England and Wales High Court (Administrative Court) Decisions

1. MR JUSTICE LAWS: This is a statutory appeal brought under the Tribunals and Enquiries Act 1992. It concerns the education of a young boy, whom I will refer to as S, who unfortunately is severely dyslexic. He attended a school called Bishop Fox's community school from the time when he embarked on secondary education at age 11.

2. In his first year at secondary school a gap was noted between his written and oral abilities; and one of the problems of which he has suffered, to put the matter generally, is that he has had great difficulties with spelling. An individual education plan was drawn up in February 1996 when S was in the 9th year. That provided for three 20 minute sessions with a learning support assistant. But that was not to start until June 1996.

3. Then in early 1996 things happened quite quickly. On 19th March he was assessed by an independent chartered psychologist, and a statutory assessment under the provisions of the Education Act 1996 was initiated on 10th June. That is the first step in the procedure which may lend to the making of a statutory statement in relation to a child.

4. The following month, July 1996, S's parents decided that he would not return to Bishop Fox's school in the September term and notified the school to that effect. There was a draft statement under the statute prepared towards the end of the Summer holidays, as I understand it; then in September 1996, instead of going back to Bishop Fox's school he was transferred to the Edington and Shapwick school, a fee paying school registered by the Secretary of State as being available for the placement of statemented children with severe dyslexia.

5. It was on 11th October 1996 that the final statement under the statute was issued in respect of S. I should read some short extracts from part 3: "Special Educational Provision", as follows:

His progress in spelling, reading and mathematics should be closely monitored by the Special Educational Needs Co-ordinator and by the Sommerset Special Educational Needs Support Team who are qualified and experienced in the area of specific learning difficulties.

6. Then on the next page under the heading:

Monitoring

" - To be termly by the school's Special

7. Then under "placement", Bishop Fox's community school is specified.

8. S's parents as was their right launched an appeal to the Special Educational Needs Tribunal against the terms of this statement. The Notice of Appeal was given on 5th December 1996. The appeal was heard on 11th March 1997. The tribunal's decision was given on 11th April 1997 and it is against that decision that this appeal is now brought. As is well known such an appeal may be entertained on grounds of error of law only.

9. It is useful to indicate very briefly what the issues were before the tribunal. As an important part of the background, certainly as it transpired in the tribunal's mind, was the fact that S had been taken from Bishop Fox's school, as it was put by the tribunal, leaving no opportunity to fully implement the programme arising from the formal assessment of S's needs. I will return to that.

10. It may be that this substantially coloured the tribunal's view about the question: how much help should be given to S and how should it be directed? Also this second question: where should the help be provided? These in essence were the issues before the tribunal. In particular the latter was the subject of vigorous dispute. The parents made it plain they did not desire their son to return to Bishop Fox's school.

11. I will turn to the decision in a moment, but I may at once identify the two points that have been argued before me in the course of the statutory appeal. It is said first that by virtue of statutory provisions, to which I will refer shortly, a statutory statement if it is to be lawful must specify the amount of help to be given; and usually or always that will require specification in terms of hours per week. That was not done here, nor was it required by the tribunal to be done. Mr Friel submits on that account that the decision of the tribunal is an unlawful one. They should have required the LEA to provide a statement that met with the statutory criteria.

12. Secondly, it is said that the reasoning of the tribunal is faulty. In particular reliance is placed upon a sentence appearing at paragraph C in the section of the decision headed: "Tribunal's conclusions with reasons":

In the absence of evidence to the contrary the Tribunal concluded that the provisions for [S] at BFS could have addressed all his needs had he been given a chance to settle into the new programme devised for him..."

13. I will travel back over the decision letter to isolate some specific passages that will be material to my determination of these two issues. The decision starts with a recital of the facts of the matter in 25 paragraphs. Paragraph 1 gives some introductory history relating to S; 2 refers to certain problems relating to literary skills with which S had difficulties at primary school. There is a good deal of material in the decision which addresses the problems from which S suffered, and there was evidence available to the tribunal relating to those matters. I should read paragraph 7, for reasons which will become obvious later:

The Learning Support assistant designated by the school (that is BFS) to help [S] is unusual in that she is a qualified teacher with a wide range of additional qualifications. In particular, she in the second year of a RSA Diploma Course relating to children with specific learning difficulties. The school has a number of staff qualified to assist S in addition to assistance from the LEA Support Team."

Mr Biddulph [I should indicate he is a chartered educational psychologist who had prepared a report that was before the tribunal] for the parents gave his recommendation with regard to a suitable level of provision in a mainstream school. He advised:-

5 hours of literacy}

1-2 hours of study skills} per week

2 hours numeracy skills}

20 minutes keyboard training per day."

It was noted that for reasons connected with the structure of the building and the fact that the BFS is a new school, it is easier for BFS to provide the small group withdrawal facilities suggested by Dr Biddulph that it is at Shapwick. However, at Shapwick literacy problems are addressed in all classes."

14. The "Tribunal's conclusions with reasons" then follow, to which I have already briefly referred. I shall need to read most of this section, which is set out in paragraphs numbered by letters of the alphabet:

"A. The members of the Tribunal read the papers before them with care prior to the hearing and have listened to the evidence. The Tribunal were particularly impressed by the quality of information, advice and presentation of the cases of both the LEA and the parents. This greatly assisted in the clarification of [S's] needs and in identifying appropriate provision.

15. I need not read D, E or F.

"G. The Tribunal adopts the amendments agreed between the parties and referred to above as part 2 and 3 of [S] Statements at 17 and 21 above.

1. The LEA makes the amendments to part 2 and 3

16. I should add two postscripts. First, the reference in paragraph G. to "amendments agreed between the parties" concerned certain riders added to the statement which had indeed been agreed between the parents and the LEA, as I understand it, in adjournments during the course of the hearing or certainly during the appeal process. Secondly, I understand it to be acknowledged on all hands that the reference to 11 hours in the last paragraph is an error.

17. I turn then to the first point which I have to decide.

18. Regulations have been made which engage the provisions of section 324, and are material to the question of what must be included in a statement. Paragraph 13 of the Special Educational Needs Regulations 1994 was made under the legislation which preceded the Education Act 1996, but is deemed to have been made under the later Act by virtue of the provisions of the Interpretation Act 1978.

A statement of a child's special educational needs made under section 168(1) [that, of course, would be section 324(1)] shall be in a form substantially corresponding to that set out in part (b) of the schedule, shall contain the information therein specified and shall be bated and authenticated by the signature of a duly authorized officer of the authority concerned."

19. The form in part (b) contains, under part 3 of"Special Educational Provision", a heading:"Educational provision to meet needs and objectives". Then the form requires as follows:

Here specify a special educational provision which the authority consider appropriate to meet the needs specified in Part II and to meet the objectives specified in this part and in particular specify

20. There is another heading also in part 3: "Monitoring"; and there the form imposes this requirement:

Here specify the arrangements to be made for-

Mr Shorrock submits:

21. Schiemann J adds at 347 E continued as follows:

Clearly on any such appeal, [I interpolate that is an appeal to the Secretary of State as was provided for in the then prevailing legislation] in the absence of any specification of the number of sessions which the authority is satisfied will be made available by the health authority, the question can arise how the authority can be sure that the special educational provision made by the authority is adequate.

22. Then on the same page at H:

If in the present case nothing other than a sentence on the lines of '£6,000 is allocated to pay for all P's needs' had appeared in part III of the statement, I would have regarded this as not complying with the requirements of specificity contained in the statute and regulation. The reason for that is that the appeal process becomes impossible to operate if the parent, and

23. Then at 348 between C and F the learned judge, evidently having been asked to make a declaration, indicates his reasons for deciding not to do so and says this:

I have considered whether it is appropriate to make a declaration to the effect that the statute and regulations require in speech therapy cases that the statement specify the number and length of weekly speech therapy sessions so that parents, if they are dissatisfied, can appeal knowing what the appeal is about. There are arguments in favour of making such a declaration, but I have decided on balance that these are outweighed by other considerations. There is a whole spectrum of help which any individual child can receive from variously qualified and unqualified persons so as to help him to achieve the maximum of what he is capable of achieving..."

24. Lastly, I should refer to the Secretary of State's code of practice where in part III towards the end of paragraph 4.28 this appears:

The provisions set out in this subsection should normal be specific detailed and quantified in terms, for example, of hours of ancillary or specialist teaching support although there will be cases where some flexibility should be retained in order to meet the changing special educational needs of the child concerned."

25. In my judgment a requirement that the help to be given should be specified in a statement in terms of hours per week is not an absolute and universal precondition of the legality of any statement. One can appreciate the force of the comment in the guidance. There will be some cases where flexibility should be retained. However it is plain that the statute requires a very high degree of specificity. The main legislation itself (and I refer to section 324(3)(a) and (b)) requires the statement to give details of the child's special educational needs and to specify the provision to be made.

26. The terms of form B in the regulation, part of which I have read, are plainly mandatory and it seems to me that in very many cases it will not be possible to fulfil the requirement to specify the special educational provision considered appropriate to meet the child's needs, including specification of staffing arrangements and curriculum unless hours per week are set out.

27. The real question, as it seems to me, in relation to any particular statement is whether it is so specific and so clear as to leave no room for doubt as to what has been decided is necessary in the individual case. Very often a specification of hours per week will no doubt be necessary and there will be a need for that to be done.

28. In the present case, it seems to me that the statement lacks sufficient specificity. I have already read two paragraphs from part III. As it happens the second of those was qualified by one of the riders agreed between the parties at the time of the appeal; but that does not affect the view I take of the provision made. It seems to me that a requirement that S's progress in spelling, reading and mathematics should be closely monitored, without more, is the first sign that the statement lacks sufficient specificity.

29. The next paragraph requires that S's individual education plan should include regular, preferably daily, individual or small group work and so forth. As it seems to me this, and possibly other provisions made in part III of the statement, might as a matter of language be fulfilled by various forms of provision. Overall, it does not seem to me that the statement is specific as the statute requires.

30. It is possible, though I should emphasis the parents would not accept this, that underlying that difficulty is the fact that, as Mr Frazer-Urquhart for the LEA submitted, that a reason for this is that the statement was made in unusual circumstances. There was not that degree of consultation with the parents and (so far as appropriate) with the boy himself which one would ordinarily expect to find, because the child had been transferred by its parents to the private school in September. I make no comment as to the merits of that action, although it is a matter of very close interest indeed to the parties. I would merely indicate that even if that renders the lack of specificity in the statement entirely understandable, as it may, the duty of the Local Education Authority arising under section 324 of the Act and the regulations cannot be qualified by any such consideration.

31. It seems to me that if in truth the authority were unable to arrive at the terms of a final statement in October 1996 which would have been sufficiently specific, they should not have nevertheless issued one which did not meet the statutory requirements. It seems to me that this first point taken by Mr Friel is well founded.

32. Mr Friel points to the reference in paragraph C of the tribunal's conclusions to the absence of my evidence to the effect that the provisions for S at BFS could not have addressed all his needs. He faults the decision because, as he submits, there was indeed such evidence. He referred me to a whole series of materials. Many of the references to which Mr Friel referred were in the parents' pleadings, in which undoubtedly they took objection to BFS as appropriately serving S's needs. As I understand it, his mother gave evidence before the tribunal, in which no doubt she supported the case that she had made in writing. That was evidence for the tribunal to consider.

33. She summarises the evidence which she would wish to emphasise in paragraph 18 of her affidavit. There she said:

"Furthermore the evidence presented clearly shows that Bishop Fox's school would not be able to make that there was a provision recommended by Mr Biddulph available to [S]. Was presented that Bishop Fox's school would have tremendous problems in arranging provision prior to July 1986",

34. There is some more detail given, however. I may go directly to a passage in the report of Mr Biddulph (to which I have made reference) he says this:

In my opinion, the degree, form and regularity of specialist tuition that is required is very likely to be unavailable within the existing resources of this school, [that is BFS] so I strongly advise Mrs L to exercise her statutory rights by making a formal request to the Local Educational Authority for a full assessment of [S] Educational needs ..."

35. It is true, as Mr Frazer-Urquhart emphasised, that this report was made at a date before the statutory assessment was initiated in this case in June 1996. It was therefore not dealing with the question whether in the light of experience of events already past, BFS was able to make the provision required to be made for S in a statement already in existence.

36. But Mr Frazer-Urquhart does not dispute that it was plainly the duty of the tribunal to take into account other materials summarised by S's mother and to which Mr Friel drew my attention. It was indeed a major theme of the case put forward by the parents that Bishop Fox's school could not properly meet the needs which a lawful statement might indicate were required for S.

37. Mr Frazer-Urquhart submitted that the explanation for the tribunal's reference to a want of evidence in paragraph C of their decision is to be found in the preceding paragraph B, which I have read. That is the paragraph showing the tribunal's concern as to the want of a proper opportunity to implement the programme which arose from the assessment. Implicitly this is a reference to the consequences, as the tribunal may have seen them, of S's withdrawal from the school.

38. Mr Frazer-Urquhart says that the expression "in the absence of evidence to the contrary" merely means that because S did not return to Bishop Fox's school, there was no empirical evidence to the effect that Bishop Fox's school might encounter difficulties in fulfilling the statement. As a matter of fact that seems to me to be correct. But I do not consider that it is plain from the language used by the tribunal that that is what is being conveyed in the decision letter. The duty to give reasons is always of great importance; and perhaps never more so than when a tribunal has to assess the legality of detailed provisions made for a child's education.

39. Mr Frazer-Urquhart refers to paragraph 7 of the factual account given by the tribunal which I have read. He did so because, as he says, there was a dispute whether the learning supporter, there referred to, had the range of qualifications to which the tribunal referred. Mr Biddulph, I understand, took a somewhat different view as to this lady's qualifications as did the LEA.

40. Mr Frazer-Urquhart's point in referring to it is to submit that the tribunal included the paragraph in their decision showing that they must thereby have resolved or intended to resolve that dispute; and that shows that they had paid attention to the evidence given by Mr Biddulph. Likewise in relation to paragraphs 24 and 25, which I will not reread, there are references to Mr Biddulph and the recommendation he had made. True it is that the tribunal clearly had in mind what Mr Biddulph recommended in terms of provision. The paragraphs do not however reflect the comment made by Mr Biddulph in relation to BFS which I have read from his report.

41. I accept that the explanation for the way in which the decision is formulated may indeed be that put forward by Mr Frazer-Urquhart; but, of course, the question for me is whether the decision as it was written explains the basis on which the tribunal arrived at the conclusion that they did. Given their reference to the want of evidence concerning any doubts relating to the BSF school, I do not think that that explanation was properly given. For that reason also I would accept the submissions made by Mr Friel. I apprehend that I have not heard specific argument as to the form of relief. It may be that all that is properly required is an order of certiorari to quash the decision of the tribunal.

42. MR FRIEL: My Lord, it is all actually an order under O.35.

43. MR JUSTICE LAWS: You are quite right, it is not judicial review. Yes, that is absolutely right.

44. MR FRIEL: Although there are provisions in that order which I do not think apply in these cases, I have argued a point together with the tribunal recently about what -----

45. MR FRIEL: Your Lordship, should hear we are agreed on a rehearing the only issue being costs. I would ask your Lordship to indicate to the tribunal that they should arrange that as soon as possible. They do act on such indications and I think we are ad idem on that point.

46. MR JUSTICE LAWS: The order you want is order 55 subrule 7.

Powers of court hearing appeal.

47. MR JUSTICE LAWS: I will remit this case for rehearing by a differently constituted tribunal for rehearing in the light of my opinion, which obviously is contained in the terms of my judgment to which the tribunal will have access no doubt. I am not sure whether I can require it but I will certainly urgently desire that the matter be heard or as soon as possible.

48. MR FRIEL: The words "urgently desire" will suffice. My Lord, I apply for costs.

49. MR JUSTICE LAWS: Do you resist that?

50. MR FRAZER-URQUHART: No, I cannot resist that.

51. MR JUSTICE LAWS: I will make an order for the applicant's costs. Thank you very much.