records Mrs Barron saying:
"... input is based on clinical need — people around the table tried to explain rechanging need. [N]'s needs the opportunity to generalise skills learnt. Helen Jones reassured parent that [the] differences were not due to cost."
[16]There was a second proposed amendment to the statement on 10th June 2008. On 17th June Mr N wrote to the statutory assessment and review service, informing them that he did not accept the second proposed amended statement, as "theoccupational therapy provision has now been removed. I feel the statement does not provide adequate provisions for her ASD condition. Speech and language provision is incorrect. The 6-week blocks are not to change with immediate effectshould a need be identified, but the entire provision to be changed should a need be identified." Then he goes on to make other submissions and asks for a reply to enable him to appeal to the Special Educational Needs Tribunal. That reply wasforthcoming, Mr N did appeal to the Special Educational Needs Tribunal and I am told that the matter is to be heard next week. There was a similar letter on 11th August. That led in time to the Statement, which is the subject of this application for judicial review.[17]On 21st November 2008 the solicitors for the claimant wrote to the defendant expressing concern about a number of things. First, they contended that to Mr N's knowledge N has not had any blocks of group therapy (which, given the paragraph in which those words appear, clearly refers to speech and language therapy) since 2007. In addition, he has seen noevidence that the Astronaut programme has been followed since the beginning of the current term. Previously, daily reports on that programme were sent home to him; since the beginning of this term he has had no reports at all. Finally, he is not aware of N having access to small class groups in a low arousal environment.[18]Under "Details of the action that the defendant is expected to take" the solicitors said:
"In the circumstances, please confirm that the LEA will immediately take steps to ensure that the provision in [N]'s statement is made, and provide details of how the provision will be made andwhen the input will commence."
[19]On 5th December 2008 the Council replied at length. I mention only two passages, one at the start of the letter:
"In our response, I feel that it is important to advise you that over a significant period of time there have been regular monthly meetings held to discuss any concerns raised by Mr [N]. This was instigated by the school to try to reassure Mr [N] that his concerns about the provision [N] was receiving was appropriate to her needs andreflected the provision indicated in her statement, as there was some concern that he may not have fully understood what was being provided for [N] in school. Some of these meetings have been solely with school, but more routinely there is representation from therapeutic and health services."
Reference is made to the 3rd June meeting:
"At a multi-agency meeting held on 3rd June 2008 a query was raised by Mr [N] on the point raised, and it was explained to him by Sam Barron... that because of the complexities of [N]'s needs, it was necessary to prioritise areas to work on with her and to be flexible around her accessing the therapies outlined. A report dated 15th July restates that blocks of group therapy will be offered if sucha need is identified following individual work with [N]."
[20]It is against that background that the matter comes before the court. Ms McColgan makes helpful submissions on behalf of the claimant. She submits that by its failure to provide the claimant with group therapy sessions as required by the Statement, the defendant is in continuing breach of the non-delegable and absolute duty imposed by section 324. She emphasises, as is not in dispute, that section 34 does not provide any discretion as to the provision of those educational services set out in the Statement of SEN, as was underlined by this court in R v Harrow London Borough Council, ex parte M [1997] ELR 62.[21]In that case Turner J ruled that a district authority's failure to provide to the defendant local education authority the resources that the LEA had requested to be put in place did not absolve the LEA from responsibility for failing to make that provision as it was required to do under section 324.[22]The judge went on to acknowledge the chronic underfunding of public bodies and made a series of observations upon which Ms McColgan relies. She says that it does not matter that the defendant may have decided that the claimant would benefit more from individual than from group therapy, the Statement of SEN is clear that group therapy will be provided and, more precisely, will continue to be provided unless and until continuous review of such therapy should demonstrate a change in clinical need.[23]She also identifies what she describes as an ambiguity in the expression "should a change in clinical need be identified this will take immediate effect". She says that to the extent that this form of words would permit of an interpretation that would allow the defendant unilaterally to withdraw the provision to the claimant of group therapy, it would not comply with the obligation under the Act that the statement "specify the special educational provision to be made for the purpose of meeting those needs".[24]She relies upon the case of E v Rotherham Metropolitan Borough Council [2002] ELR 266, in which the Administrative Court considered a Statement of SEN which contained a provision that anychange in the level of support would require a formal discussion between the LEA, the NHS trust and one or both of the child's parents. This was successfully challenged on the basis that its effect would be to allow the defendant, if it wished, to change the level of speech and language therapy to alter that provision without amending the Statement and thus to avoid the parents' statutory right to make representations and then to appeal. It is submitted that any interpretation of the Statement which would permit the defendant to withdraw the claimant from group therapy would fall foul of the ruling in Rotherham.[25]The submissions of Mr Rowbottom for the defendant are broadly as follows. The defendant has in the past made, and will continue to make, arrangements in accordance with the Act, as one sees from the substantial evidence of meetings, visits and reports by the defendant. The speech and language therapy must be seen in the overall context of the 16 arrangements. The claimant has identified one specific part of one arrangement as a basis for seeking a declaration that the defendant is acting unlawfully.[26]He submits that at no time has the defendant sought to avoid its obligations to the claimant, as set out in the successive statements of special educational needs from 2001 onwards. He submits that it is unreal to consider the wording as to continuing review, except in the context of having to manage and co-ordinate the very large number of different requirements which this child has. He points to some evidence put forward by the claimants themselves in next week's tribunal case to show, he submits, that N's progress has been slow and that may be one of the reasons why group therapy is not being provided at present.[27]In my judgment, notwithstanding the very able submissions of Ms McColgan, this application cannot succeed. The heart of the argument put forward by Ms McColgan involves taking the particular paragraph in isolation and seeing it, absent some further change to the Statement, as being a mandatory obligation to provide group therapy sessions for 6 weeks at a time. It seems to me, reading the Statement as a whole, and having regard to the obligation upon the authority to co-ordinate a large number of different needs, it is not realistic to say that the child should have some mandatory right to group therapy sessions, regardless of all the other considerations relevant to all the other needs which are being addressed. It would eventually produce the absurd result that, even if all these dedicated professional advisers considered the matter would be a disaster, children would have to be rounded up and N put into group therapy, even in circumstances where this was undesirable. The papers show a number of reasons why N's current requirement for group therapy may be counterproductive and not in her best interests, but of course that is not the matter for judicial review.[28]It seems clear from reading the documents as a whole, as opposed to looking at particular passages, that there has been no attempt at all by the authority to subordinate this child's rights to budgetary or practical restraints. Similarly, there has been no attempt to remove or undermine any right of appeal available to Mr N. So although it is common ground that the law is as Ms McColgan submits it to be, neither of those cases have any application to this case.[29]I should also say that even if I were minded to consider, which I am not, that there had been a breach of duty here, I would have hesitated long and hard before making a mandatory order, given the circumstances, where it is common ground that both the local authority and the parents are commendably doing their utmost to bring this child forward, and where yet another hearing is due to come up next week before SENDIST. I know nothing about the appeal before SENDIST. It may be a very good idea and essential for N's rights, but experience suggests that the answer to a child's progress lies outside this courtroom and not within it when one is dealing with parents and local authorities of this high quality.[30]Finally, I recognise that the parents obtained permission to bring this claim forward. Nevertheless, it seems inevitable to me that this claim must fail. Accordingly, I refuse the application.[31]MR ROWBOTTOM: My Lord, can I point out that there is no claim for costs from North Tyneside Council in this matter against the claimant.

JUDGE MACKIE: In any event, I think you have legal aid funding.

[33]MS McCOLGAN: That is correct.

JUDGE MACKIE: I will make no order for costs.

[35]Unless there is anything else arising, I thank you all for your help.