OR v London Borough of Ealing [2012] UKUT 211 (AAC)

UKUT-AAC
OR v London Borough of Ealing
[2012] UKUT 211 (AAC) · 2012-06-14
Sarah Hannett of counsel, instructed by the Solicitor to the London Borough of Ealing for the respondent Council.

DECISION

Permission to appeal is granted for the reasons below.The appeal is allowed as in error of law. For the reasons below, the decision is not set aside. But it is incomplete. Case management directions for completion of the appeal are set out below.This decision is made under the authority of the Tribunals, Courts and Enforcement Act 2007 section 12.

REASONS FOR DECISION

1 This decision follows a rolled-up hearing of both the application for permission to appeal and the appeal heard together by me on 11 06 2012. It was agreed with the parties that the hearing would be rolled up to avoid further delay in the case. It was also agreed with the parties that the decision would be given as a matter of priority to take into account a forthcoming hearing of a separate appeal to the First-tier Tribunal by P for N that is factually linked with this appeal and listed to be heard in July. I deal with the outcome of the appeal below.

Background

2 This decision concerns a statement of special educational need for a child I call N. N was born in 2000 and was of primary school age at the time of the appeal. However, one of the key points in the application for permission to appeal was that N was approaching the age at which primary education normally gives way to secondary education in England. The appellant is N’s parent, whom I refer to as P. The respondent is the local authority responsible at the time of the appeal for N’s education and the preparation of a statement of special educational need for N. I refer to the respondent as the Council in this decision.3 From 2008 N was attending a mainstream primary school maintained by the Council that I call SPS. A statement of special educational need was prepared for N in September 2009. That statement came up for review at SPS in June 2009. N interrupted the review meeting at the school. Because of what happened immediately after N was removed from the room where the review meeting was occurring, N was excluded from SPS. It is not clear for what period that exclusion operated, but it seems not to have been challenged at the time. In any event, N refused to return to the school and has not attended any school since. Nor has any home educational provision been made for N save for any provision that may have made by P, about which I have no information. I am told that no action was taken to enforce attendance by N at any school. I am also told that although support had been requested from local social services no resources had been allocated to assist the family in recent years. N has received help from NHS Child and Adolescent Mental Health Services since 2003.4 I was told at the hearing that in the few days previous to this hearing events had caused N to be taken into care and removed to be resident with foster parents some distance from P’s home, where N had until then been living (and some distance outside the area of the Council). This is clearly of relevance to the outcome of this appeal.

The statement

5 A statement of special educational needs for N was issued by the Council on 29 09 2009. This statement was under review when N’s exclusion occurred. Following this, a new final statement was issued by the Council for N on 21 12 2010 (the Statement). The reason for the Statement was that N was diagnosed with autistic spectrum disorder and had sensory processing and social and communications difficulties. She could demonstrate challenging behaviour at home.

The appeal to the First-tier Tribunal

6 An appeal against the Statement was registered with the First-tier Tribunal on 10 03 2011. The appeal was against Parts 2, 3 and 4 of the Statement. The council responded to the appeal, opposing it, on 12 04 2011.7 The First-tier Tribunal took an active part in progressing the appeal from that time. On 7 06 2011 a First-tier Tribunal judge made directions for the production of evidence and a hearing on 5 07 2011. Evidence was submitted by the Council to the First-tier Tribunal on 13 06 2011. This continued to name SPS as the relevant school in Part 4 of the Statement. P submitted a parental case shortly after that. This named another school, KS, as the school to be named in Part 4, and an application was made to change Part 4 accordingly. The parental request had previously been confined to a type of school.8 As those acting for N had not received any evidence from the Council at this stage, an application was made to the First-tier Tribunal on 24 06 2011 to bar the Council from taking any further part in the appeal. This had followed a series of other applications for a case management hearing and permission to admit late evidence.The Council also made an application to the First-tier Tribunal at that time for postponement of the hearing, basing this in part on non-cooperation by P. A First-tier Tribunal judge issued a direction on 1 07 2011 agreeing to postpone the hearing and making directions to ensure a new date and proper exchange of cases for the appeal. The request to change the request for Part 4 to name KS was agreed and a new deadline was set for new evidence.9 On 2 08 2011 the Council submitted further evidence and named a new school for Part 4. I call that school BS. This was promptly followed by an application for P asking for costs because of the contended failure by the Council to comply with tribunal rules, and a separate application for a direction that evidence on BS be produced. The council agreed to meet the costs and a direction was issued about the further evidence.10 The hearing of the appeal finally started on 13 09 2011. It was adjourned part heard, and the hearing resumed on 22 09 2011. Evidence at that hearing made it clear that BS could not be named as the school in Part 4. On 14 10 2011 the First-tier Tribunal issued a provisional decision on the appeal. It found that neither school named in the cases before it was appropriate. Full reasons were given by the tribunal for its decision. Those reasons identified the areas of disagreement between the parties about Parts 2 and 3 of the Statement. The tribunal found that the parties had agreed amendments to Part 2 save for one point which it considered should be added to the Statement. It noted that two separate models of provision for N had been identified by the two parties. Linked with this, it found that a mainstream primary school could no longer provide for N’s needs and that both parties accepted that. This excluded SPS from a school to be named in Part 4. It separately found that both BS and KS were inappropriate as schools to be named in Part 4. But it also found that it was not in N’s interests for the tribunal to confine itself to naming a type of school only.11 For these reasons the tribunal adjourned the appeal part heard. It gave directions, with a timetable, for both parties to name a school for Part 4 with supporting evidence to be submitted. In the interim the tribunal directed that N was to be regarded as a child to whom section 319 of the Education Act 1996 applied, and that appropriate arrangements should be made.12 On 25 10 2011 another application was made to the First-tier Tribunal for P, this time to ask for an extension of time for complying with the directions issued with the decision on 14 10 2011 and if necessary to postpone the final day of hearing. This led to a case management hearing by telephone on 10 11 2011. At this hearing an undertaking was given for P about compliance with all requests by the Council to attend prospective schools for assessment of N. Upon that undertaking being given the First-tier Tribunal judge directed a new timetable on the parties with a reconvened hearing to take place on 5 12 2011. Both parties were given express notice that these directions should be regarded as final and that there were sanctions for non-compliance with them.13 Those warnings did not, however, stop applications being made by the parties, but the hearing was not further postponed. At the hearing N was given permission to admit a transition plan. This followed an application made to the tribunal for P on 16 12 2011. This named a new school, GS, for Part 4. Another application was made for P to strike out the Council as a party on the grounds that it had not complied with the directions made on 14 10 2011 and 11 11 2011. The tribunal dismissed the application. Its ruling, as issued in the decision following that hearing was that “The tribunal was satisfied that the LA had complied with the directions and had not since 14 10 2011 conducted its defiance (sic) of the appeal in a manner that was unfair to the appellant.” I take that to be a mistype for “defence” as I can see no defiance of the appeal on the record.14 The tribunal gave full reasons for its decision following that hearing. It directed an amendment to Part 2 of the Statement in the same terms as recorded in the provisional decision, and amendments to Part 3 of the Statement. It directed that the existing entry for Part 4 be deleted and that Part 4 of the Statement be amended to read as follows (the name of the school being shown in this decision as SS, a different school to any other school so far named in this decision):
“A primary day special school able to make provision for pupils of average ability with Autistic Spectrum Disorder including Asperger’s Syndrome and associated difficulties.

SS.”

That decision is recorded as issued on 23 12 2011. On reviewing the papers after the hearing, I note however that on 23 12 2011 the clerk to the tribunal sent copies of the working document to the parties that recorded under Part 4:
“Placement – not agreed.”
This was sent as an annex to be attached to the tribunal decision. The Council recorded at the time that it received the decision on 5 01 2012, and the annex on 13 01 2012. Those representing P received the appendix on 16 01 2012, having received the decision on 30 12 2011.15 I am told by counsel who was at the final hearing, and therefore accept, that at the final hearing the judge gave an oral direction to the parties to produce an amended version of the Statement to the tribunal immediately following the hearing.The papers before me show that a working document was received from the Council and forwarded to the First-tier Tribunal judge on 22 12 2011. That shows part 4 as reading:
“Part 4 – PLACEMENT – not agreed.
Until July 2012 a primary placement at GS …. A specialist school for pupils on the Autistic Spectrum

From September 2012 a secondary placement at [the same school]

A day placement at:

SS

(a day special school for pupils with autism and Asperger’s syndrome aged 4

-16 years) …

The document states at the top that bold type is used for text from the Council not agreed for the appellant, and text underlined is text from N not agreed for the Council. This clearly sets out the views of the two parties as at the date of the hearing and as required by section 326 of the Education Act 199616 I am concerned, as I stated at the hearing, about this document given that this clearly came from the Council with input from those representing P and was sent to the judge who presided at the hearing the previous day before that judge had issued the final decision in the appeal, and, as I have indicated, it was sent at that judge’s direction or request. The previous working document put to the tribunal (as sent out to the parties after this version had been received) contained neither version of this entry for Part 4. Nor did the working document sent out with the decision and expressed to be subject to the tribunal’s direction as set out above. Neither party could assist me at the hearing as to why no reference was made to this document or the request in the final decision of the tribunal. If the perceived request was a misunderstanding, it was one shared by the parties.17 I have not recorded in any detail the evidence offered to the tribunal or the alleged shortcomings in that evidence. It is sufficient for present purposes to note that the bundle of papers sent from the First-tier Tribunal to the Upper Tribunal had over 1,700 numbered pages of evidence in a single bundle (plus other unnumbered pages). While the parties helpfully agreed a shorter bundle of documents for the hearing before me, that was still extensive. .18 I have set out the lengthy and complicated history of this appeal because I consider it fundamental to my consideration of the application for permission to appeal to the Upper Tribunal and the outcome of that application.

The application for permission to appeal

19 With that in mind, but also conscious of the need to deal with this application and decision without delay, I turn to the grounds of appeal. In doing so, I record my gratitude to both parties for the useful skeleton arguments they presented ahead of the hearing on 11 05 2012 and their cooperation in dealing with both the application and the appeal on the day. That I deal with the application for P and the submissions for the Council briefly is not intended to be any comment on the thoroughness with which both counsel dealt with the case. To the extent necessary I take both cases as being stated in those skeletons and do not seek to repeat them in detail here.20 Three grounds of appeal were put to me for P by Ms Lawrence. I exclude from them issues I consider to be fact rather than law or that I do not consider materially affect the outcome decision of the First-tier Tribunal. The grounds are:- errors by the tribunal in considering the Council’s proposed version of Part 3 and part 4 of the Statement

- inadequate evidence about the Council’s proposed version of Part 3 and Part 4

- failure to deal with provision of secondary education for N.I take those as essentially two issues: the adequacy of the decision taken with the evidence available to the tribunal; and the issue of N’s education once N was of secondary age.

The question of secondary provision for N

21 In my view, given the content of the final document presented by the parties to the tribunal, the admission of evidence about transfer shortly before the final hearing, and the context of the final decision, the question about the limitation of the final version of Part 4 of the decision to primary education only is plainly an arguable error of law in that it is arguable that as a result the tribunal has not dealt fully with the appeal before it.22 I heard full argument from both parties on this point. Ms Lawrence rested her argument in part on the decision of Kay J in Wilkins v Goldthorpe and Coventry City Council [1998] ELR 345. That case concerned a child excluded from primary school at the beginning of the child’s final year there. An appeal to the tribunal about the placement of the child came before a tribunal the following March, in effect one term before the transfer of the child, in the normal course of events, to a secondary school. The tribunal’s decision was, however, limited to the placement of the child for the final term of primary education.23 Kay J decided that the tribunal had erred in law in limiting itself in this way. Having cited authority, he stated (at page 349):
“… when an appeal of this kind comes before the tribunal, the tribunal is bound at that stage to look at the overall picture as to the particular special needs of the child at that time. It is not for the tribunal simply to address the issues as at the stage when the statement is drawn or when the appellant lodges her appeal. If by the time of the hearing there is but a short time left
of the primary education, it seems to me clear that the tribunal is bound to reach a conclusion as to the mode beyond that very short period and look to the future needs of the child.There may of course be circumstances in which it is impossible to look beyond even a very short period, but no one suggests that that was the situation in this case.”24 Ms Hannett resisted the appellant’s argument on several grounds. She first took me to regulation 19 of the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001. That regulation applies to any child for whom a statement is maintained and who is within 12 calendar months of a transfer between phases of schooling. In this case the regulation would apply to a transfer from primary school to secondary school. Where the regulation applies, it provides that the authority maintaining the statement must amend it so that before 15 February in the year of transfer the school to be attended by the child after the transfer is named.25 That was required in this case by 14 February 2012, after the hearing by the tribunal. And that (as I note below) was what happened. But that was ahead of the time the tribunal decided the case, so did not require the tribunal to consider the matter. That could be dealt with, and would be dealt with, by a separate appeal against a separate decision.26 Ms Hannett also sought to distinguish Goldthorpe because that decision was about a tribunal decision in March of the transfer year (and after the date now in the regulation) while this case was about a decision made the previous December. She also addressed me about the consequences in this case of finding that the tribunal erred on this point, to suggest that this was of itself a reason not to find the tribunal in error, but I consider that point separately later.27 I am satisfied that the issue of transfer was before the tribunal. That was made explicit when the evidence about transfer was allowed in late but before the hearing on 21 12 2011 and without comment as to relevance. I say “transfer” but of course the tribunal was fully aware when it took its final decision that both the school named by P and the school named by the Council were through schools that dealt with children both before and after the age of 11. So neither of the named schools required a transfer of school. That was not an issue before it. That was also confirmed by the final form of the working document submitted by the parties at the close of proceedings.28 I have read the first decision of the tribunal (issued on 14 10 2011) closely with the question of the impending transfer in mind. I see nothing in that provisional decision that suggests that the tribunal was limiting its focus to primary education only. The clear message was that the school to be identified was to be a special school and that none of the schools attended or identified to date met N’s needs. The tribunal referred in paragraph [32] to placement in a mainstream primary school as one model for moving forward and for the need to ensure access to Key Stage 2 “for at least the remainder of [the] primary school years” in paragraph [33]. And in [38] it found that N “does, in the immediate future, require the type of provision that only a special school able to make provision for pupils with ASD can offer”. At paragraph [40] the tribunal therefore rejected all schools named, directed further schools to be named, and indicated that this should be decided by the end of November 2011.29 As noted, the decision was taken in late December and, predictably, did not reach the parties until January. In the December decision the tribunal considered GS as the school named for N by P and SS as the school named by the Council. It noted both as “through” schools. And it noted the transfer plans submitted for P from GS. It also noted the proposal for the Council of a 4 week introduction of N to SS. And it recorded the annualised costs of the two schools.30 Much of the reasoning for the tribunal’s final decision follows the same text as the provisional decision, as would be expected. The additional reasoning does not deal expressly with the issue of transfer, and does not deal at all with the late document produced by both parties the day after the final hearing. The only paragraph relevant to any longer term consideration of N’s needs is paragraph [47], which reads:
“47 The tribunal was satisfied that SS could make the special educational provision to be specified in Part 3 of [N’s] statement for the remainder of the primary education. If [N] attends SS for the remainder of the primary education there will be a saving to the LA of at least £40,000 and if [N] were to remain in SS until the end of year 11 there would be an agreed saving to the LA of at least £350,000. The tribunal accepts that as a considerable saving to the LA.”
31 This is a marginal case, and a difficult one, but I conclude that the tribunal was wrong to restrict its decision in Part 4 to primary education without explaining in its decision why it did that. I take that view for several reasons. The first is that this is an expert tribunal and can be expected to be alert to the requirements of regulation 19 of the Regulations without the need of a reminder. Indeed in this case that may be one reason for the pressure clearly being applied by the tribunal to attain a resolution of the appeal. But if that was so, it should have said so in the context of this case either at the hearing or in the decision, if not both. I make that point because the tribunal asked the parties for the document that in the final version of Part 4 indicated that in their view Part 4 should deal with the longer term and not what, at that time, was no more than two terms at the very most. That plainly indicates what the parties thought was required by the tribunal at that time. And I see nothing in the provisional decision of October to suggest that in naming schools the parties were to look only at primary education for the balance of that school year.32 Second, the tribunal admitted the evidence about transfer from GS as relevant and noted it in its decision. So the longer term education of N was plainly in issue between the parties before the tribunal. Third, it noted that both schools were “through” schools and took that into account in its findings about relative costs. So there was no suggestion before the tribunal that there would need to be a change of school by N at the end of that school year. And fourth, while the decision of the tribunal was made before 15 February and therefore did not cut across the duty of the Council under regulation 19, the effect of the decision was that there was a matter of only a few weeks before the whole issue had to be started again under that regulation. I saw nothing to suggest that the tribunal enquired into that.33 I do not regard the facts of the decision of Kay J as binding authority on me with regard to “short” or “very short” periods. But the principles behind his decision are clear, and I agree with them and accept them to be applied here. The extent to which a tribunal should look forward beyond the near future is clearly an issue to be decided on the facts of the particular case taking into account not least both the question whether looking forward is possible and the matters put in issue by the parties. This is not a case where looking forward beyond the next two terms was impossible. On the contrary, it was something that the tribunal had been asked to decide, had evidence on which to decide, and plainly could decide.34 It may be said that this was an appeal about a statement made in December 2010, with the appeal being made the following March, so some time before the transfer question became important. But the time taken over the appeal changed the agenda as, despite its efforts, the tribunal was overtaken by events. It was in 2012 that the decision was received by the parties, and the time was then short. In this particular case I am therefore of the view that on balance the tribunal only decided part of the appeal before it when it made a decision to deal in Part 4 by deciding on a “primary day special school”. It should in its decision also have looked forward. Alternatively it should have indicated why it was not looking forward. It did neither. It therefore erred in law.

Adequacy of the decision

35 The other sustained criticism of the First-tier Tribunal decision by Ms Lawrence was about the adequacy of the decision and of the evidence on which the decision was based. These were put in two separate grounds in the original application to appeal, but I deal with them together as did Ms Lawrence. In a close and sustained analysis of the decision of the tribunal, Ms Lawrence contended that there were inadequacies in several aspects of its procedure, hearing and decision. She considered that there were three substantive aspects of the evidence before the tribunal about SS, the school finally named, and the decision of the tribunal about that school that were below the required standard. She also had strong criticism for the lack of evidence before the tribunal about SS. This was because, on the final day of hearing, no witness was available directly from the school to answer questions.36 The specific criticisms were with regard to the view taken by the tribunal on the questions of:(a) the peer group to which N would be added;(b) the training and experience of the teachers who would be dealing with N at SS; and(c) the decision about the extended curriculum beyond the school day. The tribunal had an investigative duty and it had not carried it out. For this reason Ms Lawrence contended that I should set aside the decision of the tribunal on Part 3 of the Statement as well as on Part 4. Again, I intend no disrespect in noting that this argument was presented fully, with proper reference to the documentation, although I do not repeat it or analyse it further at length.37 Ms Hannett’s response for the Council was also robust. None of these issues was even arguable. The test was that of the tribunal having been Wednesbury unreasonable. That was far from the case. It had amassed over 1,600 pages of evidence and submissions. It was an expert body and knew what it was doing. And it had, in its reasons, met the tests required by the higher courts. She also addressed the three specific issues raised by Ms Lawrence.38 I do not consider that I need to go into detail on this ground of appeal. I broadly agree with Ms Hannett. First, I entirely endorse the comments of the Court in W v Gloucestershire CC [2001] EWHC Admin 481 that a First-tier Tribunal, when hearing a case such as this has (to quote that judgment) “a duty to act inquisitorially when the occasion arises by making sure they have the basic information to decide the appeal before them”. That is precisely what this tribunal did. It rejected the initial choices of both parties for the school to be named for N. It rejected the Council’s suggestion that N could be educated in a mainstream school. And it further rejected the easy option of not naming a school. Instead it sent both parties away to name other schools. Further, throughout it did its best to ensure that both parties were fully engaged in that activity in the appeal and with N. It did that against a background of repeated applications for P to strike out the Councils a party for non-compliance and a need itself to secure an undertaking about P’s compliance. It rightly also resisted the easy way out offered by those applications of excluding a party. With regard to Part 4, it could do no more than it did consistently with section 326 of the 1996 Act. And it pushed hard for an early resolution of the appeal. Again, it had a duty to handle the case in accordance with rule 2 of the Tribunal Procedure Rules for the benefit not only of N but also of all other parties with appeals before the First-tier Tribunal.39 More generally, an advantage of the wide jurisdiction of the Upper Tribunal Administrative Appeals Chamber under the Tribunals, Courts and Enforcement Act 2007 is that its judges have a continuing opportunity to see how the First-tier Tribunal delivers justice across four chambers and many jurisdictions. So its judges have a particularly advantageous viewpoint from which to observe how individual tribunals deliver justice under the common procedures and duties imposed by the Tribunal Procedure Rules. In this case, from that viewpoint, I have no hesitation in saying that this tribunal, despite having failed in my view with regard to its duty to look forward, did not fail to handle this case fairly and justly within the constraints of the system. If there was any failure in this case to comply with the requirements of rule 2 of the Tribunal Procedure Rules it was a failure of the parties at various times to comply with the duty to help the tribunal further the overriding objective and co-operate with the tribunal generally. (That, I make clear, is not in any way a comment about counsel).40 I view the criticisms of adequacy in this light, and do not consider I need to deal with them in any more detail. I have already noted the extensive evidence amassed, the number of hearings, applications and case management decisions, the number of schools rejected by the tribunal during the proceedings and its best endeavours to keep the case on track. In that context, I see nothing inadequate about its final decision, read with its interim decision and its case management. It was unfortunate that a particular witness was not available at short notice when, at a late stage, a further new school came into consideration. There was other evidence, including third party evidence, about the school. The absence of that witness, for good reason accepted by the tribunal, does not in my view render the whole proceedings in error of law with regard to the decision that the tribunal did take. I have separately found the other aspect of the tribunal decision – the failure to look ahead – to be in error for other reasons so do not need to consider this point in that context.

Conclusion

41 I therefore conclude that the tribunal erred in not looking forward but did not err in the immediate decision it made. I find that its error was not in the decision it made but the decision it did not make.42 My duty in the Upper Tribunal is set out by section 12 of the Tribunals, Courts and Enforcement Act 2007. I have identified an error of law. That being so, I may, but am not required to, set aside the tribunal decision. If I do so, I must remit the case to the First-tier Tribunal with directions or I must take the decision myself.43 I turn to the context in which I must decide the proper course of action. It is, to put it mildly, unusual. The first point is that there is an appeal pending before the First-tier Tribunal about the issue that this tribunal should have addressed, namely a revised statement about N issued by the Council under its duty under regulation 19 as set out above. That comes before a First-tier Tribunal next month I am told. That is why I have expedited this decision. Second, the whole issue may now be theoretical because it may be that because of incidents a few days ago the Council probably no longer has any responsibility for N, and P’s position may have changed fundamentally. It is not my task to enquire into either of those issues, but both render the need for a rehearing of this appeal entirely superfluous.44 I asked counsel for both parties at the hearing about possible courses of action following this decision, and I am grateful to them for their help and offers of assistance in expediting this decision and resolving the issue of the proper outcome.I have decided that the proper course to take within the powers available to me is to find that the tribunal did not err in law in connection with the decision it did take, but that this decision fell short of the full decision it should have taken. I therefore do not set aside the tribunal decision. Instead, I direct that it be drawn to the attention of the lead judge in the jurisdiction below to ensure that the unresolved aspect of this appeal is fully before the First-tier Tribunal that hears the appeal by P currently pending, if that appeal goes ahead. If any problem arises, then I invite the parties to make any necessary application to me or another judge of the Upper Tribunal.

DIRECTION

I direct that this decision be drawn to the attention of the lead judge of the Special Educational Needs jurisdiction of the Health, Education and Social Care Chamber of the First-tier Tribunal with the direction that the judge note the unresolved issue in this appeal and makes, or directs others to make, any necessary case management arrangements to ensure that the unresolved issue is put before the tribunal currently listed to hear an appeal joined between the parties to this appeal or that any issue that remains unresolved is otherwise put before an appropriate tribunal. It is for that judge to make any necessary directions and to decide the appropriate composition of that tribunal.

David Williams

Upper Tribunal Judge

14 06 2012

[Signed on the original on the date stated]

Cited in 1 later judgment