TS, R (on the application of) v Bowen (Chair of Sendist) & Anor [2009] EWHC 5 (Admin)

[2009] EWHC 5 (Admin)Case No CO/6336/2008
IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Venue Royal Courts of Justice, Strand, London, WC2A 2LLDate 14 January 2009
Before
LORD CARLILE OF BERRIEW QCSitting as a Deputy Judge of the High Court
Between
The Queen (on the application of TS)Claimant/Angela Bowen (Chair of SENDIST)Defendants/Solihull Metropolitan Borough CouncilRespondents
Ann Lawrence (instructed by Ecothorp Limited t/a Felix Moss Solicitors) for Claimant/AppellantHolly Stout (instructed by Solihull Metropolitan Borough Council) for Second Defendant/Respondent for The First Defendant/Respondent (instructed by the Treasury Solicitor) was not representedHearing Hearing date: 12 December 2008
JudgmentLord Carlile of Berriew QC :Background
[1]This case turns on the choice of school for an 11 year old boy whose educational provision must take into account his autism.[2]TS was born in April 1997, and therefore is now 11 years old. He is at the age when most children move from primary to secondary education. The choice of secondary school is often a difficult decision, usually made by parents making their selection from the establishments made available in their home area by their local education authority. For some children the decision is more challenging by reason of their special needs. TS has special needs, particularly because he falls well within the spectrum of autism.[3]His needs are acknowledged to be severe and complex, as defined within the statutory guidance given by the Code of Practice on special educational needs, to which all parties must have regard pursuant to Education Act 1996 section 313.[4]TS has been the subject of a Statement of Special Educational Needs [SSEN] since he was 3 years old. It was amended in 2006 and in 2007. The final SSEN was issued by the local authority on the 7th September 2007. It records fully the many areas in which TS is a capable, physically energetic boy. It lists too the particular educational problems that he faces compared with many other children. His parents are devoted to him. The dispute between themselves and the local authority, and consequently the Special Educational Needs and Disability Tribunal [SENDIST], arises from the different conclusions that respectively they have drawn in assessing which aspects of TS’s requirements are truly educational needs, and as a result where his secondary schooling should be provided.[5]The local authority and SENDIST consider appropriate a named day school, accessible from TS’s home where he lives with his parents. His parents wish him to be educated at a specified independent residential school, a much greater distance from home. Both specialise in the education of children with special needs. The annual cost to the local authority of the day school, after adding the provision of speech and language therapy needed by TS, would be between £40,000 and £50,000. The annual cost of the residential school would be about £100,000 more.[6]This is the statutory appeal, brought by his father [who has the same initials] on his behalf, under Tribunals and Inquiries Act 1992 section 11 from the decision of SENDIST dated 23rd June 2008 made pursuant to Education Act 1996 section 326, following an appeal against the contents of Parts 2, 3 and 4 of the SSEN. The SENDIST appeal was completed on the 23rd May 2008, and the Decision dated the 23rd June 2008.

What is a SSEN?

[7]A SSEN must be set out in 6 parts. Part 1 contains the basic identifying details of the child. Part 2 sets out the child’s special educational needs in terms of learning difficulties which call for special educational provision as assessed by the education authority. Part 3 deals with special educational provision: it specifies the objectives which the special educational provision for the child should aim to meet, and the provision which the authority considers appropriate to meet the needs and objectives. Part 4 deals with placement: the authority are required in a case like this, where there is a disagreement as to placement, to specify by name the school they consider appropriate for the child. Part 5 deals with non-educational needs – provision the local authority considers appropriate if the child is properly to benefit from the special educational provision specified in Part 3. Part 6 deals with non-educational provision to be provided by providers other than the local education authority – for example, occupational therapy services to be provided by a NHS trust.[8]The issue of the final statement of the SSEN is not the end of the process before an appeal to SENDIST. Parents are invited to meet and discuss concerns, and are referred to named mediation services should they wish to use them. Annual reviews of all SSENs are obligatory.

The SENDIST decision

[9]The SENDIST Tribunal decided that the day school maintained by the local authority was adequate and appropriate to meet TS’s educational needs. It followed that compliance with the appellant’s preference for TS to attend an independent and highly specialist boarding school on a residential basis at an annual cost to the LA in excess of £143,942 was held incompatible with the avoidance of unreasonable public expenditure. SENDIST therefore confirmed and ordered that the day school be named in Part 4 of TS’s SSEN.[10]The format of the SENDIST decision was a major cause of concern to the appellant. Whereas the local authority’s SSEN followed the correct template described in paragraph 7 above, the Tribunal’s decision did not. In particular, much of the material that was dealt with in part 2 of the SSEN was considered under Part 4 of the Tribunal determination. This is not a helpful course. It would have been far better for the Tribunal to deal with the appeal by adhering to the template, in the absence of any clear reason not to do so. Their not doing so in this case has contributed strongly to the argument that they failed to consider the evidence as to needs (Part 2) under the correct heading, and thus misdirected themselves when considering placement (Part 4). The appellant says that, had the material apparently considered in relation to placement been deliberated in its proper place (needs), then they would have reached a different decision as to placement.[11]I have kept in mind that in R v Kingston-upon-Thomas Council and Hunter[1997] ELR 223 McCullough J emphasized the importance of the SSEN structure, when he said:
“ ... part 4 cannot influence part 3. It is not a matter of fitting part 3 to part 4 but of considering the fitness of part 4 to meet the provision in … part 3." For the same reasons, it is essential that a Special Educational Needs and Disability Tribunal decide these issues in that order.”

The Necessary Law

[12]There was no substantial dispute about the law in this case.[13]Education Act 1996 section 323 deals with the procedure for assessing special educational needs. Section 324 makes provision for Statements. It provides that the SSEN must specify the special educational provision which is necessary to meet the child’s needs, the type of school which the local education authority considers appropriate for the child, and the name of the school which it considers would be appropriate for the child.[14]Education Act 1996section 9 requires the LEA to have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, subject to qualifications which include compatibility and the avoidance of unreasonable public expenditure.[15]The Department for Education and Skills [DFES] Autism Spectrum Disorder Good Practice Guidance (2002) informs local authorities that “Children’s learning needs will not be confined to the hours of 9 – 4 whether children with ASD attend day or residential school .. . Opportunities for personal and social development and the development of life or independence skills will need to be available, even to children with high ability.”[16]The duty of the SENDIST Tribunal to give proper, intelligible and adequate reasons has long been established in case law. In R(on the application of L) v Waltham Forest LBC [2004] ELR 161, it was held that:(i) reasons must cover the substantial points raised so parties could understand why decision was reached:(ii) if SENDIST rejected expert evidence it should state so specifically and in some cases to state why;(iii) mere recitation of evidence is no substitute for giving reasons; and(iv) where SENDIST uses its own expertise to decide an issue it should give parties an opportunity to comment on its thinking and to challenge it.[17]However, in giving its reasons SENDIST is not drafting a formal pleading or contract. Wall LJ in the Court of Appeal in W v The Leeds City Council and Special Educational Needs and Disability Tribunal [2005] ELR 617, dealing with a reasons challenge had been made to the Tribunal's decision, said:
“I do not think it necessary for this Court to add to the already substantial jurisprudence on this topic. Speaking for myself, I have always regarded the judgment of Sir Thomas Bingham MR (as he then was) in this Court in Meek v City of Birmingham District Council [1987] IRLR 250 (even though it substantially antedates the incorporation into English law of the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950) as the definitive exposition of the attitude superior Courts should adopt to reasons given by Tribunals. Whilst, of course, some aspects of the reasoning processes of different specialist tribunals are unique to the particular speciality which is engaged, I see no reason, in this context, to distinguish between Employment Tribunals and what are now Special Educational Needs and Disability Tribunals. Sir Thomas Bingham MR said: ‘It has on a number of occasions been made plain that the decision of an industrial tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of a tribunal's basic factual conclusions and a statement of the reasons which has led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this Court to see whether any question of law arises.’ The Master of the Rolls added: ‘Nothing that I have said is, as I believe, in any way inconsistent with previous authority on this subject. In UCATT v Brain [1981] IRLR 225. Donaldson LJ (as he then was) said at page 227:− ‘Industrial Tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law … their purpose remains what it has always been, which is to tell the party in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which the reasons are given.’ ” ‘It has on a number of occasions been made plain that the decision of an industrial tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of a tribunal's basic factual conclusions and a statement of the reasons which has led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this Court to see whether any question of law arises.’ ‘Nothing that I have said is, as I believe, in any way inconsistent with previous authority on this subject. In UCATT v Brain [1981] IRLR 225. Donaldson LJ (as he then was) said at page 227:− ‘Industrial Tribunals' reasons are not intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law … their purpose remains what it has always been, which is to tell the party in broad terms why they lose or, as the case may be, win. I think it would be a thousand pities if these reasons began to be subjected to a detailed analysis and appeals were to be brought based upon any such analysis. This, to my mind, is to misuse the purpose for which the reasons are given.’ ”
[18]In R (Dermott) v SENDIST & Liverpool City Council [2006] ELR 370 and Rev Jones & Mrs Jones v Norfolk County Council & SENDIST [2006] EWHC 1545 (Admin) the Court reaffirmed the need for SENDIST to consider all the expert evidence called, before reaching its decision. Of course, as an expert tribunal itself, SENDIST is well fitted to decide which expert evidence to accept or reject. In that case Lloyd-Jones J allowed the appeal, in part on the basis that SENDIST had failed to have regard to all the expert evidence and failed to appreciate the full import of its content.[19]In LB Bromley v SENDIST & Others [1999] ELR 260, CA the Court of Appeal held that even where capacity is severely limited the purpose of education can include the development of daily living skills and to maximise control over a child’s own environment. S v Solihull MBC [2007] EWHC 1139 is one of many cases which reflected the education need for children with ASD to generalise or “translate into his home and social and indeed all areas of his life and functioning, the skill which he learns within the school and school room” (para 17) and that the “inability to generalise [skills is an] educational need” (para 19).[20]In R (On the Application of M) v(1) Wiltshire CC(2) SENDIST [2006] EWHC 3337 (Admin) [2007] ELR 171 the court held that SENDIST must consider the educational reasons why a waking day curriculum [see para 29 below] was said to be required before determining placement.[21]It has been held that not all needs identified in Part 2 of a SSEN must be provided for in Part 3. Only those needs considered by the LEA or (in turn) the SENDIST to be educational needs must be provided for in Part 3: see W v Leeds City Council and the Special Educational Needs and Disability Tribunal [2005] EWCA Civ 988, [2005] ELR 617, especially at paragraph 37 per

Judge LJ:

“Consistent with the relevant statutory provision, part 3 of the statement must make provision for the educational needs specified in part 2: no more, no less. Provision is not required to be made in part 3 for matters of background and comment, nor even for needs which in the judgment of the tribunal do not amount to educational needs.”
[22]The courts have considered the weight of parental preference. In Oxfordshire County Council v GB and ors [2001] EWCA Civ 1358, [2002] ELR 8 at [16]:
“In cases like the present, the parental preference for an independent school over an available state school, while perfectly reasonable, may have difficult cost implications for the LEA. In that event it is for the LEA, or on appeal the SENT, to decide whether those cost implications make the expenditure on the independent school unreasonable. This means striking a balance between (a) the educational advantages of the placement preferred by the parents and (b) the extra cost of it to the LEA as against what it will cost the LEA to place the child in the maintained school.”
[23]This approach was confirmed in Ealing London Borough Council v SENDIST and K&K [2008] EWHC 193 (Admin), [2008] ELR 183 per Plender J at [14]:
“Public expenditure may be considered unreasonable if it is disproportionate to the educational advantages of the placement preferred by the parents.”
[24]The determination as to what constitutes an educational or non-educational need is primarily a question of fact for the LEA, and secondarily for the SENDIST. However, if the Tribunal errs in law, the higher courts will interfere: London Borough of Bromley v Special Educational Needs Tribunal and Others[1999] ELR 260at 296 per Sedley LJ.[25]The classic statement on the definition of special educational needs was expounded by Sedley LJ in that case at page 295 onwards:
“Special educational provision is, in principle, whatever is called for by a child’s learning difficulty. A learning difficulty is anything inherent in the child which makes learning significantly harder for him than for most others or which hinders him from making use of ordinary school facilities. What is special about special educational provision is that it is additional to or different from ordinary educational provision (see s 312(4)). So far the meaning is open ended. It is when it comes to the statement under s 324 that the LEA is required to distinguish between special educational provision and non-educational provision; and the prescribed form is divided up accordingly. Two possibilities arise here: either the two categories share a common frontier, so that where the one stops the other begins; or there is between the unequivocally educational and the unequivocally non-educational a shared territory of provision which can be intelligibly allocated to either. It seems to me that to adopt the first approach would be to read into the legislation a sharp dichotomy for which Parliament could easily have made express provision had it wished to do so, but which finds no expression or reflection where one would expect to find it, namely in s 312. Moreover, to interpose a hard edge or a common frontier does not get rid of definitional problems: it simply makes them more acute. And this is one of the reasons why, in my judgment, the second approach is the one to be attributed to Parliament. The potentially large intermediate area of provision which is capable of ranking as educational or non-educational is not made the subject of any statutory prescription precisely because it is for the local education authority, and if necessary the SENT, to exercise a case-by-case judgment which no prescriptive legislation could ever hope to anticipate.”
[26]“Need” in this context means “what is reasonably required”: see R (A) v Hertfordshire County Council [2006] EWHC 3428 (Admin), [2007] ELR 95 at [25] per His HonourJudge Gilbart Q.C. (sitting as a Deputy Judge of the High Court).[27]When considering whether residential provision is required, the focus must be on whether or not the child requires educational programmes continuing after the end of the school day. The fact that a child has a need for a consistency of approach in his dealings with adults outside of school as well as inside school does not mean necessarily that this is an educational need that needs to be met with educational provision beyond the school day: see The Learning Trust v SENDIST and MP [2007] EWHC 1634 (Admin), [2007] ELR 658.

The Appellant’s Case

[28]The appellant in this appeal raised the following as his principal issues: i) Whether SENDIST failed to have regard either adequately or at all to the appellant’s expert evidence, given orally at the hearing and in written submissions, and in particular that TS’s inability to generalise and transfer his skills was an educational need requiring consistency of approach/extended curriculum beyond school and the school day. ii) Whether SENDIST misunderstood the evidence presented on TS’s cognitive profile and confused or conflated this evidence with his need to generalise his learnt skills. It was said that the Tribunal confused cognitive profile with progress, and progress with his need to generalise learnt skills, and erroneously concluded that he did not require educational programmes beyond the school day to provide the necessary consistency to develop key domain skills because he probably did not have the potential to generalise his learnt skills. iii) Further and in the alternative whether SENDIST erred in fact in deciding that TS had made little progress over the previous eight years under what is called the ABA programme and was therefore unlikely to make any further progress with a programme fully provided in the residential school. iv) Further and in the alternative whether SENDIST failed to take account of relevant matters and took into account irrelevant matters in reaching its decision. In particular whether, SENDIST failed to have regard to undisputed and extensive evidence from both parties that TS had an educational need to generalise his learnt skills and that an extended curriculum or some other provision was required to provide a consistency of approach beyond school and the school day to meet that need. SENDIST instead unlawfully determined that because TS had severe and complex learning difficulties he didn’t need educational provision to generalise his skills because he was unlikely to make much progress. v) Whether SENDIST failed to consider adequately or at all substantive issues of the appeal;(i) whether TS’s inability to generalise his learnt skills was an educational need; and(ii) the educational provision required to meet his educational need to transfer and generalise his skills across a range of settings.[29]Essentially, the appellant maintained that there was overwhelming expert evidence that TS required a waking day curriculum, available only in the residential school. His special needs were said to include an educational need to “generalise and transfer skills”. In lay language this means that TS’s educational needs included learning to transfer from education to ordinary social settings (including home) what for other children would not be educational skills – e.g. the ability to request a particular item or activity, or the ability to behave acceptably in the presence of strangers. It was argued that such generalisation and transfer skills could not be provided in or in association with the day school setting, or in the co-operation between day school and home.[30]The above summary is not intended to diminish the full skeleton argument provided and submissions made on behalf of the appellant. In support counsel relied on the failure of SENDIST to refer explicitly in their determination to several reports by experts, some submitted on behalf of the local authority, in which the witnesses identified that TS had an educational need to generalise and transfer learnt skills; and that this need required an extended curriculum providing consistency to enable TS to interact socially and communicate in daily life. Counsel emphasised the local authority’s recognition of such needs across the waking day.

The Local Authority’s Case

[31]The local authority submitted: i) SENDIST did not err in law by not ordering the amendment of Part 2 of TS’s SSEN to include a specific reference to his inability to generalise and adapt or transfer his skills. The parents’ application to amend their original appeal to include an appeal against Part 2 of the Statement was only allowed on 5th February 2008. The amendments sought at that time did not include a request for this need to be identified in Part 2 as an educational need. The Tribunal was not obliged to make this amendment of its own motion. ii) SENDIST did not err in law in finding that TS’s identified educational needs did not require educational programmes extending beyond the school day. The LEA’s position, and the view of the LEA’s Educational Psychologist, Patricia Woods, was that although TS required a consistency of approach across settings to promote the transfer of skills acquired in school to home, this need could be met in the normal way through school and parent/school liaison. Residential provision was not required to meet those needs. Nor were any specific educational programmes extending beyond the school day required to meet those needs. SENDIST accepted the evidence of the Ms Woods on this issue and Part 3 of the Statement includes appropriate reference to parent/school liaison. iii) SENDIST did not misunderstand the evidence presented on TS’s cognitive profile. SENDIST found that he has “severe and complex learning difficulties”. Nor did SENDIST confuse the issue of TS’s cognitive profile with the issue of progress on the earlier ABA programme. Plainly, the degree of progress made in learning is relevant to the issue of whether a child can properly be described as having “severe” learning difficulties. iv) Further, it was not perverse for SENDIST to find that limited progress had been made in key areas of the ABA programme, since that was the evidence of three of the appellant’s experts. v) Nor was it perverse for the Tribunal to conclude that there was no evidence that adequate progress could not be made at the special day school. TS has never attended that school so there could have been no concrete evidence on this. However, given that the Tribunal considered that it could meet all TS’s identified educational needs, it was open to it to conclude that there was no evidence that adequate progress would not be made in that setting. vi) In the circumstances, the Tribunal determined all the substantive issues in the appeal identified by the parties at the hearing. vii) It also gave adequate reasons for its decision.[32]The local authority objected to the submission for the appeal of the evidence of Felix Moss in a statement dated the 8th October 2008. Mr Moss is the appellant’s solicitor, and a specialist in cases such as this. He represented the appellant before SENDIST. Mr Moss’s statement goes beyond the usual permissible limits of such evidence placed at a late stage before this Court. Recourse may sometimes be had to a witness statement where there is a material dispute about the oral evidence of a witness. However, to the extent that it goes beyond an account of what was actually said to the Tribunal it is inadmissible: see The Learning Trust v SENDIST and MP [2007] EWHC 1634 (Admin), [2007] ELR 658 at [29]-[30]per Andrew Nicol QC (now Nicol J) sitting as judge of the High Court.[33]In deciding this appeal, I have taken into account Mr Moss’s statement to the extent that it clarifies what occurred at SENDIST. Some parts of the statement were in reality a repetition of the grounds of the appeal and were included in the appellant’s skeleton argument, so they too have been given full weight.

Findings of this Court

[34]I do not find the structure of the SENDIST decision as helpful as I would wish. In particular, their reasons in relation to Part 4 of the SSEN (at paragraph q) contain material which clearly relates to educational need, and is focused directly on the question of whether the waking day curriculum is required. They said:
“We were also very concerned to establish with clarity what evidence the advising experts relied on in suggesting that the educational outcomes for TS would be significantly better were he to be subject to a waking day curriculum. We concluded that we were not persuaded of the educational necessity of a waking day curriculum. Certainly it seems there would be a chance of improved progress, but there was not sufficient evidence to show that educational programmes, as opposed to a reasonable degree of consistency of approach, across the waking day, are the critical ingredient …”
[35]The above would have had a more correct, natural and helpful place in the Tribunal’s reasoning in relation to Part 2. However, earlier in the Tribunal’s decision, at paragraphs 14-23, though not recording at length all the evidence on both sides of the issue, they dealt specifically with the question of whether a waking day educational curriculum was required. In addition, I was told and accept that there was considerable discussion during the Tribunal hearing of this key issue.[36]Despite the imperfections of the form of the SENDIST determination, I am entitled to take into account the determination as a whole. It is clear that the Tribunal took into account the very full argument as between waking day curriculum and day school provision with significant co-operation between these exemplary parents and their son’s school. Taking the determination as a whole, all material matters were considered.[37]Had SENDIST misdirected themselves as to a relevant matter of law, or as to the facts to such an extent as to render their decision perverse, I would be bound to allow the appeal. Having reviewed all the evidence and the submissions, I am satisfied that they directed themselves correctly.[38]In relation to Part 3 of the SSEN, although it was accepted by the LEA that TS needed a consistency of approach across school, home and community settings, it was again the LEA’s position, summarised at paragraph 14 of the SENDIST decision that, insofar as that was an educational need, it was met by the provision in Part 3 of the statement for “regular liaison between staff and agencies involved with [TS], and his family in order to facilitate consistent methods and approaches and respond to any difficulties should they arise” and for “Teachers, therapist, professionals and parents all to meet on a termly basis to monitor [TS’s] progress and to carefully and systematically plan a co-ordinated programme for the following term.” (p9 of the Final Amended SSEN). I accept this conclusion as being a reasonable one by an expert tribunal on the basis of all the evidence.[39]I agree with the local authority that the fact that a Tribunal identifies that a consistency of approach is required going beyond the school day does not mean either that that is necessarily an educational need, or that it can only be met by way of residential provision. In this case, the Tribunal properly concluded that TS’s undoubted need for consistency did not need to be met by a waking day curriculum, but would be met by a placement at the day school and the provision that the Tribunal accepted should be included in Part 3 of the Statement.[40]It is clear from paragraphs 16 to 19 of the determination that the Tribunal had well in mind that the views of the experts instructed by the Appellant supported the appellant’s case for a waking-day curriculum and residential provision. However, the Tribunal had to balance those views with those of LEA’s witnesses, and in my judgment there is no sound basis for saying that the Tribunal did not do so by the correct process of balancing the competing evidence in the correct framework of law.[41]In my judgment the Tribunal gave adequate reasons for its view that educational programmes were not required throughout TS’s waking day. These were summarised principally at paragraph q of the decision - to be read as part of the decision as a whole, including in particular the summaries of the witness Ms Woods’ evidence on this point at paragraphs 14 and 20-21 of the decision, evidence accepted by the Tribunal.[42]In all the circumstances I find that the decision of SENDIST was neither perverse nor otherwise unlawful. The Tribunal was entitled to hold that the named day school could meet satisfactorily TS’s educational needs. They weighed correctly the competing interests, including that of the public purse so far as it affects such cases. They did not confuse, as was suggested, evidence about cognitive ability with issues concerning TS’s educational progress and his ability to transfer and generalise skills.[43]I therefore dismiss the appeal.

Cited in 4 later judgments