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Cite as: [1999] EWHC Admin 827

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Mrs. T. VU V London Borough of Lewisham and Special Education Needs Tribunal [1999] EWHC Admin 827 (2nd December, 1999)

CASE NO: CO/1590/1999
IN THE HIGH COURT OF JUSTICE
QUEENS BENCH DIVISION
CROWN OFFICE
ROYAL COURTS OF JUSTICE
STRAND, LONDON, WC2A 2LL
31^st July 2000

BEFORE:
HIS HON MR JUSTICE RICHARDS
-------------------

Mrs. T. VU
V
1. London Borough of Lewisham
2. Special Education Needs Tribunal
____________________
(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
____________________
MR J. FRIEL (instructed by Messrs Conningsbys) appeared on behalf of the Applicant
THE RESPONDENT did not appear and was not represented

Judgment
As Approved by the Court
Crown Copyright ©
MR JUSTICE RICHARDS:
1. This is an appeal from a decision of a Special Educational Needs Tribunal in March 2000 on an appeal from a decision by the London Borough of Lewisham as to the terms of a statement of special educational needs in respect of the appellant's son, Cuong. The appellant is Cuong's mother. She and her family are Vietnamese and do not have a command of English, a fact which lies at the heart of this case.
2. I can deal very briefly with the background to the appeal. Cuong was born on 10 September 1994 and is autistic. A final statement of his special educational needs was made in May 1999. An appeal against that statement was brought in August 1999. Between the date of the appeal and the date of the Tribunal hearing there were important changes in circumstances. At the time of the statement Cuong had been attending the Akwaaba Centre. In September 1999 the appellant was informed that he could no longer attend the Centre. Cuong then spent some months at a Pupil Referral Unit. The appellant sought a placement for him at Griffin Manor, but just before the Tribunal hearing fixed for 2 December 1999 an expert report was received to the effect that Griffin Manor would not be suitable. The hearing was adjourned to enable an alternative placement to be found. Cuong was assessed for the Helen Allison School, one of the schools operated by the National Autistic Society. In the light of that assessment the school offered a day placement to Cuong from January 2000. Lewisham eventually agreed to this and Cuong started at the school on 26 January. Discussions followed between the appellant's representative and Lewisham concerning the detailed content of parts 2 and 3 of the statement. By the date of the adjourned Tribunal hearing on 2 March 2000 agreement had been achieved. Further modifications were agreed during the hearing. In the result only two issues were left for resolution by the Tribunal.
3. The Tribunal decided one of the outstanding issues in the appellant's favour and it is no longer of concern. The Tribunal decided the other against the appellant and it is that issue which is the subject of the further appeal to this court. The issue relates to what is described as "interpreting support". The appellant sought an amendment to part 3 of the statement so as to add the following to the statement of special educational provision:
"Interpreting support to enable parents to contribute to planning initial programmes, participating in termly review/consultative meetings and the Annual Review. Support to assist with preparation, the actual meetings and the implementation of proposals."
4. The appellant's case for the provision of interpreting support was, in summary, that the school needed to work with Cuong's family in order to make its educational programme effective, yet none of Cuong's family spoke English and no-one was available to translate adequately at home; an interpreter was therefore essential. Interpretation had been provided through a voluntary support worker, but funding for that was being withdrawn. Lewisham contended that interpreting support could not be regarded as an educational need. The Tribunal gained the impression that the appellant's representative had not tried to persuade them to the contrary, but in a witness statement before this court she firmly denies that. In any event what matters is that the Tribunal accepted Lewisham's contention. It concluded:
"We do not regard 'interpreting support', however much it is desirable or needed in this case, as educational provision. We do note that the LEA has been told that interpreting services can be made available to Ms Vu to enable her to contribute to and participate in the termly school review including the annual review. We have no jurisdiction to include this or more in Cuong's statement."
5. In a short affidavit filed for the assistance of the court, the chairman of the Tribunal has confirmed that the Tribunal's decision was taken on the basis that the interpreting support sought by the appellant was not educational provision which the Tribunal could order under part 3 of the statement; and the Tribunal concluded that it did not have jurisdiction to order specific provision in part 3 which did not accord with one of Cuong's special educational needs under part 2. The view taken by the Tribunal is neatly summarised in the chairman's observation in his affidavit that the interpreting support sought by the appellant was "support for the mother" rather than for Cuong.
6. Mr Friel, for the appellant, submits that the Tribunal erred in law in reaching that conclusion. There are two limbs to his case. He submits first that the interpreting support sought by the appellant was properly to be regarded as special educational provision, since it arose from Cuong's special educational needs and was on true analysis support for Cuong, not for his mother. His second and alternative submission is that Lambeth had a discretion under s.324(5)(a)(ii) of the Education Act 1996 to provide interpreting support as non-educational provision and that the Tribunal, in determining an appeal, was placed in the shoes of the authority and had the power to exercise the same discretion as to non-educational provision.
7. Neither the Tribunal itself nor Lewisham has appeared or been represented before me. It has therefore been left to Mr Friel to satisfy me in their absence that the appeal is well founded. He has succeeded in satisfying me on the basis of his first submission. In the circumstances I have not thought it appropriate to go on to consider the second submission, interesting though it is. It is a point best decided after full argument.
8. Mr Friel does not contend that an interpreter or interpreting support would normally count as special educational provision. However, I accept his submission that it does so in this case because of Cuong's particular special educational needs and the nature of the school's programme for meeting those needs. Part 2 of the original statement includes the following:
"Cuong's language is severely delayed in both English and Vietnamese and he has been diagnosed as having difficulties on the autistic spectrum. Formal assessment of Cuong's cognitive skills was very difficult because of both his language delay and his limited concentration, but it is clear that he is experiencing significant delay in all areas, with relative strengths in his fine and gross motor skills.
Cuong communicates mainly through gestures and sounds. He has a range of repetitive behaviour, with particular difficulties in eating, drinking and sleeping. Cuong has no sense of danger, and can become very angry when he is frustrated. He is able to make some choices.
Cuong has difficulty in:
* communicating with others
* developing his early learning and play skills
* interacting appropriately with his peers
* maintaining eye contact
* coping with change
* understanding what is going on around him and what he is supposed to do
* concentrating
* consistently behaving appropriately
* understanding danger"
9. The agreed amendments to part 2 add to the definition of his communication disorder and reinforce the nature of the problem. In particular, a new paragraph states:
"Cuong can demonstrate communicative intent but his language is severely delayed in both English and Vietnamese. He has been diagnosed with autistic spectrum disorder and at recent psychological testing showed that he can become frustrated if he cannot undertake a task or if he is uncertain, which is typical of intelligent autistic children. Despite Cuong's intelligence he is not yet able to incorporate people easily into his world and cannot yet use language to engage with others. The signs of emerging recognition indicate that he is poised to break through into a social world."
10. The admission assessment for the Helen Allison School develops upon those points. It places emphasis, for example, on Cuong's very limited skills in social interaction and social communication, and on the ways in which the school would seek to develop those skills. In this connection Mr Friel has pointed out that autism is described as a triad of impairments, in communication, social interaction and imagination, and that one of the keys to development is generalisation out of the school environment and into the home and wider society. It is in that connection that proper liaison between the school and the family is so important. Cuong's placement is a day placement, not residential, yet the educational programme needs to be extended into the home in order to make it work. That extension into the home cannot succeed if the school and the family are unable to communicate by reason of a language barrier.
11. These matters are further explained and illustrated in a witness statement of Patricia Smith, Deputy Principal of Helen Allison School, who also gave evidence before the Tribunal. I have found her statement very compelling and will quote a number of passages from it:
"The [school] prospectus itself makes it clear that links with parents are essential as are the parental contributions to parent meetings and annual reviews. However to limit the school's participation with a parent to annual reviews and parental meetings to discuss progress would be to misunderstand the nature of all education but particularly education for autistic spectrum disorders where social communication is one of the main elements of the triad of autistic impairments which needs to be approached, developed, and generalised to maximise the individual child's chance of independence and success in life.
...
The current position explains why an interpreter is essential. The school try and communicate with all parents as much as possible and that is made clear from the brochure .... It is our policy to link with parents so that children do not compartmentalise the proceedings at school but instead generalise their learning into everyday life.
A major problem with autism, is that it is often a difficulty that children do not generalise skills learnt at school into everyday life and therefore they are disruptive at home and disruptive in society. It is part of the specialist education we provide and part of our policy to ensure that generalisation takes place.
We therefore have to work with the home towards the same end and carrying out the same programmes with regards to communication and/or behaviour. Social interaction is a well known problem for all autistic children and is the second of the triads of impairment.
....
Cuong can use words and we can exploit his ability to communicate. We cannot do this effectively at the moment because complicated concepts are not understood by Ms Vu or indeed Cuong's siblings who can read some English. Further we are using the Picture Exchange System which uses symbols and photos to develop communication. In order to use the Picture Exchange System effectively and to generalise, it must be explained to the parent and it is then used by the parent at home as well as at school. The Picture Exchange System nationally known as 'PECS' requires explanation and use both at home and at school. Of course this simply cannot be done at the moment."
Although that practical experience to some extent post-dates the Tribunal's decision, in my view it can be taken into account as illustrating the nature of the problem in this case.
12. On those facts I am satisfied that the interpreting provision sought by the appellant in this case counted as educational provision for Cuong's part 2 needs and that the Tribunal erred in law in holding to the contrary. It is a mistake to categorise such provision as support for the mother rather than for Cuong himself. The mother and other members of the family have a vital role to play in the educational provision for Cuong, for the very reason that the school's programme extends into the home and has to extend into the home if it is to be effective. Communication between Cuong's family and the school is part and parcel of the educational provision for Cuong's needs. Interpretation for the purpose of enabling such communication to take place is equally to be regarded as part and parcel of the educational provision.
13. Mr Friel has referred me to the discussion in London Borough of Bromley v. SENT [1999] ELR 260 at 295-6 concerning the meaning of "special educational provision" and the difference - and overlap - between educational provision and non-educational provision. The view that I have reached that interpreting support counts here as educational provision seems to me to be consonant with the court's observations in that case.
14. Accordingly I hold that the Tribunal's decision on this point was in error and that its decision must to that extent be quashed.
15. There remains the question whether I should remit the matter to the Tribunal for reconsideration or should exercise the power of this court to make an order itself as to the amendment of part 3 of the statement.. The fact that Lewisham has not appeared on this appeal makes me hesitant to exercise the latter power. But I can see no objection of substance to the appellant's proposed amendment and I see great merit in avoiding a further Tribunal hearing and further delay. It appears that before the Tribunal the only point raised by Lambeth on the appellant's proposed amendment was whether interpreting support counted as educational provision at all. No point was taken on the actual wording or content of the proposal. Moreover the responsible nature of the appellant's proposals as a whole is shown by the fact that all the other amendments were agreed between the parties or ordered by the Tribunal. In all the circumstances I have decided to exercise the court's power to order an amendment.
16. I will therefore (i) quash the Tribunal's decision in so far as it declined to order part 3 of the statement to be amended to include the following wording, and (ii) order part 3 to be amended to include the wording:
"Interpreting support to enable parents to contribute to planning initial programmes, participating in termly review/consultative meetings and the Annual Review. Support to assist with preparation, the actual meetings and the implementation of proposals."
17. No order for costs is sought against the respondent. There will, however, be an order for assessment of the appellant's costs for legal aid purposes.
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MR JUSTICE RICHARDS: I am handing down a judgment in this matter for the reasons given in the judgment handed down. The appeal against the decision of the Special Educational Needs Tribunal is allowed.
In addition, although no order for costs is sought against the respondent, there will be an order for detailed assessment of the appellant's cost for legal aid purposes.
MS HAY: My Lord, I am grateful. I need not make any applications in the circumstances.
MR JUSTICE RICHARDS: Thank you very much for being in attendance, Ms Hay.