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Cite as: [2000] EWHC Admin 298

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ELLISON v. HAMPSHIRE COUNTY COUNCIL [2000] EWHC Admin 298 (24th February, 2000)

Case No: PTA & A 99/7041/C

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (QUEEN'S BENCH DIVISION)
ON APPEAL FROM CROWN OFFICE LIST
Royal Courts of Justice
Strand, London, WC2A 2LL
Thursday 24 February 2000

B e f o r e :
LORD JUSTICE BELDAM
and
LORD JUSTICE WARD
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	ELLISON	Appellant
	- and -
	HAMPSHIRE COUNTY COUNCIL	Respondent

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(Transcript of the Handed Down Judgment of
Smith Bernal Reporting Limited, 180 Fleet Street
London EC4A 2HD
Tel No: 0171 421 4040, Fax No: 0171 831 8838
Official Shorthand Writers to the Court)
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Miss T Sedding Mr J Friel (instructed by Coningsbys for the Appellants)
David Wolfe (instructed by Peter Robertson, Winchester, for the Respondent)
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Judgment
As Approved by the Court
Crown Copyright ©

LORD JUSTICE BELDAM: Mr and Mrs Ellison ("the appellants") appeal from the judgment of Mr Justice Tucker of 30th July 1999 by which he dismissed their appeal from the decision of a Special Educational Needs Tribunal ("the Tribunal") given on 28th January 1999. The appellants had asked the Tribunal to amend the statement of special educational needs issued by the respondent Local Education Authority ("the Authority") on 29th July 1998 for their daughter, then 14 years of age, to whom I shall refer as "K". Mr Justice Tucker refused permission to appeal. The appellants renewed their application for permission to this court. We granted the application and heard the appeal. The appellants are the father and stepmother of K who was born on 14th November 1984. At the time of the statement of special educational needs she was 13. Concern had been expressed about her social, emotional and academic development for some time. She had for several years needed support including the help of a psychiatric nurse in 1993, counselling and support from educational psychologists and the Child Guidance Service. She had been living with her mother but in March 1995 quite suddenly she moved to Oxfordshire to live with the appellants. She returned to school in Hampshire in September 1995. She moved to Kings School, Winchester, in September 1997 but in January 1998 she ceased to attend school and received home tuition. The statement of special educational needs originally specified that she should continue to attend Kings School with additional educational support but this proved unsuccessful and it was accepted that her needs called for special educational provision.
At the time of the hearing before the Tribunal the issue between the appellants and the authority had been considerably narrowed. The authority had proposed that her special educational needs could be met at Lankhills School, a residential maintained special school. The appellants proposed that she should attend Grateley House, a residential non-maintained i.e. private special school. The Tribunal concluded that, with additional educational supervision for 10 hours per week, K's special educational needs could be met at Lankhills School. They accordingly ordered that the existing provision in Part 4 of the statement should be deleted and that in its place there should be inserted:
"A local special school with residential accommodation and able to meet the needs of pupils with communication and learning difficulties, Lankhills School."
The judge recorded the grounds of appeal argued before him as follows:
"1. The tribunal erred in law in naming Lankhills School as the provision at Lankhills could not meet Karen's needs as set out in Part 2 of her statement.
2. The confirmation of Lankhills, an approved special school by reason of sections 337 and 242 of the Education Act 1996, was in contravention of those provisions, alternatively in breach of the Education (Special Schools) Regulations 1994;
3. Alternatively the decision was unreasonable;
4. The Tribunal erred in law in deciding that 10 hours extra teaching time was necessary at Lankhills in that it used its own expertise in making the decision and failed to inform either party of its view."
The Tribunal had considered in detail the provision which Lankhills School and Grateley House School could make to meet K's special education needs. It concluded that both schools could meet her needs. As the judge held, the Tribunal's decision on that issue was a decision of fact and expert educational judgment. The Tribunal is specially constituted to make such decisions and they did not give rise to a question of law. Equally the judge said it could not possibly be argued that the decision was unreasonable. The judge further held that the naming of Lankhills did not contravene the provisions of the Education Act 1996 nor was it in breach of the Education (Special Schools) Regulations 1994. He rejected the complaint that the decision to provide 10 hours extra educational support was reached in breach of natural justice.
Before this court Mr Friel for the appellants argued that the judge had erred in law because he ought to have held that the tribunal had no power to approve the placement of K at Lankhills School. Lankhills School could not lawfully accept K nor could the Tribunal approve the placement of K at Lankhills School. To do so would be contrary to the category of special educational provision for which the Department of Education and Employment had approved the school. The judge erred in law in holding that the tribunal did not act unfairly in failing to explore with the parties the amount or type of extra provision to be made.
To understand the basis of Mr Friel's first two submissions it is necessary to set out in some detail K's special learning difficulties identified by the Authority and by the Tribunal and the relevant statutory provisions.
K's Special Educational Needs.
K had been diagnosed as suffering from Asperger's Syndrome, a form of autism, coupled with an attention deficit hyperactivity disorder. She was of average ability, though underperforming in some subjects. Her intellect was within the average range. However she had psychological difficulties and her mental condition was said to be fragile. As might be imagined, extensive reports had been obtained which disclosed that she was of average intelligence and her reading and spelling were broadly at a level appropriate for her age. Relative areas of weakness were noted in visual organisation and problem solving, mental arithmetic, auditory and visual short-term memory. As an instance of her learning difficulties, she could not remember the sequences in which to work out a sum or her times tables, and it was said that a teacher could sit with her for hours teaching her a specific area of maths but she still might not grasp it. If she did, the next time she did an exercise of the same sort it was as though she had never done it before. On the other hand she excelled in anything creative like art, pottery, etc., enjoyed French, but had great difficulties in physical education. However she was an excellent swimmer and had an obsessive interest in horses. She needed support and teaching in relation to social, emotional and pragmatic communication difficulties through individual, small group and PHSE classes. Overall it was thought that she would require an educational environment where she could benefit from access to the full national curriculum, with some modifications or disapplications.
The Schools.
Both schools were residential. Grateley House specifically provided for pupils with attention deficit hyperactivity disorder and Asperger's Syndrome. There were also pupils with Tourette's Syndrome, dyslexia and dyspraxia. The pupils were of broadly average ability, the school offering GCSE courses for more able pupils. The aim of the school was to offer a 24 hour curriculum. The cost of a place at the school was £50,334 per annum.
Lankhills School was closer to K's home, had a residential facility and met the needs of pupils with communication and moderate learning difficulties. There were pupils in the school with autistic spectrum disorders, 4 or 5 pupils had Asperger's Syndrome and 3 or 4 suffered from attention deficit hyperactivity disorders. There were 80 boys and 50 girls there aged 11-16. The residential facility was for 24 pupils. The teachers working at Lankhills had been trained to teach and had experience of working with pupils with autistic spectrum disorder. The academic opportunities available at the school might not be fully commensurate with K's potential but her curriculum could be differentiated and additional work provided by an individual programme with a specialist teacher. She would be able to pursue GCSE courses at a neighbouring mainstream school.
The school was approved by the Secretary of State for 181 boys and girls aged 11-19 with moderate learning difficulties.
In this appeal Mr Friel has focused on the terms of this approval. He argues that, since K's intellectual functioning was within the average range, she could not be regarded as having "moderate learning difficulties". Thus neither the Authority nor the Tribunal could validly specify a school which was approved only for such learning difficulties. Moreover the school could not lawfully accept her as a pupil.
The Legislation.
The relevant statutory provisions are contained in Part IV of the Education Act 1996:
"Section 312 -:
(1) A child has "special educational needs" for the purposes of this Act if he has a learning difficulty which calls for special educational provision to be made for him.
(2) Subject to ... a child has a "learning difficulty" for the purposes of this Act if -
(a) he has a significantly greater difficulty in learning than the majority of children of his age,
(b) he has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area of the local educational authority, or
(c) ...
(3) ...
(4) In this Act "special educational provision" means -
(a) in relation to a child who has attained the age of two, educational provision which is additional to, or otherwise different from, the educational provision made generally for children of his age in schools maintained by the local education authority ..."
A child with special educational needs is normally to be educated in mainstream schools provided this is compatible with his receiving the special educational provision which his leaning difficulty calls for and the provision of efficient education for those pupils with whom he will be educated and it is consistent with the efficient use of resources.
Further, by section 319, if the local education authority is satisfied that it would be inappropriate for special educational provision which a learning difficulty of a child in their area calls for or any part of any such provision to be made in a school, they may make arrangements for its provision or for the provision of part of it to be made otherwise than in a school.
Sections 321-326 make provision for the identification and assessment of children with special educational needs.
By section 324 if in the light of an assessment it is necessary for the local education authority to determine the special educational provision needed for a learning difficulty, the authority must make and maintain a statement of the child's special educational needs. By subsection (2) the statement is to be in a prescribed form and in particular section 324(3) provides:
"In particular, the statement shall -
(a) give details of the authority's assessment of the child's special educational needs, and
(b) specify the special education provision to be made for the purpose of meeting those needs, including the particulars required by subsection (4).
(4) The statement shall -
(a) specify the type of school or other institution which the local education authority consider would be appropriate for the child,
(b) if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution ... which they consider would be appropriate for the child and should be specified in the statement, and
(c) specify any provision for the child for which they make arrangements under section 319 and which they consider should be specified in the statement.
(5) Where a local educational authority maintain a statement under this section, then -
(a) unless the child's parent has made suitable arrangements, the authority -
(i) shall arrange that the special educational provision specified in the statement is made for the child, and
(ii) may arrange that any non-educational provision specified in the statement is made for him in such manner as they consider appropriate, and
(b) if the name of a maintained, grant-maintained or grant-maintained special school is specified in the statement, the governing body of the school shall admit the child to the school."
Section 325 gives a right of appeal to the Special Educational Needs Tribunal.
Chapter II contains the requirements for approval by the Secretary of State of schools specially organised to make special educational provision for pupils with special educational needs.
The procedure for establishing such schools and for the approval of a Local Authority's proposals by the Secretary of State is set out in Sections 339-342.
Section 342 gives the Secretary of State power to make regulations to be complied with as a condition of approval and regulations setting out the requirements to be complied with by a school while it is approved.
The Regulations.
The relevant regulations are the Education (Special Schools) Regulations 1994. By Regulation 6 a special school other than a non-maintained special school is required to comply among other requirements with the requirements in paragraph (1) of Part I of the Schedule. Part I of the Schedule sets out the conditions of approval and continuing requirements under the rubric "Special Educational Provision":
"Regulation 1(1):
The arrangement as respects -
(a) the pupils for whom provision is made categorised by reference to -
(i) the number, age and sex of day and boarding pupils respectively, and
(ii) their respective special educational needs, and
(b) the special educational provision made for those pupils,
shall be such as have been approved by the Secretary of State."
Conditions of approval and continuing requirements are contained in Part 1 of the Schedule Requirements. Paragraph 7 states:
"No pupil shall be admitted to the school unless he falls within the category specified in the arrangements mentioned in paragraph 1 which are for the time being approved for the purposes thereof (`the approved arrangements') and the special educational provision made in pursuance of those arrangements shall be suited to the pupils of the school (having regard to their different ages, abilities and aptitudes and, in particular, special educational needs) and shall be efficiently provided."
And by paragraph 8:
"The number of the pupils at the school shall at no time exceed the number specified in the approved arrangements."
The Tribunal's Decision.
In its clear and detailed reasons the Tribunal said:
"2. K---- is capable of functioning intellectually within at least the average range. She has been diagnosed as having an attention deficit hyperactivity disorder (ADHD) and Asperger's Syndrome. She has virtually obsessive interests in horses and sexual matters. Her preoccupation with sexual matters results in her being potentially vulnerable. She has some difficulty in understanding instructions and does not always use language appropriate [sic]. She has poor social skills and does not easily establish relationships with peers or adults. She has literacy skills which are broadly appropriate. She has greater difficulty with maths."
The Tribunal recorded that the central issue upon which the parties were not agreed was the school that K should attend. The Tribunal then considered how far each of the competing schools could make provision for K's special educational needs. The evidence before the Tribunal was that Lankhills met a wide range of complex needs; that the school had experience of meeting the needs of pupils of average general ability; that some of the present students were working towards Level 3 and 4 of the National Curriculum; that there were pupils at the school with autistic spectrum disorders, some with Asperger's Syndrome and some who had been diagnosed as ADHD. Detailed evidence was given to the Tribunal of the proposals to meet K's special educational needs at Lankhills School. Mr Wakelam, the head teacher, acknowledged that generally the academic opportunities available to K might not be fully commensurate with her potential. But he said that, if appropriate, her curriculum could be differentiated and extension work could be provided by an individual programme devised by a specialist teacher from the authority's central resources. She could, if she reached the required standard, pursue GCSE courses at a neighbouring mainstream school. He was convinced that the school could meet all her needs.
I have cited in some detail from the Tribunal's decision to show that the members of the Tribunal were well aware of K's learning difficulties and of her special educational needs. In his argument for the appellants Mr Friel concentrated on K's abilities as shown by intelligence testing. He argued that K was not within the category specified in the arrangements approved for Lankhills School ("moderate leaning difficulties"). Paragraph 7 therefore precluded her admission to the school.
The evidence before the Tribunal showed that K had learning difficulties as defined in section 312(2) of the Act. She was unable to concentrate and in certain respects lacked comprehension. It was for the Tribunal to assess the nature and extent K's learning difficulties and whether they were properly regarded as "moderate". With two members experienced in education, the Tribunal was well qualified to make such a judgment. A measurement of intelligence quotient does not determine the extent of learning difficulties. This is made clear by the terms of section 312(2) of the Act. In my view the submission that it was unlawful for the Tribunal to specify Lankhills School because paragraph 7 of the Schedule to the Regulations precluded it is ill-founded. Mr Friel relied on the decision of Sunderland -v- P & C [1996] ELR 283. It decided a different point namely whether, if a child was outside the range of the ages for which the school was approved, he could lawfully remain there, a question of the construction of the Regulations calling for no exercise of judgment by the Tribunal.
Mr Wolfe for the respondent submitted that in any event no useful purpose would be served by allowing the appeal and remitting it to the Tribunal because, from 1st September 1999, the Education (Special Schools) Regulations 1994 were revoked and the restrictions relied on by the appellant as precluding the Tribunal from lawfully naming Lankhills had been removed. In the light of my conclusion it is unnecessary to express an opinion on this argument.
In my view Mr Friel's second ground of appeal also fails. In the first place the statement of special educational needs prepared for K expressly made provision to meet needs and objectives which included "10 hours per week special needs assistance and 2 hours per week qualified teaching support to be provided". It is true that at that time the proposal was that K should attend a mainstream school and it did not follow that additional provision would necessarily be needed at Lankhills.
In their evidence the appellants said that K needed considerable supervision outside school hours. It was also clear from her previous school reports, as the Tribunal said, that she required supervision during non-teaching time. Further the Tribunal heard evidence that individual tuition could be provided which, if she reached the appropriate standard, would enable her to take GCSEs. Further it must have been apparent to counsel that under section 319 the Tribunal could consider a special educational provision provided otherwise than in schools. The suggestion that the appellants had no proper opportunity to deal with this aspect of the provision made by the Tribunal has no basis. The position was entirely different from that in White -v- Ealing Borough Council [1998] ELR 319 on which Mr Friel relied.
For these reasons I would dismiss this appeal.
LORD JUSTICE WARD: I agree.
Mr Justice Tucker: with costs: Appeal dismissed
Order: Nisi against Legal aid fund with nil contribution, Legal aid taxation.
(Order does not form part of approved judgment).