England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(CROWN OFFICE LIST)

		Royal Courts of Justice Strand London WC2
		7th April 2000

1. MR JUSTICE MOSES: The applicant seeks to quash a decision of the Special Educational Needs Tribunal, dated 14th October 1999. He seeks to do so on the grounds that the Tribunal failed to deal with what they assert to be a crucial issue. That issue was whether the applicant's son, a boy now aged 16, was suffering from Attention Deficit Disorder. If he was so suffering, the questions then arose as to what needs flowed from that condition and how they were to be met.
2. At the heart of the dispute was whether the boy's needs could be met at a local school, Ainsdale High School, or at a residential school, St David's College, Llandudno, Wales, at considerable expense to the local education authority.
3. Facts. On 25th May 1999, there was an Amended Statement of Special Education Needs, in which, under Part II, it was stated that the applicant's son was a boy of good verbal and non-verbal ability, and it was stated that:

"The test scores were not indicative of specific learning difficulties."

4. Under Part IV, the recommendation was that he should be placed at a mainstream secondary school.
5. His parents appealed against that statement in a document dated 8th June 1999. In that appeal, they contended that their son's educational progress had been hampered by significant Attention Deficit Disorder. The local education authority disputed that in a document dated 14th July 1999. In that document, the local authority described the history of the matter and stated:

"... [the applicant's son] has attention deficit and high distractibility, but in our view he does not have Attention Deficit Hyperactivity Disorder."

6. For the purposes of the instant case there is no need to distinguish between Attention Deficit Hyperactivity Disorder and Attention Deficit Disorder.
7. The authority set out its views as to the needs of the applicant's son, and how they could be met at Ainsdale High School. They pointed out the disparity in expense were he to attend at the residential school, St David's College.
8. The parents then responded in a substantial document, again setting out the history and stating:

"The ADHD investigations and Speech Therapy assessment have already been carried out at parental instigation and at considerable expense; the reports are fully detailed and comprehensive."

9. They persisted in their claim that his Special Educational Needs arose from significant specific learning difficulties and:

"... significant Attention Deficit Disorder which interferes with all skills and is made worse in large groups; ..."

10. Then they set out their views as to how those needs could be met, specifically referring to the need for social skills training in a small appropriate group; a social communication programme designed specifically to improve his ability to use socially acceptable ways of communicating his thoughts and feelings; and a clear positive behaviour management programme with fair and consistent behavioural boundaries, all of which were designed specifically to cope with the Attention Deficit Disorder.
11. In support of that response to the local education authority's contentions in relation to the appeal, the applicant annexed reports from experts to make good these assertions. Specifically, he annexed a report which they had obtained from Dr Tucker, a consultant paediatrician. In a report, dated 22nd July 1999, he said that the applicant's son does have an Attention Deficit Disorder as well as dyslexia. He continued:

"This diagnosis should have been made many years ago and most of his subsequent behaviour patterns would have been overcome by now resulting in a much improved school career and behaviour pattern. The family history should never have been overlooked for the indications were present and modern educational methods were available to help and reverse this learning disorder. A's Statementing should have helped most of his problems because surely that is the basis for statementing any child. By providing the extra correct help and support early on in his school career, he would not be in his present predicament. More special tuition was needed and never provided. His Attention Disorder was made worse being in large groups and considerable individual help would more than likely have reversed most of his Attention Deficit problems. The dyslexia needed professional guidance and help which was never forthcoming nor even offered.

I concur with the conclusions expressed by Lisa Blakemore-Brown on pages 15 & 16 of her report. The attitude taken by the educational authorities locally to ignore and inadequately manage his problems is regrettable. The recommendations outlined in her report on page 16 are clear and should be implemented. Medication for his Attention Deficit Order is essential and urgent if he is to be given any chance to create an environment for learning even at this late stage."

12. The report of Ms Blakemore-Brown, a chartered psychologist, was dated 23rd June 1999 and is lengthy. During the course of that report, she diagnoses Attention Deficit Hyperactivity behaviour at pre-school and concludes that he has significant learning difficulties which fall under the banners of dyslexia and ADD. She then makes lengthy recommendations at page 69 of the bundle.
13. In support of their contentions, there was further ammunition in a report from Veronica Connery, a specialist speech and language therapist. She concluded that this boy's communicative ability and pragmatic skills were poor, and that this may be related to ADHD. She spoke of his lack of verbal comprehension and poor auditory memory, his difficulties with social and emotional development and confidence and self-esteem, and made various recommendations, all of which she described as urgent, and in particular that there should be speech and language therapy sessions at a therapist once per week for 45 minutes per session.
14. In a statement before me from the psychologist, Ms Blakemore-Brown, she confirms her view and sets out the evidence that she gave at the Tribunal. At the Tribunal, there was oral evidence not only from her, but also from Mr Smith, the respondent's educational psychologist, who disagreed with the views of the experts to which I have referred.
15. His view, as confirmed in a witness statement before me, was that the applicant's son was not suffering from ADD. He said that:

"A number of the features in a child's behaviour which one would expect to see in the case of a child with ADD were not present."

16. He then amplified that. Further, he said that:

"With regard to the question of speech and language difficulties, none of A's teachers mentioned to me that he was experiencing such difficulties and there was no evidence of them during the course of my assessment."

17. After the hearing, at which the rival views occupied a significant part of the time, the Tribunal's findings were made in a decision dated 14th October 1999. At paragraph 1, they said:

"[The applicant's son] has specific learning difficulties in the areas of literacy and numeracy. He had some difficulties in communication skills and now demonstrates Higher Level Language Difficulties. At school he displayed difficulties in the areas of attention and concentration."

18. At paragraph 3 of their decision, they referred to the views of Ms Lisa Blakemore-Brown, the chartered psychologist, and recorded that she had:

"... emphasised in her oral evidence that [the applicant's son's] main areas of difficulty are in relation to his Dyslexia and Attention Deficit Disorder."

19. They made no further comment at that stage about the disorder.
20. In relation to their conclusions, they found:

"(A) A has specific learning difficulties in the areas of literacy and numeracy. He has some difficulty in communication skills and now demonstrates a Higher Level Language Difficulty. At school he displays difficulties in the areas of attention and concentration. He is hypersensitive to certain sounds and sensitive to peripheral light. He has an above average IQ but is functioning at Level 5 of the National Curriculum in English, Mathematics and Science, which is well below the designated level for his age and intellectual ability. He has problems socially interacting with staff and peers and this together with behavioural problems has resulted in periods of exclusion from school.

(B) A's statement is not sufficiently specific and detailed and the provision he requires is not adequately quantified. [They were referring to the previous statement in May 1999].

(C) Given the time A has been out of school he requires a placement capable of both reassessing his needs and providing immediate appropriate teaching and support.

(D) We accept A has a need for speech and language therapy intervention which should be immediately provided by the LEA. The level of this provision should be considered subject to reassessment of his educational needs. We conclude that in A's case speech and language therapy is an educational need, given his poor existing skills."

21. They made various other findings and ordered that the local authority amend A's statement. In Part II, they repeated their findings. In particular:

"A has specific learning difficulties in the areas of literacy and numeracy. He has some difficulties in communication skills and now demonstrates Higher Level Language Difficulties. At school he displayed difficulties in the areas of attention and concentration. He is hypersensitive to certain sounds and sensitive to peripheral lights ... Given the time A has been out of school he requires a placement capable of both reassessing his needs and providing immediate appropriate teaching and support."

22. They then set out the aims of his provision in Part III, and the nature of that provision:

"(1) Access to a broad and balanced curriculum suitably modified and differentiated to take account of specific learning difficulties.

(2) Specialist teaching which concentrates on developing his literacy skills including a spelling programme using a multi-sensory approach.

(3) An individual mathematics programme.

(4) Intervention from a speech and language therapist.

(5) A programme to develop his social interaction skills.

(6) A clear positive behaviour management programme with fair and consistent behavioural boundaries to help him conform to basic classroom expectations, with input as appropriate, from external professionals with relevant expertise.

(7) Special support to develop study skills.

(8) Opportunities to participate in small group teaching.

(9) Keyboard training and appropriate personal IT, equipment/resources.

(10) Attendance at a specialist resourced mainstream school which will immediately provide: -

(a) One session per week of direct teaching with a specialist teacher holding a qualification in specific learning difficulties.

(b) Two sessions per week in a small group with a Special Educational Needs Coordinator who has been trained to teach pupils with specific learning difficulties.

(c) Four sessions of in-class support over the two week time table from a specialist teacher.

(d) Twenty nine sessions of in-class support from a learning support assistant over the two week time table.

(11) Immediate reassessment by the LEA of his needs with particular reference to Speech and Language Therapy, Attention Deficit Disorder and scotopic sensitivity."

23. Part IV, "Placement", said "Ainsdale High School".
24. Legal framework. By section 326(1) of the Education Act 1996:

"The parent of a child for whom a local education authority maintain a statement under section 324 may -

(a) when the statement is first made,

(b) where the description in the statement of the authority's assessment of the child's special educational needs, or the special educational provision specified in the statement, is amended, or

(c) ...

appeal to the Tribunal against the description in the statement of the authority's assessment of the child's special educational needs, the special educational provision specified in the statement or, if no school is named in the statement, that fact.

(2) ...

(3) On an appeal under this section, the Tribunal may -

(a) dismiss the appeal,

(b) order the authority to amend the statement, so far as it describes the authority's assessment of the child's special educational needs or specifies the special educational provision, and make such other consequential amendments to the statement as the Tribunal think fit, or

(c) order the authority to cease to maintain the statement."

25. It is plain that the Tribunal is under an obligation to give reasons for its decision. But they may be short, and they will be sufficient so long as it is clear as to what the Tribunal decided and, in short form, why they reached the conclusions that they did reach. The authorities for such a proposition are by now well-known, in particular, Latham J said in S v SENT and Westminster County Council [1995] 1 WLR 1627 at 1636B to F:

"... a balance has to be struck between giving effect to the clear intention of Parliament that the requirement of reasons is to be met by a short form document and proper concern that the right of appeal under section 11 of the Tribunals and Inquiries Act 1992 would be emasculated if the document did not at least enable the aggrieved party to identify the basis of the decision with sufficient clarity to be able to determine whether or not the Tribunal had gone wrong in law ...

I consider that the balance is properly stuck by requiring that the statement of the reasons should deal, but in short form, with the substantial issues raised in order that the parties can understand why the decision has been reached."

26. The conclusion and the reasons for it may be obvious. Examples of such cases were furnished to me by Mr Prior, on behalf of the local education authority, in AE and PE v SENT and Surrey County Council [1999] ELR 341 at 348. Keene J rejected arguments by a parent, and pointed out that it was plain in their conclusions that those arguments had been rejected. Similarly, in Baxter v Bristol City Council and Clark [1998] ELR 552 at page 558, it was plain the Tribunal had rejected the parents' aspirations, the parents having recognised that the needs were relatively mild.
27. I find greatest assistance from another authority shown to me by Mr Prior, a decision of Collins J in Staffordshire County Council v J and J [1996] ELR. At page 424, he said:

"This being a lay Tribunal and there being a duty to give reasons only in summary form, it seems to me that the essence of the requirement is that the parties should indeed know why they have either won or lost, as the case may be, and what the tribunal's conclusion has been in relation to the major issues that have been put before it. It may, in certain instances, be perfectly obvious why the tribunal has dealt with a particular discrete issue without necessarily having specifically mentioned it. It is obviously desirable and sensible that the tribunal should in all cases, however briefly, refer to the main arguments that have been put forward and explain, it may be only in a short sentence, why they have decided either to accept or reject the particular submission that is made. The one thing, as it seems to me, that should not happen in these cases is that a fine toothcomb should be used and a detailed dissection made of the reasons given in order to try to tease out an apparent error or inconsistency and to try to assert that full reasoning has not been given. The approach must, in my view, be broader than that, provided always that sufficient reasons are given for the parties to know why they have either won or lost on the main issues that they have put forward."

28. In short, the Tribunal must at least state its conclusion on the main issues and, in short form, why they reached that conclusion.
29. The point in the instant application is whether the Tribunal did make a finding on the essential issue, namely whether this boy was suffering from Attention Deficit Disorder. In ground 1 of the Notice of Motion, it is contended that the Tribunal failed to make any, or any adequate, findings of fact on that issue and failed to determine the same.
30. I note that there is a witness statement from the chairman of the Tribunal, Mr Appleyard. He deals specifically with a number of the grounds in the amended Notice of Motion, but does not deal with this first issue at all. There is no reference to it.
31. Since the Tribunal did not appear, Mr Prior, on behalf of the local education authority, submitted that one could discern a conclusion as to the issue of Attention Deficit Disorder from the Tribunal's findings. He says that it is plain from that decision that they accepted Mr Smith's views that this boy was not suffering from that disorder. In particular, he referred to paragraph 1, where the Tribunal said that the boy displayed difficulties in the areas of attention and concentration.
32. At paragraph 3, the Tribunal referred to Ms Lisa Blakemore-Brown's view that he was suffering from Attention Deficit Disorder but made no comment on it. That would be fair enough if they were merely setting out the evidence -- although that is under the heading of "Facts" -- and if they returned to that matter in their conclusions, but they did not. At paragraph A of their conclusions they refer again to the fact that he has difficulties in the areas of attention and concentration, but say no more about it. At C, they state that he requires a placement capable of both reassessing his needs and providing immediate appropriate teaching and support.
33. At paragraph 11, under the heading "Nature of Provision" in Part III of their decision, they say he requires:

"Immediate reassessment by the LEA of his needs with particular reference to ... Attention Deficit Disorder ..."

34. If he needs reassessment with particular reference to Attention Deficit Disorder, that raises the question whether the Tribunal reached that conclusion because it found it was not in a position to say whether he was suffering from that condition, or whether they did conclude that he was suffering from that disorder but were not in a position to say what was required to meet the needs which resulted from that disorder.
35. If they meant that they had concluded he was suffering from the disorder, but were not in a position to say what needs flowed from that disorder and how they were to be met, that would be odd in the light of the evidence of Ms Blakemore-Brown, particularly in the passages which I have already cited from her report, in her oral evidence of which she speaks particularly at paragraph 5 of her witness statement, and in the light of the support given to her by Dr Tucker, to which I have already referred.
36. It is clear that the question of whether this boy was suffering from Attention Deficit Disorder was significant. There had been a clear dispute about it. It was clear also that the recommendations of Ms Blakemore-Brown, and indeed the parents' contentions, turned on that issue. In my judgment, the Tribunal never dealt with it. It is not possible to say that the Tribunal rejected Ms Blakemore-Brown's views as, indeed, they were entitled to do. They made no comment upon them at paragraph 3 of their decision, and no comment upon them at page 18, in paragraph A of their conclusions.
37. It is particularly not possible to say that they accepted Mr Smith's findings, but rejected Ms Blakemore-Brown's findings, because they say that the applicant's son has difficulties in the areas of attention and concentration, and particularly some difficulty in communication skills and now demonstrates a higher level language difficulty.
38. I recall what Mr Smith said about that matter at paragraph 17. He said that there was no evidence of such difficulties during the course of his assessment. In those circumstances, it is not possible to say that the Tribunal agreed with Mr Smith and rejected Ms Blakemore-Brown's views. Furthermore, the lines of dispute, as drawn between the local education authority and the parents, was as to whether this boy was suffering from that condition or not.
39. The decision also refers, for example, to hypersensitivity, and to other items such as the requirement for intervention from a speech and language therapist at 4, a programme to develop social interaction skills at 5, and keyboard training and appropriate personal IT equipment at 9. All of those recommendations appear, at the very lowest, consistent with that which was recommended by Ms Blakemore-Brown and which found no support, or any particular support, in the evidence of Mr Smith.
40. I also recall that in the evidence of the chairman there is no support for the inference -- which I am now invited to draw by the local education authority -- that this decision amounts to a rejection of all the expert evidence upon which the parents relied, and acceptance of that which fell from Mr Smith.
41. I conclude that the question as to whether this boy was suffering from Attention Deficit Disorder was significant. If it was not significant there was no need for the Tribunal to require immediate reassessment by the LEA of his needs, with particular reference to Attention Deficit Disorder. All the evidence, one way or the other, suggested that it was a significant issue.
42. I further conclude that the Tribunal failed to reach any conclusion as to that significant issue. It is certainly not clear to me that the Tribunal rejected the evidence upon which the parents relied and still less, therefore, why they did so. To that extent, in my judgment, the Tribunal's decision is flawed and the issue should be reconsidered before a fresh Tribunal.
43. A further point was raised as to the provision for speech therapy. It will be recalled that there had been a recommendation by Veronica Connery that there be a speech and language therapist once per week for 45 minutes per session. It is clear that the Tribunal accepted that there should be intervention from a speech and language therapist (see paragraph 4 of Part III), but they made no finding as to the extent of that provision.
44. At paragraph 7, the Chairman says:

"... the Tribunal did not consider that it had sufficient information before it to enable it to specify the exact amount of such therapy which he should receive."

45. It is not immediately clear to me why they felt so inhibited in the light of the evidence of Ms Connery. It may be due to their reading of the Code, that the only evidence that should be accepted is from the health authority. I fail to understand why that should be so and, although the provision should come from the health authority, that does not seem to me to explain why the evidence should not be from other sources.
46. I accept that a Tribunal is entitled to reject a recommendation as to a specific provision in the interests of flexibility. It may be that a Tribunal would conclude that the needs should be met not by any specific provision but, as I have said, by a flexible arrangement. It is unfortunate, if that is what the Tribunal had in mind, that they did not clearly say so. But, I should add that since, in any event, I am quashing this decision and ordering that it should be reconsidered by a fresh Tribunal, there is no need for me to amplify my views on this particular ground.
47. I would not have quashed the decision on this ground alone. Whilst it is plain that specificity may be required in the circumstances of particular cases, in relation to this comparatively minor matter it would be quite wrong to give relief. It seems to me that, in fact, what the Tribunal meant was that they did not feel it right to make any specific recommendation, and it was unlikely, in any event, to be less than what appears to me to be the likely minimum, namely one session per week of 45 minutes. But I regard the issue as not of sufficient importance to be such that this Court would intervene if that had been the only ground. I would deprecate any challenges which depend on so minute an issue.
48. It was also contended that the Tribunal had done no more than, in effect, order a reassessment to take place whilst the boy was at Ainsdale High School, and that an order by a Tribunal merely to undertake a reassessment was outwith their powers.
49. It is plain that if the decision was merely to order a reassessment, that would be outwith their powers, see the wording of section 326(3) cited above and also the decision of Elias J in H v Gloucestershire County Council [unreported] 15th December 1999, at paragraph 65, where he concluded that the Tribunal had no power merely to order a reassessment. It is not clear to me that is all that the Tribunal was doing, partly because, to me, the decision is not clear at all. I think that what the Tribunal was doing was to reach its conclusions in the light of the expectation that there was to be a reassessment. That is what the solicitor arguing the matter on behalf of the local education authority had apparently made clear to the Tribunal in opening (see paragraph 14A of his statement at page 236 of the bundle).
50. That was an approach the Tribunal was entitled to adopt, namely to see that his needs were met in the meantime, but in the light of the fact that there was to be a reassessment. But the Tribunal was only entitled to adopt that approach if it first made a finding as to the Attention Deficit Disorder. After all, the boy's parents were contending -- supported by Dr Tucker -- that it was a matter of urgency to deal with the disorder. If the Tribunal was going to wait and see, it must first be satisfied that the needs at present displayed by the boy could be met by specific provisions in the meantime. It is not possible to say that they were without there being a finding as to the logically prior issue of Attention Deficit Disorder. It was wrong merely to put off the issue as to whether he was suffering from the order for further assessment, but I do not understand that that is what the local education authority was contending for, or what the Tribunal decided. Nevertheless, they were bound to grapple with that issue.
51. The final issue advanced before me was whether the Tribunal was entitled to make the findings they did -- at paragraph 10, page 20 of the bundle -- in relation to the number of the sessions where direct provision or teaching was to be provided by specialist teachers. Complaint is made that the provision in fact made by the Tribunal was less than that which had been contended for either by the local education authority or the parents.
52. Special Educational Needs Tribunals are specialists with their own knowledge. There was evidence from Mrs Taylor that the provisions set out in paragraph 10 of Part III of the decision were available. It was open to the Tribunal to reach the conclusion that such provision was sufficient, but again, I repeat, only if they dealt with the logically prior question as to whether Mr Smith, or the experts relied upon by the boy's parents, were correct. I conclude that this decision was unlawful. It failed to deal with a crucial important decision. The matter should be reheard before a fresh Tribunal.
53. MR FRIEL: My Lord, I obviously apply for costs. My client is legally aided so --
54. MR JUSTICE MOSES: First of all, what relief do I need to give, just to quash the decision?
55. MR FRIEL: You should remit it. It is an Order 55 statutory appeal to the Tribunal for a rehearing to a fresh Tribunal.
56. May I just mention one thing which struck me when your Lordship was saying a rehearing should not be granted just for the speech therapy issue?
57. MR JUSTICE MOSES: Yes.
58. MR FRIEL: My Lord, the Court does have power under Order 55 to make an order that the Tribunal should do so. It is rare, but in that sort of case the Tribunal's order has been varied by this Court. As I anticipate there will be a transcript and it may be reported there, your Lordship's words should be taken to mean your Lordship would not have remitted it for a re-hearing --
59. MR JUSTICE MOSES: I follow. I might not even have given any relief. It is all obiter. I just wanted to make the point. If all you are complaining about is acceptance that there should be speech therapy but they have not put in the number of hours one week, I do not think this Court should be bothered with that sort of issue.
60. MR FRIEL: My Lord, I understand that it is simply that your Lordship used the words --
61. MR JUSTICE MOSES: The time and expense of coming here, rather than doing some deal with the local education authority, is going to be more than providing a specialist teacher to give even more than anybody wants. That is the problem.
62. I shall quash the decision. I shall order a fresh hearing before a fresh Tribunal.
63. MR FRIEL: We are very grateful. And the costs, my Lord?
64. MR JUSTICE MOSES: What do you want to say about either the relief or the costs?
65. MR PRIOR: My Lord, the relief would seem to be correct. On the obiter point, the point is that in quashing the decision everything is up in the air before the Tribunal.
66. MR JUSTICE MOSES: Exactly. It all starts again. As I hope I made clear in my judgment, and the parents must understand, it could all go very wrong for them, from their point of view, and Mr Smith and anybody else might be upheld and they could lose the issue.
67. MR PRIOR: Indeed, my Lord. It should be borne in mind that the Tribunal are fixed with the idea of language and speech therapy.
68. The second point is costs, and I do not oppose costs.
69. MR JUSTICE MOSES: Very well. I shall grant that relief. The decision will be quashed. A fresh hearing before a fresh Tribunal, and I shall order that the respondent pay the applicant's costs.
70. So far as reporting the decision, nothing should be reported that will identify the boy, and so it can be called "re A".
71. MR FRIEL: I am grateful.
72. MR JUSTICE MOSES: You do not need a legal aid taxation?
73. MR FRIEL:If we could have it just in case, please?
74. MR JUSTICE MOSES: Yes.