SG v London Borough of Bromley (SEN) [2013] UKUT 619 (AAC)

UKUT-AAC
SG v London Borough of Bromley (SEN)
[2013] UKUT 619 (AAC) · 2013-12-05
This decision is given under section 12(2)(a) of the Tribunals Courts and Enforcement Act 2007.The decision of the First-tier Tribunal heard on 18 June 2012 under reference SE305/12/00006 i nvolves an error on a point of law but it is NOT set aside.

REASONS FOR DECISION

1 I apologise for the delay in providing this decision.2 The appellant appeals the decision of the First-tier Tribunal (the Tribunal) with my permission. It was heard orally on 4 September 2013 at Field House. The appellant who was represented by Mr Clive Rawlings, of counsel, attended. She did not produce any witnesses. The respondent Local Authority (the Local Authority) was represented by Mr Greatorex. Their solicitor, Mr Blomstrand, also attended.3 The appeal relates to the Statement of Special Educational Needs finalised by the Local Authority on 29 December 2011 in respect of C, the appellant’s son. He was born on 2 December 1994 and was therefore 17 when the statement was issued. He was 17 ½ at the time of the Tribunal hearing and is nearly 19 now.4 This appeal is largely academic because in May 2013 the Statement of Special Educational Needs which is the subject of this appeal was reviewed and confirmed as appropriate by a First-tier Tribunal. The appellant has entered an appeal against the review decision. Mr Rawlings submitted, however, that it was important to have this appeal heard by the Upper Tribunal precisely because the Statement of Special Educational Needs was confirmed, thus entrenching the errors in it. Mr Greatorex argued that it was unwarranted to assume that a Tribunal would simply accept the existing Statement uncritically.5 I agree with Mr Greatorex that Mr Rawlings’ position is based on an unwarranted assumption. I am confident that a Special Educational Needs Tribunal’s understands the task is has to perform on a review. Put briefly, this is to assess the continuing appropriateness of the Statement in light of the pupil’s performance during the previous year (Code of Practice § 9.47, § 9.7) If the Tribunal does not consider that the Statement accurately reflects the pupil’s needs, it will make the necessary changes. A lot can happen in a year.6 Overall, however, I have come to the conclusion that the appellant was not unreasonable in pursuing this appeal. In the area of special educational needs, a review may take place, or a fresh statement may be issued, before an appeal can be finally determined. If the intervention of a review or fresh Statement always made an appeal of an underlying or previous Statement futile, an appellant’s legitimate grievances might never be properly considered by the Upper Tribunal. The Upper Tribunal’s decision on whether aspects of those decisions were right or wrong may inform the way the review or fresh Statement is treated. Accordingly, even if the conclusion of the Upper Tribunal is that no relief should, or can meaningfully, be given in an appeal, its decision on whether errors were made may be important.

The background

7 C has had Statements of Special Educational Needs for many years because of his learning difficulties. He suffers from Pervasive Development disorder (not otherwise specified (‘PDD-NOS’), selective mutism, social and school anxiety and has specific higher level language difficulties. He can, however, communicate normally at home and at ‘Straight Curve’, the independent animation studio where he receives his education (Professor Bolton, p155).8 The parties agree that C cannot attend a traditional type of school. He has been educated outside school pursuant to section 19 of the Education Act 1996 for some time. At the time material to this appeal, he was being educated by Straight Curve on a one-to-one basis for 10 hours per week. He appears to be Straight Curve’s only pupil. He also attends the Michael Palin Centre for Stammering, which the Tribunal found to have the expertise to deal fully with C’s communication difficulties.9 There is a long history of dispute between the parties. The Local Authority complains that it has not been able to communicate with C directly or to assess him in recent times. The appellant, on the other hand, has had to resort to the Tribunal system on more than one occasion. She was successful at a Tribunal in respect of C’s special educational needs in 2009 and in one disability discrimination action against C’s primary school. Her most recent disability discrimination action in respect of C was not successful and became entangled with the present special educational needs appeal over an allegation of bias.10 The appellant objected to the Local Authority’s assessment of C’s educational needs and provision for them as set out in Parts 2 and 3 respectively of the Statement. She wanted C to receive a package of education which would enable him to proceed to university. In the 2009 , it appears that the parties and the First-tier Tribunal envisaged as suitable a BTEC in animation studies which was to be provided through Straight Curve (p179). This proved impossible at that stage, as Straight Curve was unable to obtain the necessary accreditation. The appellant also wanted C’s Statement to continue to specify in Parts 3 and 4 that C’s language and mental health problems were educational needs requiring special educational provision. They had been treated as such in past Statements, with Part 3 providing for speech and language therapy (SALT) and cognitive behavioural therapy (CBT). Finally, the appellant wanted the Local Authority to provide a key worker for C, as they had done in the past.

What the Tribunal ordered

11 The Tribunal confirmed that there was no educational need for speech therapy and CBT. It held these needs to be non-educational. It decided that a key worker was not required. It confirmed that C should receive individual tutoring in the agreed educational programme, which required a minimum of 10 hours per week for portfolio work, access courses during school holidays and weekends as offered by Straight Curve, and study towards a BTEC in Creative Media Production (estimated at 270 hour over two years) as determined and taught by Straight Curve in conjunction with the accredited provider.

The Grounds of Appeal

12 To summarise, these were that –a. The Tribunal erred in finding C’s speech and language and communication difficulties to be non-educational needs and not making provision for them;b. The Tribunal erred in not making provision for a key worker to facilitate the educational provision C required;c. The Tribunal erred in confirming only a ‘part time’ educational package for C;d. There are technical errors in the Statement of Special Educational Needs;e. The Tribunal was biased against the appellant.13 Grounds (i) to (iii) were attacked on grounds including irrationality and failure to give sufficient reasons for the conclusions. I am not satisfied that the appellant has come anywhere near showing a case of irrationality in relation to (i) and (ii), on which there was evidence on which the Tribunal could reasonably have come to its conclusion. On (iii), the Tribunal’s decision was defective because the Tribunal failed to make the necessary findings of fact and provide sufficient reasons. I have decided, however, that there is nothing in the error which would justify setting the decision aside. In coming to this decision, I have taken into account that, by the time of the hearing, the Statement of Special Educational Needs had been reviewed and confirmed. It would be pointless to reopen the Statement under appeal.14 Mr Rawlings abandoned a further ground of appeal relating to the way the Tribunal dealt with late evidence at the Upper Tribunal hearing.

How the Tribunal dealt with the disputes

15 The Tribunal clearly faced great difficulties in deciding C’s special educational needs and the appropriate provision to be made for them in his unusual circumstances. The up-to-date evidence was limited. Many of the educational reports in the First-tier bundle (p135ff) dated from 2008 or earlier, and C had not been educationally reassessed recently.16 The Tribunal took into account the relevant reports. These were from Ms Julie Proctor, a consultant clinical psychologist with Bromley Child and Adolescent Mental Health Services (p150ff, 12 August 2011) and from Professor Derek Bolton, an honorary consultant clinical psychologist from South London and Maudsley Trust. Professor Bolton is a child specialist and runs an anxiety clinic (p155ff, 16 November 2011). Ms Proctor agreed with Professor Bolton’s views on the appropriate treatment for C (p159ff). It considered a report from Mr J Abraham, director of Straight Curve, at p177-178 (17 May 2012) which confirms that C can communicate effectively when at Straight Curve, where he feels relaxed, and that he is more than capable of moving onto university; and also a report from Peter Stanton, a specialist teacher of children and young adults with atypical conditions, at p179ff (16 May 2012) agrees that C has the intellectual ability to for GCSEs and A levels, and he had achieved creditable results in those taken. He was unable, however, to take his English Language and Literature GCSE because of a build up of anxiety.17 The Tribunal set out the salient evidence from Professor Bolton’s and Ms Proctor’s reports at paragraphs 11 and 12 of the Decision: C needed professional, long term help with his mental health difficulties to build peer relationships, enhance his adolescent psychosocial development, social functioning, and quality of life and to deal with ordinary life challenges and transitions. It decided that the Michael Palin Centre could most appropriately deal with C’s selective mutism and underlying communication disorder and endorsed Professor Bolton’s view that the Michael Palin Centre should be the primary lead in relation to speech and language therapy. It also recognised that C required CBT. It concluded C’s complex needs were ‘more appropriately addressed in the health rather than education sector’ and made specific findings of fact that the speech and language/communication difficulties were not an educational need requiring educational provision. It came to the same conclusions about CBT.

Ground (a) - Speech, language and communications difficulties

18 The questions here are whether the Tribunal was entitled to conclude from the psychologists’ reports that C’s need of speech and language therapy and CBT were non-educational and whether they gave sufficient reasons for so deciding.19 It is useful to deal first with Mr Rawlings’ point that there was no expert evidence on whether the speech and language problems and CBT were educational and that the Tribunal could not rationally accept the Local Authority’s changes to the Statement. He submits, in essence, that the Tribunal’s hands were tied. That cannot be right.20 The Tribunal is itself a body with educational expertise which it is to use in evaluating the evidence before it. It could reject any or all the expert reports produced by the parties, so long as it explained itself properly. If there were no reports before it from expert educationalists on a relevant matter, it would have to decide the matter by relying on its specialist educational knowledge alone. The Tribunal did, in fact, have evidence before it in this case from psychologists. The Tribunal proceeded, very properly, to decide how C’s mental health conditions, as illuminated by expert psychologists’ reports and viewed through the prism of their specialist educational knowledge, were to be assessed.21 The irrationality argument plainly cannot succeed in light of my views at [20].22 Mr Rawlings also argued that the Tribunal’s reasons were insufficient on the matters of speech and language and CBT.23 It is a question of fact for the Tribunal whether a need and the provision to be made for it is to be seen as educational or non-educational ( R v Oxfordshire CC ex parte W [1987] 2 FLR 193). Speech therapy enabling a child to communicate so that he may be fully understood by others is treated in case law as ‘clearly educational’ ( R v Lancashire CC ex parte M [1989] 2FLR 279 [30], per Balcombe LJ). This is encapsulated in paragraph 8.49 of the Special Educational Needs Code of Practice:
‘Case law has established that speech and language therapy can be regarded as either educational or non-educational provision, or both depending upon the health or developmental history of each child. It could therefore appear in either Part 3 or Part 6 of the statement or in both. However, since communication is so fundamental in learning and progression, addressing speech and language impairment should normally be recorded as educational provision unless there are exceptional reasons for not doing so. [underlined as in Code]
24 Mr Rawlings drew attention to X, X v Caerphilly County Borough Council, Special Educational Needs and Disability Tribunal [2004] EWHC 2140 where Keith J highlighted §8.49. But that case does not provide much assistance. The Tribunal there had misunderstood the evidence before it that speech therapy would help the child’s behaviour and education. No one argued that speech therapy should be treated exceptionally as non-educational, even if it might have had some educational benefit. Keith J does not, moreover, give any guidance on how a Tribunal is to decide if speech therapy is or is not educational.25 I have come to the conclusion that there is not a material error of law in relation to this ground.26 Under section 313 of the Education Act 1996, Tribunals are required to have regard to the Code of Practice, but the Code is not binding in law. Knowledge of the Code of Practice is so fundamental to the everyday work of a Special Educational Needs Tribunal that it is improbable that they would have been unaware of a relevant paragraph. Baroness Hale’s dictum at paragraph 30 of Secretary of State for the Home Department v AH (Sudan) [2007] EWHL 297 are germane:
‘…This is an expert tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right: see Cooke v Secretary of State for Social Security [2001] EWCA Civ 734 , [2002] 3 All ER 279 , para 16. They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently
The Court of Appeal approved this passage and applied it to Special Educational Needs First-tier Tribunals in H v East Sussex County Council [2009] EWCA Civ 249 at [17].27 The Tribunal in this case referred to the Code of Practice generally but certainly did not refer specifically to § 8.49, which was plainly relevant. It did not consciously advert to the special emphasis the Code places on speech therapy as educational. It would undoubtedly have been better if, on a fundamental matter such as this, a Tribunal did refer expressly to the relevant provision of the Code, but on omission to do so is not necessarily amount to an error of law. Whether it does depends on if the omission illustrates a material deficiency in the analysis of a particular issue. That, in turn, depends on reading the Statement as a whole in light of the issues and evidence before the Tribunal.28 Given that Special Educational Needs Tribunals are specialist bodies, the conclusion that the omission revealed a material legal error should not be reached without circumspection. In my view, if the Tribunal has identified the facts which support its decision, and its reasoning can be sensibly fathomed, it has done enough to justify its decision.29 It is not possible to prescribe how a Tribunal is to approach this task, though it is obviously safest for the Tribunal to refer to the relevant paragraph(s) in order to concentrate its own and the reader’s mind. It should then explain any difficulty in the application of the paragraphs and how and why it resolved them as it did. This will normally require a discussion and resolution of the evidence.30 The Tribunal’s decision is weak on this point. The weakness arises from the format which Special Educational Needs Tribunals adopt when writing their decisions, dividing them into ‘Evidence’ and ‘Conclusions’. This can be fraught with danger, beguiling an unwary Tribunal into merely reciting evidence without analysing it, and then leaping to an unsupported conclusion. The Tribunal’s job is, of course, quite different. It must analyse and weigh the evidence, make findings of fact based on the analysis and then come to its conclusions in law on those findings. Without this, the conclusions are no more than assertions.31 Mr Rawlings not unnaturally pointed to the lack of explicit explanation for treating speech therapy and CBT as non-educational, but an explanation may be sufficient if it is implicit.32 I am satisfied that the Tribunal has done enough to indicate the basis for its conclusion and avoid the error of insufficiency. Although it recited the psychologists’ evidence under the heading ‘Evidence’ and then appeared to move seamlessly to ‘Conclusions’, the way it set out the evidence leads me to conclude that the Tribunal intended to find these as facts and did so with a purpose in mind, viz. to support its conclusion that C’s needs were essentially non-educational. The evidence before the Tribunal was that C could not be educated in school; reintegration was not any longer considered to be possible. At home and at Straight Curve, he did not have any significant communication difficulties (p156); the help he needed was in dealing with his mental health issues on an ordinary, day to day basis. The Tribunal was clear, as was the evidence before it, that the Michael Palin Centre could provide a complete speech and language therapy package/care to deal with C’s communication problems (p156; 159). The problems C faced were most unusual. In all the circumstances, they could reasonably conclude that the problems and their solutions were non-educational.

Ground (b) - the key worker

33 The Tribunal dealt with the relevant evidence given by Mr Harty on the key worker issue and specifically accepted it. I cannot see any material error in the way the Tribunal did so, and at the hearing it was not raised specifically.

Ground (c) – the part-time education package

34 C is educated under section 19(4) of the Education Act 1996, under which the Local Authority may make arrangements for the provision of
‘suitable [italics added] education…otherwise than at school for those young persons who, by reason of illness … or otherwise may not for any period receive suitable education unless such arrangements are made for them.

Suitable education means

efficient education suitable to ‘a young person’s] age, ability and aptitude and to any special educational needs he may have …. (section 19(6))A young person is a person over compulsory school age but under the age of 18 (section 579). C is a young person.35 The duty is to provide suitable education for a young person. There is no duty on a Local Authority to provide full-time education to a young person such as C, though they do have a duty under section 9 to have regard to the principle that pupils are to be educated in accordance with the wishes of their parents so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure (section 9). If a parent wishes the young person to have full time education, the Local Authority must have regard to that wish. Full time education is not defined in the legislation but is the norm for a young person staying on at school after 16. Nevertheless, as Mr Greatorex rightly points out, full time education is quite flexible for a young person such as C, who is at 6 th form stage. At the end of the day, however, the Tribunal had a duty to deal with the issue put to it.36 Mr Rawlings submitted that the Tribunal simply failed to engage with the issue of whether C should be provided with a full time educational package. I agree. The Tribunal rubber stamped the Local Authority’s conclusion that full time education was not appropriate because C was ‘receiving bespoke post-16 provision otherwise than at a school’. That was mere assertion unsupported by findings of fact and analysis.37 The result is that there is an error of law, but I decline to give any remedy apart acknowledging the error. I have taken into account that Mr Rawlings has not given any indication of what might have been included in a full time package suitable for C. The debate is arid.

Ground (iv) Drafting Errors on the Statement

38 Mr Rawlings argues that the Statement was fatally flawed because it included in Parts 2 and 3 references to speech, language and communication difficulties and the provision required for them which it found to be non- educational, and because it referred to ‘speech and language therapy’ to be delivered in ‘a mode and frequency as advised by a speech and language therapist specialising in selective mutism as a communication difficulty’ (Staffing, paragraph 6).39 Statements are not always ruthlessly logical. They may contain material for narrative purposes and reflect compromises which do not sit comfortably with the stark requirement to describe educational needs and provision. It would be wrong, however, to condemn a Statement which is otherwise legally sufficient because of inclusions of this sort.40 There does appear to be an ambiguity in paragraph 8 of the Statement of Special Educational Needs (‘Educational’) where C is described as not having ‘learning difficulties as such’ but as having language processing difficulties. It is not entirely clear from Part 2 alone whether the language processing difficulties are meant to be learning difficulties within section 312 of the Education Act 1996. This can, however, be determined by reference to the Decision, in which the Tribunal clearly states expressly that speech and language therapy and CBT were not part of C’s educational needs requiring educational provision, and that they were to be excluded from Part 3. Tribunals should, of course, ensure that the wording in the Statement itself makes clear what is considered an educational need to be met in the Statement.41 If the Tribunal had determined the needs to be educational, its formulation would have been fundamentally wrong. The Statement must be sufficiently specific so that the parties know very clearly what is to be provided, and the Local Authority cannot simply delegate its duty on this. There is no need to rehearse the well-known cases.

Ground (v) Bias

42 The issue arises because the judge presiding over this Special Educational Needs appeal was also the presiding judge in a Disability Discrimination Act claim at which the appellant was unsuccessful. That, of course, does not in any way impugn the impartiality of the judge on another appeal which comes before him. Judges are routinely required to deal with cases involving the same litigants. This is especially so in small, specialist jurisdictions.43 However, at the outset of the Special Educational Needs appeal the judge told the appellant that the disability discrimination appeal would not play any part in the present appeal. As the evidence emerged, the judge saw a number of inconsistencies between the appellant’s evidence at this hearing and the evidence she gave previously at the disability discrimination hearing. The wing members would not have been aware of these since they were not involved in the disability discrimination appeal. The judge brought the inconsistencies to the appellant’s attention. The fact that she had said what she did at the outset in no way precluded the judge from raising these inconsistencies, if the need to do so arose only during the course of the hearing, provided that it was done in a procedurally fair way.44 The appellant, however, considers that her credibility was attacked on the basis of evidence given in another case, that her evidence was treated with amusement or irritation, and that the Tribunal gave the appearance of bias. She made a formal complaint to Her Majesty's Courts and Tribunals Service which was dismissed and was left to pursue this issue before the Upper Tribunal.45 The Local Authority (which were the respondent in the disability discrimination case) acknowledge that the tribunal judge did ‘on a couple of occasions make reference to the previous Disability Discrimination Act claim but only in the context of highlighting blatant inconsistencies between the appellant’s evidence in that claim and the instant case (Local Authority response, 28 December 2012, page 2, [3.2]). They referred to some incredulity, or perhaps bemusement by the Tribunal but considered it to have acted robustly but fairly. They resisted my suggestion in case management directions given on 22 February 2013 (p87) that the case might be set aside on this basis.46 I have come to the conclusion that the respondent was right to stand their ground. I find that there was no material breach of natural justice by apparent bias or any other unfairness in the proceedings.47 The test for whether a court or tribunal is tainted by apparent bias is determined by whether the fair minded and informed observer, having considered the facts, would conclude that there was a real possibility that the Tribunal was biased: Porter v Magill [2001] UKHL 67 .48 It is unfortunate that the appellant felt that she was not treated seriously and that she felt the members were irritated. Court and tribunal appearances are inherently stressful, and what a party perceives as irritation may be no more than the judge moving the proceedings on or asking uncomfortable questions.49 Parties are, of course, to be treated seriously and politely. There is plainly no agreement between the parties in this case about the way in which the appellant was treated.50 It is also important to remember that the appellant was represented by an education law specialist and adviser at Watkins Solicitors. As such, she would be expected to make applications and submissions, examine her client and clarify issues which arose at the hearing.51 It is the practice of tribunals to record applications made or incidents at a hearing. The Decision does not record any application for adjournment having been made, or any protest from the appellant or her representative. Nor does Mr Rawlings assert that such application or protests were made at the hearing.52 There is nothing to suggest that the appellant and her representative were not given a fair opportunity to respond to the tribunal judge’s challenges.53 The Tribunal carefully limited its credibility finding to the appellant’s perception of events , which it treated with caution (paragraph [17]). No events were referred to in the Decision, and there is nothing whatever to indicate that the Disability Discrimination appeal had any impact on the Tribunal in dealing with special educational needs questions before it.54 The appellant and Mr Rawlings have not given any particulars of the evidence on which the appellant was challenged or, importantly, explained how the challenges to her evidence had an impact on, or tainted, the decision.55 In all of these circumstances, the fair minded and informed observer in Porter v Magill [2001] UKHL 67 would not conclude that there was any apparent bias. This was the only ground of unfairness/breach of natural justice put forward.

[Signed on original] S M Lane

Judge of the Upper Tribunal

[Date] 5 December 2013

Cited in 1 later judgment