England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
(ADMINISTRATIVE COURT)

		Royal Courts of Justice Strand London WC2
		12th November 2001

1. MR. JUSTICE GIBBS: This is an appeal brought by Mrs L under section 11 of the Tribunals and Enquiries Act 1992 against a decision dated 1st July 2001 of a Special Educational Needs Tribunal ("SENT"), to which I shall refer as "the Tribunal". The appeal is brought in relation to the education of Mrs L's son, JL. By consent an order has been made under section 39 of the Children and Young Persons Act 1939 to preserve the anonymity of the child. The appellant's submissions are founded on alleged errors of law in the Tribunal's decision itself and in its reasons. The relief sought is that the case should be sent back to another tribunal for reconsideration.
2. Preliminary issues arose in relation to the admissibility of statements made subsequent to the Tribunal's decision. One statement was from Miss Strowger dated 5th November 2001, the chair of the Tribunal. This sought to explain and/or clarify and/or amplify the reasons published for the Tribunal's decision. Objection was taken to this evidence by Miss Scolding for the appellant on the basis that the published reasons fall to be judged on their merits and ex post facto justifications for them should not be permitted. It should be added that the appellant had on 2nd August asked for a review of the decision which, by letter of 7th September, had been refused on behalf of the Tribunal. Miss Strowger and the Tribunal (second respondents) are not represented on this appeal. Miss Carrington, counsel for the Devon County Council, the local education authority and first respondent, concedes that there is a limit to the use to be made of statements such as this; but she submits that I am entitled to consider it, for the purpose at least of clarifying and explaining possible ambiguities in the reasons given, and thus ensuring that the Tribunal's reasoning is not criticised on a false basis. The second statement sought to be introduced is from Mrs L dated 30th October 2001, which chronicles events which have taken place since the attempted introduction of JL to the educational regime as determined by the Tribunal, and attaches more recent correspondence and a psychiatric report. Miss Carrington objects to the use of this evidence for any other purpose than determining the nature of any relief to be granted should the challenge to the Tribunal succeed. She submits (in my judgment rightly) that the evidence cannot be used in a retrospective way to support the arguments on the legality or rationality of the decision. If (as would seem to be the case) the educational regime for JL has run into severe difficulty, then there are other appropriate courses open to Mrs L to pursue on her son's behalf. Miss Scolding does not seriously dispute these submissions, though she maintains that the appellant's recent statement does support one of the arguments on the Tribunal's approach to the issue of the relevant costings of the proposals before the Tribunal.
3. My response to the controversy about admitting the statements was to propose that I read them provisionally and without prejudice to the admissibility arguments. This was agreed by both counsel. The statements have had a very limited influence on my reasoning as to the merits of the appeal in this judgment: I shall indicate expressly on which points I have considered them relevant.
4. The facts are as follows. JL is a boy of 11. He was born on 6th May 1990. His intellectual ability is said to be at least average. He does however have severe specific learning disabilities and a severe receptive and expressive language disorder. His underachievement is especially marked in subjects requiring or associated with literacy. He finds difficulties with the written word, with abstract concepts and with verbal reasoning. His progress in these fields has been disappointingly slow in the light of the high level of support he was receiving (or was meant to be receiving) at his primary school, which he left in the summer of 2001.
5. On the other hand, tests have shown him to be above average in spatial skills. He enjoys physical education and sport, and he represents his county at swimming.
6. However, despite these positive and encouraging factors, he is emotionally fragile and lacks self esteem.
7. JL is the third of four brothers. He is looked after with his brothers in the family home by his mother (the appellant) and father. The disabilities which JL has are almost certainly inherited and genetic in origin, since his father and all three brothers have or have had similar or related conditions. JL however appears to be the most severely affected.
8. The dispute in the case arose because of the appellant's disagreement with the statement of special educational needs made by the first respondent on 16th February 2001 for JL, in particular with parts 2, 3 and 4 of that statement. This statement was clearly directed to the need to decide a suitable school and suitable provision for JL's needs upon his imminent move from primary to secondary education. The essence of the assessment and proposals in the statement was: that JL should be placed in a mainstream secondary school, which I shall call school 'A' (part 4); and that, pursuant to the objectives at part 3(a), he should receive educational provision to meet those objectives and the needs set out at part 3(b).
9. The preference of the appellant was for JL to attend a specialist residential school in an adjoining county as a weekly boarder. I shall refer to this school as 'School B'. It was contended by the appellant that School 'A' was not suitable. Further, it was contended that the educational provision at part 3(b) was inadequate.
10. The evidence before the Tribunal was in summary as follows: the evidence of the appellant; the evidence about how JL's special educational needs had been met at primary school pursuant to earlier statutory statements and the findings of a Tribunal in May 1999; also evidence as to how in 2000 arrangements for speech and language therapy had, it was agreed, broken down because of the inability of the first respondent to continue to secure the services or the sufficient services of a therapist. Furthermore, the first respondent had been unable to provide the amount of specialist teaching time specified by the earlier Tribunal. Nevertheless, some progress had been made.
11. Significantly from the point of view of this appeal, there was placed before the Tribunal a body of expert evidence as to the appropriateness or otherwise of mainstream education for JL. These included the detailed report and oral evidence from Denise Thornton, an independent educational psychologist; and Nancy Arnaud, a speech and language therapist. It is not in dispute that both these witnesses were independent experts with high qualifications and a depth of relevant experience. Each was of the clear and well reasoned view that JL's difficulties were such that mainstream education of the type which School 'A' could provide would not adequately cater for these needs.
12. It is necessary to quote from material parts of the written evidence of both witnesses. Denise Thornton, 4.14:

"In my opinion, J's needs certainly cannot be met within the normal resources available to pupils in mainstream secondary schools even if those resources are supplemented by specific teaching and learning assistance."

4.16:

"I am not aware of any instance in which a pupil with needs as extensive as JL has been effectively supported within a mainstream school setting without intense and consistent support from a speech and language therapist as part of a specialist unit with full time support in mainstream classes."

4.17:

"In my opinion, bolt-on support in a mainstream secondary school will not be sufficient to meet JL's substantial needs. The current statement does not even suggest that bolt-on support from speech and language therapy would be provided. I can see no evidence to suggest that JL has made enough progress to be appropriately placed within a mainstream school which will only offer part-time access to specialist teaching and learning support. JL would spend a lot of his time in the mainstream classes unsupported."

Importantly, she then continues:

"Even full time ancillary support would not meet his needs because he requires an integrated programme of support which is based on the on-going input from the Speech and Language who is involved in direct therapy work with JL. Specialist teaching would not be an appropriate replacement for this. (The words 'speech and language' are clearly intended to be followed by 'therapists'.)"

4.19:

"It is my considered opinion that JL will require a specialist school environment which offers specific and specialist support for pupils with serious language, literacy and numeracy difficulty, in addition to support for pupils with fragile self-confidence, low self-esteem and complex difficulties."

13. I now quote a passage from the report of Nancy Arnaud:

"3. The educational environment for JL is going to be crucial. He requires instructions given to him in a different way, he requires significant simplification of language, he will require specific teaching to ensure that he has acquired vocabulary that is relevant to different subject areas. He will need time and encouragement to participate orally within the class group session, taking into account the severity of his difficulties constructing sentences and also the severity of his word finding difficulties. It is essential that JL is educated in an environment where all staff are trained to work with children with specific learning difficulties, but also have experience working with children who have severe specific language disorders. I have no doubt that JL would be unable to cope within a mainstream secondary environment. I would also have very serious concerns about his emotional fragility if he is subjected to this type of environment."

14. In addition to these reports and the oral evidence from the witnesses, there was a letter from a senior paediatric specialist from Guy's Hospital and an assessment report on JL from a research team from University College London. These were fully supportive of the appellant's case, although they do not purport to answer definitely the question of a specific appropriate school.
15. Miss Thornton and Miss Arnaud were cross-examined at the Tribunal but it is not suggested that either resiled from the views that I have just cited, nor from the reasoning which supported them.
16. Alongside this evidence the Tribunal considered evidence of behalf of the first respondent. This consisted of the written reports of Mr Savage, an educational psychologist from the first respondent, and Maeve Guly, a speech and language therapist from the local NHS Trust. There is no reason to suppose that either of these two were other than well qualified and experienced experts. Neither of their reports, however, addressed the question of whether mainstream education was suitable for JL's needs. There is no indication that they were specifically asked to do so. The Tribunal also heard evidence from witnesses who co-ordinated JL's special needs at primary school; also and in particular from Miss L, the special educational needs co-ordinator at School 'A'. Miss L set out in detail the arrangements which could be put in place for JL's special educational needs. By virtue of her position and experience, she could no doubt be regarded as an expert witness and her opinions would thus be admissible in evidence. She asserted that she was confident that the college could provide an appropriate level of support. However, whilst she could properly be regarded as an expert, there is no indication that her level of expertise bore any comparison with that of Miss Thornton or Miss Arnaud, nor that she had been asked to address in any depth the fundamental question of whether mainstream education could reasonably meet JL's needs.
17. It should be added that whilst the question of a mainstream against a specialist placement was very much in issue, no one suggested that a residential placement was necessary. The proposal for School 'B', which is residential, was made in the absence of local specialist provision. It was common ground that no local specialist provision existed.
18. A further background matter is that certain amendments were agreed to the statement of special educational needs between the appellant and first respondent before the Tribunal's decision.
19. I now come to the decision itself. The Tribunal recited in 22 paragraphs the evidence it had heard and considered, including the evidence to which I have already referred. It also recited some of the submissions that it had heard from counsel. It then set out its conclusions which I think I must, in order to do them justice, quote in full:

"Tribunal's conclusions, with reasons.

We have carefully considered the written evidence submitted to the Tribunal in advance of the hearing and the evidence given to us at the hearing. We took account of the relevant paragraphs of the Code of Practice; section 9 of the Education Act 1996 and of the decisions referred to us namely, R v Oxfordshire County Council ex parte P, L v Clarke and Somerset County Council, S v City and County Council of Swansea and Confrey and C v Buckinghamshire County Council.

1. JL is of average intellectual ability but he has severe specific learning difficulties and a severe expressive and receptive language disorder. He does not need a 24 hour curriculum nor residential education.

2. We were concerned that the provision set out in his statement and the additional provisions ordered by a previous Tribunal have not been fully implemented.

3. We were satisfied that JL has made some progress, albeit very slow and slight. We are not in a position to comment whether his progress would have been different if the provision in his statement had been fully implemented. We noted his present SATS results in science and maths. We also noted his sporting talents, the good relationship he has built with his class teacher, his ability to relate better to others and his enjoyment of a recent school residential trip. These indicated to us growing achievement in his own community.

4. We accepted that there was no specialist day school available in his locality and that other mainstream schools mentioned by the LEA were not considered suitable by Mrs L. We had no information about another LEA school with a specialist unit for dyslexia suggested by Ms Healey at the hearing. We understood it was about 45 miles from JL's home.

5. From the evidence before us we accepted that School 'B' could make appropriate provision for JL, although it was agreed he did not need a residential placement. It provided an on site speech and language therapist; there was a similar peer group; there were small classes and a more intensive literacy input. Against this we had concerns about the effect of JL moving away from his locality and his peer group to a residential school.

6. We decided that, subject to amendments in Part 2 and Part 3 of JL's statement appropriate provision could be made for JL at School 'A'. We agreed with Ms Scolding that provision for JL needs to be specific. Our additional amendments to the partially agreed amended statement are set out in the order.

7. We considered the question of costs because, subject to our additional amendments to JL's statement, we concluded that both schools could provide for his needs. We accepted that the cost of a place at School 'B' was £12,813. We accepted that Mrs L was not seeking transport costs and we did not include these in the calculations. We accepted that the revised costs for a place at School 'A' were £8,868. We did not think that this included sufficient speech and language therapy. We estimated the costs of the additional speech and language therapy which we deem necessary to be £500 per annum. We therefore calculated the total costs of a place at School 'A' to be £9,368. The difference between those costs and the costs of a place at School 'B' is £3,445.

8. We took account of section 9 of the Education Act 1996 and concluded that, in all the circumstances, this would be unreasonable public expenditure."

20. They continue with the particular provisions to be included in Part 3 of the statement. I quote from this, not in full but as far as is material to this appeal:

"Provision to be amended as follows:

J's needs will be addressed through an individualised learning programme, which will incorporate in-class, small group and individual support as appropriate. This will include:

c. A structured programme delivered for at least 30 minutes per day by an appropriately trained Learning Support Assistant to develop his receptive and expressive language skills: the programme to be designed and monitored on a monthly basis by a speech and language therapist who will liaise with staff and assess his progress, working with JL for at least an hour each month.

h. Dedicated LSA support in all lessons with the exception of art, music, drama and PE to ensure that in all curriculum areas he is helped with the acquisition of new concepts and the necessary language. This will be provided by the subject departments and supervised by the specialist teacher.

i. An adult mentor who will be available on a daily basis to address any concerns which he may have."

21. I have read out all the material and potentially material provisions in full, since they include all of the Tribunal's reasons for the purposes of this appeal.
22. Ms Scolding in her skeleton written argument developed a detailed and multi-faceted attack upon numerous aspects of the decision and reasons. However, with her assistance and that of Miss Carrington, these were honed down to the few specific issues which were in reality genuinely arguable and which were to an extent inter-related. In the light of that useful pruning exercise, I trust it will be fair, as well as expedient, to concentrate on the real issues and to omit reference to the other written submissions, including Miss Carrington's response to them, save in one respect.
23. The exception is the argument that the decision is unreasonable in the Wednesbury sense. It is worth dealing briefly with this point. The Tribunal is an expert body adjudicating on educational issues within its field. It was here dealing with responsible arguments being advanced on the basis of evidence, between a public body in the form of the local education authority and the parent of a child with special needs. It accepted, subject to significant additional provision, the proposals of the LEA. This court would need considerable persuasion under those circumstances that the result was a decision at which no reasonable tribunal properly directing itself could arrive. It is plain that the appellant, a parent who has the difficult task of supporting JL, and on the evidence does so with great care and resolve, disagrees with the result and is very disappointed by it. But this court cannot substitute its own views for that of the tribunal. Objectively, it is not here possible to strike down this decision on Wednesbury principles. There is nothing in the decision itself to show that it was outside the range of a reasonable decision-maker. The question of whether adequate reasons were given for the decision is a different issue, to which I shall come later in the judgment.
24. The first substantive point developed orally by Ms Scolding was that the findings of the first respondent were not specific enough. The duty of so-called"specificity" has been the subject of judicial consideration and is also dealt with in a code of practice. I shall refer to these later. The appellant's principal contentions here are that the expression "dedicated LSA support" at paragraph 2h of the conclusions is ambiguous and unspecific in failing to indicate whether it requires "one-to-one" support or something short of that. It is contended that upon proper interpretation the expression should mean continuous "one-to-one" support. It is further submitted that the requirements set out at paragraph 2c are too unspecific to enable the first respondent to comply with them with any or any sufficient degree of certainty. Whilst there are two specific periods of time mentioned, namely at least one hour per month with a therapist and at least 30 minutes a day for the delivery of a structured programme by an LSA, nevertheless there is a lack of specificity about the nature of the structured programme and the details of it, including the time involved. Thus, it is submitted, there is room for significant doubt about what the Tribunal decided was necessary, both as to the time to be devoted and whether the support was to be on an individual or group basis.
25. As a subsidiary point it is submitted that paragraph 2i is not specific enough about the identity or nature of the services to be provided by the adult mentor and the time which that should involve.
26. Miss Carrington's response was that, whilst she accepts that specificity is required, the law in the Code of Practice recognizes that in suitable cases the Tribunal can and should retain a degree of flexibility within the programme if that is in the child's interests. She submits that it was entirely appropriate to place the programme under the guidance of a speech and language therapist and leave him or her a degree of flexibility and discretion to design the programme. She submitted that the word "dedicated" should not be allowed a false prominence in such a way as to mislead the court about what the Tribunal intended. In this respect she invited attention to Miss Strowger's recent statement to the effect that dedicated support was intended to mean "one- to-one" support, not all the time but as and when required.
27. Ms Scolding submitted that the Tribunal fell into error in the way in which it calculated the cost of the provision which it found to be necessary. This was a point closely connected with the submission on specificity. If the requirements were lacking in specificity, then costs estimates would be at best unreliable. Thus, insofar as the Tribunal based its decision on the comparative cost between School 'A' and School'B', then such a comparison was also unreliable. In her written argument Ms Scolding produced a breakdown of figures designed to demonstrate that, on one view of the Tribunal's findings, the difference in cost between the provision directed by the Tribunal and that proposed by the appellant was as little as £500 to £1,000. This, if correct, would have an important effect on the balancing exercise to be conducted by the Tribunal in weighing parental preference and benefit on the one hand against the appropriateness of the first respondent's proposals and the reasonableness of public expenditure on the other.
28. In oral argument Ms Scolding concentrated on a particular aspect, namely the cost of dedicated LS assistance. She submitted that on that basis alone, if there was to be one-to-one support for JL in lessons with a literacy content, the Tribunal had seriously underestimated the cost. Their estimate was based on 11 hours per week. The hours in fact required would be about 19, possibly 19 1/2. She relied on the appellant's recent statement as showing that the first respondent had in practice interpreted their duty as requiring one-to-one support for JL at all times during the relevant lessons. Ms Scolding abandoned attempts to rely on any other significant errors in costings.
29. Miss Carrington in reply again relied upon Miss Strowger's clarification of the expression "dedicated". She said that with or without that clarification the costings based on 11 hours per week were entirely reasonable. Precision could not be expected. The Tribunal had the not uncommon task of making an informed estimate of the cost based on the evidence and aided by its own experience.
30. Ms Scolding's next submission was that the Tribunal acted unlawfully in determining a level and type of provision for speech and language therapy for which neither party had contended. She argued that they must in effect have relied upon their own evidence and expertise which amounted to an improper exercise of their function. At the very least they should have indicated to the parties what was in their mind and given them a fair chance to deal with it. Miss Carrington's response was that the Tribunal was doing no more than what tribunals and courts habitually have to do. That is they were assessing the levels of support put forward by each party. They were then deciding whether to accept in full the contention of one party or the other, or, as it was submitted they were quite entitled to do, to opt for a position between the two extremes. There was no question of the Tribunal having introduced an entirely new element into their decision, which the parties have been deprived of an opportunity to address.
31. A secondary point made by Ms Scolding on the speech and language therapy and assistance was that the Tribunal could not properly have concluded that the first respondent was capable of delivering what was directed. This submission was based on past failures and the absence of positive evidence that performance would improve. The first respondent's answer was simply that this approach was wrong in law. The correct approach, if the LEA indicated that the services would and could be provided was to assume, unless this was obviously wrong, that the authority was capable of complying with the Tribunal's requirements. If then it failed to do so, there were means of enforcement.
32. Finally, but by no means least important, was Ms Scolding's submission that the Tribunal's reasons or purported reasons why mainstream education at School 'A' was inappropriate were entirely inadequate. No express mention was made of the strong parental preference for a specialist school, although that was the statutory starting point in school selection. The only significant expert evidence on the fundamental choice to be made between the two schools was that called by the appellant. It decisively supported the specialist school. There was nothing in the Tribunal's conclusions to indicate that it had addressed its mind adequately or at all to the expert evidence. Even if it could be inferred that the evidence on the issue had been rejected, no reasons were given. Thus it was not possible to know whether the decision had been made on proper and lawful grounds.
33. Miss Carrington conceded that the Tribunal's reasoning could have been more clearly expressed. She submitted that an examination of the decision as a whole disclosed reasons which were at least adequate to meet legal requirements. Whilst no express reference was made to parental wishes, the centrality of that concept must, she said, have been clear to the Tribunal since that was the very reason that they were hearing the appeal. It was also clear that the expert evidence was considered since it was referred to in some detail in the recital of the facts; indeed, as to therapy and support it was in part adopted in preference to the Council's proposals on those subjects in the conclusion.
34. Miss Carrington acknowledged that there was no express finding about the experts' evidence of unsuitability of the mainstream school for JL, but she pointed to the finding that both schools were appropriate and to the findings of the relative advantages and disadvantages of the specialist school as against the mainstream school. She submits that it can and should be found that, at least by implication, they rejected the expert evidence on this topic and, having done so, conducted the proper balancing exercise required of them under the legislation.
35. I now turn to the law as drawn to my attention by both counsel. I begin with the Education Act 1996, section 9:

"Pupils to be educated in accordance with parents' wishes

In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State, local education authorities and the funding authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure."

36. This emphasizes the centrality of the parents' wishes subject to compatibility with the other two factors. Statutory requirements are also imposed in relation to the choice of school when the authority formulates a statement of educational needs. I quote in this respect from section 324 of the 1996 Act:

"Statement of special educational needs

(1) If, in the light of an assessment under section 323 of any child's educational needs and of any representations made by the child's parent in pursuance of Schedule 27, it is necessary for the local education authority to determine the special educational provision which any learning difficulty he may have calls for, the authority shall make and maintain a statement of his special educational needs.

(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 (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement..."

37. The provision goes on to define the need to specify other provisions.
38. On the question of specificity, the applicable test is set out in the judgment of Laws J (as he then was) in L v Clarke and Somerset County Council [1998] ELR 129, 136F:

"Lastly, I should refer to the Secretary of State's Code of Practice where in part 3 towards the end of para 4.28 this appears:

'The provisions set out in this subsection should normally 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.'

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 that 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 s 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.

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.

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."

39. Laws J went on to say what his findings were based on that principle in the particular case. It will be noted that the test is couched in language entirely consistent with the Code but helpfully elaborating it. (The material provision in the Code is incorporated in the passage which I have just quoted.)
40. Upon the correct approach and weight to be given to parental wishes in the decision about an appropriate school guidance is given in the decision of Thorpe LJ in C v Buckinghamshire County Council and SENT [1999] ELR 179,189D:

"Clearly the function and the duty of the county council under the Education Act 1996 is distinct from its function and duty under the Children Act 1989. In carrying out its statutory function and duty in relation to a child with special educational needs, the welfare of the child is not the paramount consideration. That said, it is clear from s 324(4)(a) of the Education Act 1996 that the LEA has a duty to ensure that a child with special educational needs is placed at a school that is 'appropriate'. It is not enough for the school to be merely adequate. To determine if the school is appropriate, an assessment must be made both of what it offers and what the child needs. Unless what the school offers matches what the child needs, it is unlikely to be appropriate. The assessment of the child's needs necessarily imports elements of a welfare judgment. If there are two schools offering facilities and standards that exceed the test of adequacy, then I would hope that ordinarily speaking the better would be judged appropriate, assuming no mismatch between specific facilities and specific needs. Parental preference obviously has a part to play in the assessment of what is appropriate. In a case where there appears to be parity of cost and parity of facilities, parental preference may be the decisive factor. But it would be wrong to elevate parental preference to the height that Mr Bowen appeared to contend for in his submissions. A bare preference might be ill-informed or capricious. In practice, parental preference may mean a fair opportunity to the parents to contend by evidence and argument for one school in preference to another. Therefore, preferences must be reasoned to enable the parent to demonstrate that they rest on a sound foundation of accurate information and wise judgment."

41. Ms Scolding relies on two authorities in support of her contention that there was unfairness and therefore illegality in the choice by the Tribunal of a course advocated by neither party, namely Richardson v Solihull Metropolitan Borough Council and Others CA [1998] ELR 319, a decision of Professor Jack Beatson QC, Deputy High Court Judge, unreported, 7th December 2000, The Queen on the Application of Mr. and Mrs B v Vale of Glamorgan County Borough Council and Others. I do not think that it would assist to quote from either authority but I have read and considered the passages referred to. I was referred to two decisions in this court which are of assistance on the question of reasons.
42. Before quoting from them I remind myself that it is a well known principle of law that reasons, if required, should be proper, adequate and intelligible. The sufficiency of reasons under that principle depends on the context in which they are to be given. The tribunal hearing a case such as this would not, for example, be required to articulate reasons in the same detail and particularity as would a civil court of law. This brings me to the decision of Grigson J in H v Kent County Council and SENT [200] ELR 660,670. The judge was there considering the way in which the tribunal dealt or failed to deal with two expert witnesses:

"44. The question for this Tribunal could have been formulated in this way: 'Does the evidence of Dr Muter and Dr McCormick, taken with all the other evidence that they heard, take Abigail from Level 3 to Level 4, so as to trigger the mechanism for statutory assessment?'

45. I have read the relevant parts of the Tribunal's decision. Although their decision is clear enough, nowhere in that decision can be found even an attempt to deal with the evidence contained in those two latest reports. The Tribunal seems to have had more regard to the report of

(46) Mr Reid (see para 11) a report plainly superseded by later information.

(47) If one asks: 'Could an agreed party identify the basis of the decision?'The answer is, in my judgment, plainly 'no'. If one asks: 'Does the decision deal with the substantial issues raised so that the parties could understand why the decision has been reached?'Again, the answer is 'no'.

(48) I have considered the submission made on behalf of the first respondents that a party to the hearing, someone who had heard the evidence and heard the submissions, would readily understand this short form of judgment. That is a submission I feel bound to reject. It is not possible to ascertain from this decision how the Tribunal viewed the evidence of Dr Muter and Dr McCormick and the recommendations they made, based upon their findings. I add that the assertion in the Tribunal's judgment that there had been no substantial change in circumstances since the previous statutory assessment is unsustainable, unless the evidence of Dr Muter and Dr McCormick was simply rejected. There was no such finding.

(49) In the course of argument, I was referred to the case of R v Mental Health Review Tribunal ex parte Moyle.

(50) I was provided with a transcript dated 21 December 1999. Again, it is a judgment of Latham J (as he then was). It is authority for the proposition that a Tribunal is not bound to accept expert evidence. That is plainly right. They are not bound to accept expert evidence, but if they reject it then they should say so specifically and, in the specific circumstances that pertain here, it is my judgment that they should also say why.

(51) At p 10 of the transcript, Latham J said this:

'They [that is the Tribunal] have an original jurisdiction, in which they have to exercise their own judgment, based on the evidence before them. It is open to a Tribunal, provided that they act rationally, to disagree with the views of any psychiatrists whose evidence is put before them.'

(52) If one substitutes 'educational psychologist' for 'psychiatrist' that is a proposition that is plainly right. Here it was not rational to prefer the evidence of a psychologist when his report was 12 months out of date to that of the most recent and indeed unimpugned evidence, without there being good reason and without that reason being expressed.

(53) I was referred to the standard textbook, de Smith, Woolf and Jowell Judicial Review of Administrative Action (Sweet & Maxwell). A p 466 of that book, the following passage appears:

'The reasons must generally state the Tribunal's material finding of fact and meet the substance of the principal arguments that the Tribunal was required to consider.'

(54) This decision does not meet those requirements and such an omission is, in my judgment, a fundamental error of law."

43. On the question of specificity and adequacy of reasons, I have also read and considered South Glamorgan County Council v L and M [1996] ELR 400 and Crean v Somerset County Council, Administrative Court, 10th November 2000, unreported. On the issue of the first respondent being unable to deliver the provision specified, I have considered The Queen on the Application of Molloy v Powys County Council and SENT, per Richards J, Administrative Court, 2nd May 2001. Reliance is placed by Miss Carrington on paragraphs 30 and 32 (issue 3).
44. My findings on the points raised are as follows:

Specificity.

45. There is no doubt that there are matters within the Tribunal's determination about how JL's needs will be met which are not specifically defined in terms of the precise manner of delivery or the precise time to be devoted to them. However, I accept that this in itself is not fatal to the decision. I further accept that in the general framework of the decision which the Tribunal found appropriate, there was a considerable degree of specificity. I do not construe the word "dedicated" as necessarily meaning one-to-one support during all relevant lessons. The most helpful of the dictionary definitions which Ms Scolding produced to assist me was "assigned or allocated to a particular project, function etc". The function in this case was to support JL. This function does not necessarily mean "one-to-one at all times". I reach this conclusion without considering Miss Strowger's recent explanation. However, for this purpose I do consider it permissible to consider that explanation to resolve a possible ambiguity. She says that dedicated support was intended to mean "individual support as and when needed". This does no more than confirm the construction that I have already placed on the expression. The point does not in my view help to advance the appellant's argument on specificity on the argument. Nor am I persuaded by the substance of the argument as a whole. It seems to me legitimate for the Tribunal, having decided to put a structured programme in place under the design and supervision of a therapist, to allow a degree of flexibility to the therapist as to its delivery. The approach is not shown to be inconsistent with the principle set by Laws J in the Clarke case, nor with the Code of Practice. The point about the adult mentor (para 2i) carries the submission no further. Whilst the case may arguably come close to the permitted borderline in allowing flexibility, it does not cross it.

Costings

46. The view I have reached on specificity takes much of the sting out of the appellant's case on costings. The costing of an extra £500 for speech and language therapy is not seriously challenged by Ms Scolding. I accept Miss Carrington's submissions on the subject of the Tribunal's estimates of the costs of the structured programme envisaged at 2(c). Calculations show this to be based on 10 hours or so of assistance (out of a total of some 19 hours, as already stated, of relevant lessons). This seems to me to be based on a proper and lawful assessment of the likely costs. I find therefore that the Tribunal's decision cannot be challenged on the basis of an error in the costings themselves or its approach to them.

Speech and language therapy

47. I consider that the tribunal was quite entitled to decide that a higher level of provision was justified than that proposed by the first respondent, whilst stopping well short of prescribing the more intensive levels of support contended for on behalf of the appellant. There was nothing wrong in principle with that approach. It would have been otherwise if the Tribunal had in its determination gone significantly outside the scope of what either party proposed. In one of the cases considered, in Richardson and Others, the Tribunal had specified a particular school unknown to the parties and not put forward by any of them. This was held to be procedurally unfair (although the decision itself was not quashed). The present facts bear no resemblance to that situation. No aspect of the arrangements decided upon by the Tribunal represented a significant departure from the type of provision put forward by the parties before the Tribunal. I accept Miss Carrington's submissions and find that there is nothing in this point which assists the appellant.
48. I am bound also to reject the secondary submission about the first respondent's ability to deliver. I acknowledge that this is a major and genuine concern for the appellant, especially in the light of her account of subsequent events. However, for the reasons submitted by Miss Carrington, I find that in law the argument cannot be supported. I agree with the reasoning of Richards J in the Molloy case in the paragraphs which I mentioned above. The first respondents have said that they could deliver the service. It is to be presumed that they can despite some past failures. If this were to have been the only valid point the remedy would lie in enforcement.

Reasons

49. In my judgment, the issue of whether or not proper, adequate and intelligent reasons were given is the crucial point in this appeal. In approaching the issue I believe it to be important to have in mind certain undisputed factors (a) a strong parental wish that JL should go to School 'B'; (b) a relatively modest difference in the annual cost between that school and School 'B'. By way of explanation, there is no doubt that the difference is quite substantial enough (£3,445 per annum) to be significant. However, as both counsel accepted, in terms of a comparison between the annual cost of residential specialist and non-residential mainstream schooling it is a surprisingly modest difference. This is partially accounted for by the willingness of the appellant to undertake to meet the transport costs; (c) in support of the parental wishes there is the powerful and effectively unrebutted evidence called before the Tribunal, that the mainstream education provided by School 'A' would not meet JL's needs. This was evidence which the second respondent as an expert tribunal was entitled to reject of course, if adequate reasons for that rejection were to have been given.
50. I accept Miss Carrington's submissions on this issue to this extent. It can be inferred from paragraph 5 of the conclusions that the Tribunal rejected the expert opinion as to the unsuitability of School 'A' for JL. That must be the case from the finding that that school "could make appropriate provision". Beyond that bare finding, however, there was no reason at all given for rejecting the firm opinion that School 'A' would not meet JL's needs. It is true, as Miss Carrington says, that the evidence of Miss Arnaud and Miss Thornton was quoted in the recital of the facts. But their evidence about the inappropriateness of School 'B' was not there mentioned, let alone criticised or dealt with. Only Ms Scolding's submission on the topic was briefly referred to without comment (facts, paragraph 22). In any event, mere recitation of evidence is no substitute for the giving of reasons. Because of the absence of reasons it is simply not possible to ascertain, even in general terms, the logic which led the Tribunal to reject the appellant's substantial expert evidence that the mainstream provision was completely unsuitable. The Tribunal does not specifically mention the point, let alone address it. It is also disturbing to find no mention of parental wishes. I accept in principle Miss Carrington's argument that parental choice must be assumed to be central to a special educational needs tribunal's deliberations. One could normally assume that to be the case. Further, the judgment of Thorpe LJ in C v Buckinghamshire County Council shows that the bare fact of parental preference, unless supported by good evidence that the preference is appropriate, will carry little or no weight. Here, however, the parental wishes are well supported by effectively unrebutted expert evidence in circumstances where the cost difference, whilst significant, is acknowledged to be very much less than is usually to be found. Under those circumstances the manifest failure to give any reasons for rejecting the expert evidence on the topic seems to me to be fatal to the lawfulness of the decision. My view is unaltered by the fact that the Tribunal seems impliedly to a limited degree to have accepted the experts' evidence about the inadequacy of the first respondent's proposals on therapeutic and learning support. It seems to me that the absence of reasons here is so stark as to destroy the confidence of the objective observer that the issues dealt with by the experts were addressed and taken into consideration by the Tribunal properly or at all.
51. It follows that the failure described goes beyond the category of a mere defect in reasoning which would fall short of an error in law which Richards J contemplated in the Molloy case. He contemplated that such an error might be dealt with by referring back to the same tribunal for clarification. This is plainly inappropriate here. In any case, as Ms Scolding points out, the appellant has already sought, and been refused, a review of its decision.
52. Since I have held that the decision of the Tribunal is unlawful because of the absence of reasons, the question of remedy now falls to be considered. The court is thus now entitled to have regard to the appellant's recent statement. It is not a statement that has been tested by cross-examination. However, it is highly detailed. A recent psychiatric report is appended. There is no significant reason to doubt the credibility of any of the evidence. Its effect is to confirm the full force of the opinions of Miss Arnaud and Miss Thornton as to the inability of School 'A' to meet JL's needs; and further to confirm fully their predictions as to the likely damaging effect that being sent to a mainstream school would have on JL; indeed, perhaps already has had. I hasten to add that this is no reflection whatsoever on School 'A' or its staff. There is nothing in the papers which leads me to doubt their dedication or skill. Quite the contrary. But the issue here is one of the capacity of a mainstream school and its suitability to meet an unusual and highly specialist need.
53. From the standpoint of relief, the recent evidence confirms that this decision should be quashed and remitted to another tribunal for consideration.
54. I would add, with some hesitation, the following. In doing so I do not seek to usurp the powers and discretion of the tribunal or the role of the LEA. The matter remains for them to decide in the light of their legitimate views and concerns. However, if the appellant's recent evidence, including the psychiatric report, is accepted as broadly accurate, it might be felt appropriate for the LEA to review their opinion about the appropriateness of specialist as opposed to mainstream education for JL and to do so before the matter is submitted to the expense and delay of a further reference to a tribunal, albeit such delay may not be very long. I take it for granted that, in approaching the matter of whether to reconsider the decision or to send it to another tribunal, they will take carefully into consideration the possible effect of either course on the interests of JL.
55. MS SCOLDING: We would ask for our costs of this matter. The general rule under the CPR is that the successful party do effectively have their costs paid by the unsuccessful party. I am not sure whether or not Miss Carrington has any specific submissions to make. It may be better if I reply to any that she would make on that basis.
56. MR. JUSTICE GIBBS: Miss Carrington, have you had a chance to consider this statement of costs in any detail?
57. MISS CARRINGTON: I have had a chance to consider very briefly the statement this morning. I have two points of principle. One is that, with or without us, this matter would have to have been heard because it is the decision of the tribunal that is quashed. We have no power whatsoever to make any concession which impacts on the need to persuade the court.
58. MR. JUSTICE GIBBS: I understand that. If I may say so, you have put your arguments clearly and concisely.
59. MISS CARRINGTON: The other point I take issue on is the multiplicity of points that were raised in this case, which have extended the time taken, not only to prepare the case but to actually hear the case. We came down to three points at the beginning of the hearing on 7th November, but before that we were facing well in excess of 25 separate points of law. That is inappropriate and not in accordance with the CPR. Some order ought to be made which reflects the appellant's ability to recover her costs against the local education authority in order to make the costs proportionate in accordance ---
60. MR. JUSTICE GIBBS: It would be perhaps inadmissible and perhaps even mischievous of me to observe that the amount of costs claimed would amount to almost half the extra cost of JL's education at the specialist school over the remaining period.
61. MISS CARRINGTON: I am aware that your Lordship will have had the appellant's statement of costs. May I hand up the local authority's costs. It is less than half that which the appellant is claiming. Having discussed the matter briefly with those at the local education authority, their view is that it is likely that they would not be in a position to accede to any request for summary assessment of costs.
62. MR. JUSTICE GIBBS: You would prefer a detailed assessment?
63. MISS CARRINGTON: I think that is right.
64. MR. JUSTICE GIBBS: Before you go ahead I am minded, having had the opportunity to look through this, to make some significant discount from the costs claimed. It is a matter for you.
65. MISS CARRINGTON: May I take instructions? In those circumstances, a summary assessment.
66. MR. JUSTICE GIBBS: I am conscious of the fact that detailed assessment itself costs money. I am going to take a broad brush approach.
67. MS SCOLDING: May I respond to the first two points of principle? Firstly, the fact that the tribunal chose not to be represented today. It is not uncommon for tribunals not to appear in cases of this nature. The first respondent could have chosen not to have been represented and not to appear here. It is unlikely, as the Treasury were not here today, that they would have objected to that course of events. It is the first respondent's decision to defend the matter. They should not be able to escape their costs. As to the multiplicity of points taken, there are only two issues which are dealt with in any detail in the skeleton argument which I did not take your Lordship to in oral submissions. Your Lordship has found that the points that I dealt with orally were fully arguable, albeit you did not find for me on every point. On that basis I would submit that there should be no reduction in our costs. If you are against me, I would submit that there has been no extra time taken in the preparation of this matter. I have taken specific instructions on this. Whether it is three errors of law or seven, we have spent the same time as our opponents. It should not be my instructing solicitors who should be hit from that point of view. It is clear from my skeleton argument where the major issues lay. On the issue of Wednesbury unreasonableness I did not trouble your Lordship on that in my written argument. I do not accept Miss Carrington's submission that they were dealing with a multiplicity of points or that my points would have been any more or less no matter how many points were raised. As to the submission that our costs are double, it is difficult for a client in this situation, who wishes to challenge what they see as an unlawful decision and should be entitled to do so. It is clear and plain why the costs are double. Devon County Council's hourly rate is £60 an hour which is low and would be the usual rate charged by a trainee solicitor. Our hourly rate is £145 an hour. That is the going hourly rate, certainly upon taxation, for matters of this nature. That explains almost in its entirety why our costs are double those of the local authority. The only other issue is that obviously I settled the grounds of appeal and drafted the statement of advice. The extra money would be that matter which Miss Carrington did not have to do. Those costs would be incurred in any event. That explains in its entirety the reasoning and the differential between those two costs. It would be wrong for your Lordship to significantly deduct my instructing solicitors' costs. One is dealing with someone who is in private practice and has many costs which the local authority do not have. It would be wrong for you to make a direct comparison. It is the rate which is acceptable to this court as the rate for which private solicitors charge in this matter. I would therefore ask you to find that the entirety of the costs are paid or the vast majority are paid. If you wish to prune slightly, the pruning should come from my fees. On that basis I would just check with your Lordship that you do have the revised schedule.
68. MR. JUSTICE GIBBS: The grand total is £9,450. I could just give the figure I propose to assess the costs at. I am conscious that, if one gives reasons which are very brief, they might not appear to be adequate. I am going to give my reasons in the circumstances. I do not think that the rates of costs charged by the appellant's solicitors are unreasonable. I do not propose to penalize them because of the low and, I would say, commendably low level of legal costs charged by the first respondent. Nor, in making my summary assessment, do I wish to go into the invidious field of distinguishing between solicitors' and counsel's costs. But I do propose to make some reduction in the amount claimed, for two reasons. The first reason is that it does seem to me that there is merit in Miss Carrington's submission that there were in written argument an unsupportably large number of grounds advanced, only a few of which had any reasonable grounds of success. Those were arguments which, once raised, Miss Carrington herself was bound to respond to, if only in outline form in writing and direct attention to, which in themselves would have the effect of increasing the work that had to be done on behalf of the first respondent. The second matter to which I have regard is that, although the appellant has won the case and nothing is to be taken to detract from that, she has won on one point, albeit a point which plainly is the most important one in this appeal. Those two matters appear to me to warrant a significant reduction on the basis of justice and fairness in the total costs to be awarded. I accept, however, that in a case such as this an appellant has to gather together resources to contest an appeal and the appeal is resisted, and the ordinary principle that costs follow the event is one which I do not think should be fundamentally departed from. Having given those matters due consideration, I hope that I can assess the costs summarily in the sum of £7,000. That will be inclusive.
69. MS SCOLDING: Could I ask that your Lordship give a date upon which those costs be paid? The usual rule is 14 days.
70. MR. JUSTICE GIBBS: Will that cause inconvenience?
71. MISS CARRINGTON: 28 days would be more appropriate. It has to go via the Treasury Department.
72. MR. JUSTICE GIBBS: 28 days.
73. MS SCOLDING: There are a couple of housekeeping matters. Firstly, I would ask that there will be a remission of this case to a differently constituted tribunal. I was wondering in that case whether I could ask your Lordship to order that the transcript be expedited.
74. MR. JUSTICE GIBBS: Since counsel both agree and this matter is urgent, despite the added pressure I would order that.
75. MS SCOLDING: The only other matter is whether or not the decision of the previous tribunal should be included and the papers relating to this particular appeal should be included and placed before the tribunal at the next tribunal hearing. There is some authority to suggest that it should not be, on the basis that it may, rightly or wrongly, somewhat prejudice the parties in this particular case.
76. MR. JUSTICE GIBBS: They will have most of it from my judgment.
77. MS SCOLDING: I bring it to your Lordship's attention because Ognall J quashed the decision. They probably have enough in your judgment.
78. MISS CARRINGTON: This is a reasons case. It is appropriate that they do have the decision of the previous tribunal.
79. MR. JUSTICE GIBBS: I permit them to have it if counsel consider it to be appropriate because, frankly, they have most of it anyway. If there is anything that needs clarification I think they should be able to refer to the complete document.