England and Wales Court of Appeal (Civil Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEEN'S BENCH DIVISION
(MR JUSTICE TURNER)

		Royal Courts of Justice Strand London WC2 Friday, 23rd March 2001

Friday, 23rd March 2001

1. LORD JUSTICE SCHIEMANN: Lord Justice Sedley will give the first judgment.
2. LORD JUSTICE SEDLEY: This is an appeal from a decision of Turner J, given on 23rd May 2000, upon a statutory appeal under the Tribunals and Inquires Act, section 11, from a Special Educational Needs Tribunal. It comes before this court by permission of Rix LJ on a single short but by no means easy point.
3. The appellant's child, "J", is gravely handicapped both mentally and physically. He is statemented as in need of special schooling. Until 1999 he was at Fairfields School, which was the school named in Part 4 of his statement; but in July of that year he had a serious accident there resulting in a skull fracture by reason, in his parents' belief, of the staff's neglect of his safety. In short, what happened was that his wheelchair overbalanced causing him injuries which required intensive hospital care. It was, moreover, the third accident to happen to him in spite of assurances that had been given after the first two. J has not returned to school since.
4. It was accepted that he needed a change of school. The Local Education Authority, the first respondent, proposed Highfields, but the parents objected because they considered its regime similar to that of Fairfields where the three earlier accidents had occurred. The parents proposed Hollybank instead, but the Local Education Authority stood firm, as it was entitled to do, and the matter went before a Special Educational Needs Tribunal. The tribunal in its decision, issued on 22nd December 1999, upheld the Local Education Authority's choice on the ground, in short, that both schools were suitable to J's needs, but Highfields a great deal less expensive.
5. It emerged subsequently that, through nobody's fault, the Local Education Authority had failed to draw the attention of either the tribunal or J's parents to the fact that in 1993 an accident which on one view was not dissimilar had occurred to another child, Daniel, who had been allowed to tip forward on to his face in spite of being strapped in a wheelchair. The whole story is tinged with sadness because Daniel has since died. Daniel's mother's account of it is, in its material parts, as follows:

"On 16th March 1993 in circumstances that are still not absolutely clear Daniel was tipped from the chair into which he was strapped. The response of the school at that time was to ring me to say 'not to worry' but I arranged to take him straight to the surgery of our GP."

6. It was the GP's view that the injuries were, though visibly unpleasant, were superficial. But the mother's statement goes on to describe how thereafter Daniel's health declined to the extent that in the summer of 1995 hospital investigation revealed that he in fact had suffered a neck fracture in 1993. She goes on to describe how in the interim between the accident and the full diagnosis she had sought various medical investigations and had met the professionals at Highfields School because Daniel was in a slow but steady decline. She says:

"It would be fair to say that in the course of these 18 months or so the attitude of teachers at Highfields School in general was that I was an over-protective mother, too concerned for Daniel's progress and not concentrating enough on his lack of co-operation which was seen as a behavioural problem attributable to Daniel."

7. She goes on to record that once the full diagnosis was made the headteacher had written to express his sincere regret.
8. The Local Authority put in evidence before the judge which expressed sympathy for Daniel and his mother, but said:

"I understand from the Council's records that Daniel had been on a school visit and on returning to the school, a student teacher was assisting in the unloading of children from the bus. The student was holding Daniel's wheelchair and another mobile child and it was when the other mobile child pulled away that Daniel's wheelchair fell over."

9. The statement goes on to take issue whether it was this that caused the spinal fracture that was later diagnosed.
10. It was taken by Turner J as common ground that the omission of the facts about Daniel should not have happened – in other words that both the parents and the tribunal should have known of it. The necessary implication of such a concession might be thought to be that a rehearing is called for, since something material - that is something capable of having influenced their decision - has been omitted. It is no doubt for this reason that before us Mr Lewis has been careful to modify the concession in order to accommodate his entirely appropriate argument on relevance.
11. The fact that comparative safety was material to the tribunal's decision was made clear enough by the fourth of their final conclusions:

"We have great respect for the devotion and care which [the parents] clearly have for their son, and we noted carefully their perception of being let down by the LEA as regards their son's safety, following his accident at school earlier this year. It is not for us to form any view on the merits of how that accident occurred; our sole concern in relation to the accident is whether J's safety would be properly looked after at Highfields School. We are so satisfied, noting in particular the fact that no serious accident has occurred to pupils at Highfields School and also noting the favourable comments on safety procedures at the school in the recent Ofsted report."

12. The tribunal earlier in their decision had expressed their reliance upon the impressive evidence given by the headteacher of Highfields, Mr Ware, who has been in post since early 1998. They say in particular:

"On the question of safety, Mr Ware cited the findings of the most recent Ofsted inspection, which was carried out in May 1999. The report as a whole was very favourable to the school, an in regard to safety procedures the findings were favourable in every respect. Mr Ware added that none of his pupils had been involved in a serious accident at the school."

13. In his judgment Turner J said at paragraph 37:

"There can in my judgment be no doubt but that it was material for the Tribunal to consider not what was the position seven years before, or five years before, or even three years before, but what was the current position at the school."

14. Later in paragraph 41, he said:

"I have to counsel myself against falling into the trap of taking the decision which the decision-maker would himself have made, had he been apprised of the accidents in 1993. It has been generally accepted by those on behalf of the LEA, that the matter ought to have been disclosed. [That is the position which has been qualified before us]. With that, I find myself to be in full agreement. But the true question which arises here is not whether, in the interests of ultimate fairness, that matter should have been disclosed, but whether that matter was relevant to the decision which the tribunal had to reach."

15. It was on that footing that he answered the question in the negative and dismissed the appeal before him.
16. There are two other elements of the evidence to which it is necessary to refer. Before the tribunal, as I have indicated, the headteacher had said that none of his pupils had been involved in a serious accident at the school. This is something which has not attracted direct criticism of that headteacher because for him it was undoubtedly true. Whether it was conclusive as to the earlier history remains in doubt; but it is a doubt which, in my judgment, has to be resolved according to the same question as we are addressing in the appeal, namely whether there was relevant evidence of an earlier accident at the school. Secondly, the chairman of the tribunal himself, Mr Dorsey, as is normal for an interested party in statutory appeal, deposed in a short statement to the court as follows:

"If an accident had occurred at the school in 1995 [he means 1993], this was clearly evidence that the tribunal should have known about. However, I do not feel on balance that any such evidence would have outweighed the regime at Highfields School which we were told about by Mr Ware, especially with regard to safety. I accept that in conclusion D [the one I have quoted] of the Tribunal's decision we noted the fact that no serious accident had occurred to pupils at Highfield School, but we also noted the favourable comments on safety procedures at the school in the recent OFSTED report... I can confirm that the Tribunal was satisfied on the day that the present set-up at the school was a good one and that it provided all the proper resources, both staffing and physical, to guard against accidents."

17. It is necessary, I think, to say that, while without doubt the tribunal has standing in these proceedings, it is not appropriate for its chairman to express in a case like this his own view as to what the outcome would have been had the contentious evidence not been omitted. For reasons to which I shall come in a second, this is an entirely legitimate matter of legal argument. The argument, however, turns not on what the decision-maker may with hindsight say he would have made of the evidence but on the objective question whether the evidence was capable of having made a difference. What the chairman's testimony has unfortunately done is make it impossible, should we conclude that there has been a material exclusion of evidence, simply to send the case back to the same tribunal so that it may reopen its findings and review its conclusions in the light of the further evidence. Were this now to be done, there would be a legitimate concern that the chairman, at least, was already committed to a particular outcome.
18. It is also necessary to say – and Mr Lewis' submissions have been alive to this fact - that the first sentence of the paragraph I have quoted from the chairman is logically inconsistent. If indeed, as he says, the information ought to have been disclosed, it can only be because it was capable of affecting the outcome; and yet in the same paragraph he goes on to express the view that, at least in the event, it would not have affected the outcome.
19. I turn, therefore, to the single question before us. The legal nature of the parents' case can be put in either of two ways: a material factor has been omitted from the tribunal's consideration; or the family have been denied a fair hearing. Both are familiar propositions of public law. I do not think that the endeavor to enhance the argument by reference to Article 6 of the European Convention on Human Rights adds anything material in the present context. It brings us back, as Mr Friel I think was content to accept, to well-established principles of domestic law, and it is upon that basis that it seems to me we should approach the case.
20. If there is an answer to Mr Friel's complaint, it has to be (and Mr Lewis pitches his camp upon this terrain) that the evidence of the earlier accident could not have made a difference to the tribunal's decision. As I have said this is not a topic for ex post facto evidence. Nor, with respect, is to be tested, as Turner J appears to have tested it in refusing permission to appeal, by asking whether the decision was likely to have been influenced by the omitted information. The question is whether the information could have made any difference. The answer to it may turn on law – for example it may not have been legally relevant or admissible – or on fact – for example because it was on any view inconsequential or incapable of disturbing the weight of evidence going in the other direction. If it was relevant, or if ignorance of it was a source of unfairness, then it is only exceptionally that relief will be denied. The reasons for this are classically found in the remarks of Bingham LJ, as he then was, in R v Chief Constable of the Thames Valley Police ex parte Cotton [1990] IRLR 344 at 60. I will not recite them, but they are to be borne in mind in every case in which a breach of fair or proper procedure is established but it is asserted that the breach has made no difference.
21. Here, however, both Mr Lewis and Mr Friel have, in my judgment, wisely and helpfully premised their argument not on questions of discretion or relief but on the single question: is there a realistic possibility that knowledge of the 1993 accident to Daniel could have altered the tribunal's conclusion that in 1999 it was the right school to name in Part 4 of J's statement.
22. Mr Friel submits that it may have been a relevant fact that the present headteacher, albeit a recent appointee, knew nothing of the 1993 accident. He submits that it may also have been relevant that the school in response to it had been defensive, as the mother thought, rather than constructive; that the mechanism of the accident was capable of recurrence; and that this was especially so in the light of J's own series of three accidents at Fairfields where apparently a similar system to that at Highfields was in place. He founded on this court's decision in the case of W v Special Educational Needs Tribunal Times 12th December 2000, a case in which the omission of material which might have made a difference resulted in the quashing of a Special Educational Needs Tribunal decision.
23. Mr Lewis submits that, in spite of the chairman's acceptance that there was an omission of evidence that should have been before them, the tragic event of Daniel's accident was so far in the past as to have no useful bearing, especially in the light of the occurrence in the interval of not one but two Ofsted inquires and reports on the school, one in 1995 and one in 1999. The one in 1999 which was before the Special Educational Needs Tribunal, and which, as is clear from the passages I have cited from its decision, were accorded primary weight by it, included this at paragraph 41:

"The procedures for child protection and promoting pupils' wellbeing, health and safety are very good. Kirklees' child protection procedures are known to all staff and strictly followed. Health and safety arrangements are good. The presence of the school nurse ensures that first aid provision is very good. The presence of the school nurse ensures that first aid provision is very good. Fire drill takes place termly and the building can be evacuated within the required time. Fire officers and the local authority undertake risk assessment, governors and staff are routinely vigilant, and no health or safety hazards were observed. Lack of space makes it impractical to have permanent lifting equipment in every room, however the school views more hoisting equipment as a priority which would be helpful both to the pupils and staff."

24. Although not without hesitation in the face of Mr Friel's moderate and well presented submissions today, I have concluded that Mr Lewis is right about this. When one looks at how the tribunal approached the question before it, and at the comprehensive nature of Ofsted's then recent findings, it is not realistic to think that the tribunal would have felt able either to give any weight to the history of Daniel's accident in 1993 or to its aftermath, or responsibly to embark upon their own further inquiry into its circumstances and its aftermath so as to see if either or both of the two subsequent Ofsted reports could be faulted. I am sure that they would not have refused to consider Daniel's mother's statement had it been placed before them. But having thought about this with care I am equally sure that the tribunal would not even have begun to be steered by it towards a different conclusion from the one which, in its absence, they reached on the basis of quite compelling evidence.
25. While, therefore, I understand the parents' concern about what has happened, and would accept that it is an entirely legitimate concern, I hope that they for their part will see why there would be no future in a decision of this court which sent the issue back to a fresh tribunal. The outcome would inevitably be the same for the reason which I have given. The omitted information was not, in all the circumstances of this case, capable of having a material bearing on the outcome.
26. For that reason I would dismiss this appeal.
27. LADY JUSTICE ARDEN: I agree that this appeal should be dismissed. The tribunal observed:

"We have great respect for the devotion and care which Mr and Mrs A have for their son, and we have noted carefully the devotion and care which they clearly have for their son."

28. One can well understand that the parents should want the very best for their son, and it is very proper that they should do so. But the question for the court is whether they have a legal remedy in those circumstances and therefore the court cannot grant relief simply to give them another chance of persuading the Special Educational Needs Tribunal that their son should be sent to the school of their choice for him.
29. As I see it the court would have to be satisfied before allowing the appeal that the new evidence which it was found to have been innocently withheld was of sufficient relevance to the issue as to their child. The issue before the tribunal was whether the new school designated by the Local Education Authority could care for him safely, having regard to his particular needs. Within that issue safety is a key consideration. The earlier accident in 1993 involving D could be said to be relevant to this because it involved another accident with a wheelchair and a child of a similar age. But of course so far as the tribunal was concerned they had to consider safety on a much wider and more general basis and to consider the risk of accident from any foreseeable course. Moreover, the tribunal had other evidence before them. They had the evidence of Mr Ware, the headteacher of Highfields School, and the tribunal was clearly impressed by him. They had information about the staff resources at the school, the fact that there was a high staff pupil ratio; there were speech and language therapists and other therapists and a school nurse; that parent and staff relations were good and that there were active steps for parents to keep in close contact with the staff of the school. In addition there was the Ofsted report done in May 1999 covering the period from 1995 which concluded that health and safety at the school were good.
30. In the face of this I agree that the evidence as to the 1993 accident could not be relevant to the issue which the tribunal had to determine. Even if there were no other evidence there would have been very great difficulty in the tribunal doing more than simply taking note of what was said by D's mother about the 1993 accident. They could not investigate that matter or establish where the rights and wrongs lay or the causes of the accident, or reach a conclusion about the professionalism of the staff of the school in the period following the accident, which has been a matter to which submissions have been addressed. I do not therefore think that the accident would have been of any material assistance to the tribunal in deciding the real issue which was, as I say, could this school properly care for D. The fact that an accident had occurred in the past would as I see provide only marginal assistance to the tribunal. So far as one can tell from the brief Times report of W v The Special Educational Needs Tribunal 12th December 2000 that case is distinguishable because the evidence in that case concerning the relevant establishment for which the parents contended was information as to the facilities and resources which that establishment could offer on an up-to-date basis and therefore the court concluded that information was clearly relevant and should have been before the tribunal.
31. In the circumstances I agree with my Lord that this appeal should be dismissed.
32. LORD JUSTICE SCHIEMANN: I agree also that the appeal should be dismissed broadly on the grounds set out in the judgments which have been delivered. I only add something on two matters. First, disclosure of the 1993 accident might well have been good administrative practice in order to show that the authority was being totally transparent. But the fact that an authority makes such disclosure does not necessarily prevent an authority from arguing that it contains nothing relevant to the question that the tribunal has to decide and that further investigation of the accident and what happened thereafter is of no significance in the context of that question. Nor, in my judgment, will it prevent a tribunal from accepting such a submission if it were made. There are degrees of relevance in these cases and the test is not the same for all purposes.
33. The second matter upon which I add some sentences is in relation to the statement of Mr Dorsey, the chairman of the tribunal. He was served with various documents which contained various assertions about what the tribunal considered and what the evidence was before the tribunal, and it seems to me that he quite correctly and sensibly answered those points. I agree with Sedley LJ that it was inappropriate for him to express a view on the outcome of what would have happened if there had been disclosure of the 1993 accident, not least because he does not indicate that he has so much as consulted the other members of the tribunal as to this conclusion. But I hesitate as at present advised to go as far as my Lord in ruling out ex post facto evidence of this kind as being ever admissible. For instance, if in retirement in the present case one member of the tribunal had said, "I thought I had read something about there having been an accident at this school back in 1993, but nobody has mentioned it", and the other two had said and persuaded him that although that was right it was not relevant in any event whatever he had read because it was too along ago, in those circumstances I am not at present persuaded that such evidence would be inadmissible - hence my hesitation. But I agree this appeal should be dismissed.
(Appeal dismissed with costs; costs to be paid by the Legal Services Commission to be assessed; permission to apply to the House of Lords refused).