England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN’S BENCH DIVISION
ADMINISTRATIVE COURT

		CO/1061/2002 Royal Courts of Justice Strand London WC2A 2LL
		June 28, 2002

Mr Justice Lawrence Collins:

I Introduction

1. J M is now about 13½ years old and lives in Malvern, Worcestershire. He has severe learning difficulties, and his parents (his mother being the appellant) are dissatisfied with a decision of the Special Educational Needs Tribunal (“the Tribunal”), the effect of which is that he will have to attend a special school, run by the local educational authority (“the Authority”). The parents (and also J) want him to go to a privately run specialist school in Devon, F College, which has a much smaller number of pupils and can provide the direct occupational and speech and language therapy which they say he requires. The cost to the local authority of sending J to F College would be between £57,000 and £75,000 p.a.
2. The challenge to the decision of the Tribunal is centred on the rejection of the case put forward on his behalf that he should receive direct therapy by an occupational therapist, that he should receive direct speech and language therapy, and that The schoolwas unsuitable for J’s needs. In particular it was said that the Tribunal had not taken proper account of the evidence that he would not go to the school and could not be persuaded to go there, and that the school did not have full provision to meet his needs, because it was the Authority’s policy not to provide direct speech therapy, and there were no adequate facilities available to provide occupational therapy. The main focus of the challenge was on lack of adequate reasoning. But it was also suggested that in relation to its findings on occupational therapy the Tribunal had made use of its own expertise without putting its solution to J’s parents.

II Legal aspects

3. This is an appeal under section 11 of the Tribunals and Inquiries Act 1992, from a decision of the Tribunal, the procedure of which is now regulated by the Special Educational Needs Tribunal Regulations 2001, S.I. 2001 No.600.
4. By section 9 of the Education Act 1996 the Secretary of State and the local education authorities are to 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.
5. Part IV of the Act deals with children with special educational needs, that is learning difficulties which call for special educational provision: section 312(1). The general principle is that children with special educational needs are normally to be educated in mainstream schools (section 316). Where a local education authority is of the opinion that a child for whom it is responsible has special educational needs and it is necessary for it to determine the special educational provision which any learning difficulty calls for, the authority may make an assessment of the child’s educational needs: section 323.
6. Special educational provision is educational provision which is additional to, or otherwise different from, the educational provision made generally for children of the age in schools maintained by the Authority: section 313(4). If, in the light of an assessment under section 323 of the child’s educational needs and of any representations made by the parent, it is necessary for the authority to determine the special educational provision which any learning difficulty calls for, the authority is to make and maintain a Statement of the child’s special educational needs; and the Statement must contain details of the assessment of those needs, and specify the special educational provision to be made for the purpose of meeting those needs, and specify the name of the school which they consider would be appropriate for the child: section 324.
7. By section 326 the parent of a child may appeal to the Tribunal against the contents of the Statement, and on an appeal the Tribunal may dismiss the appeal, or order the authority to amend the Statement or order the authority to cease to maintain it: section 326(1), (3).
8. A panel of the Tribunal is chaired by a person with legal qualifications. No person may be appointed as a member of the lay panel unless the Secretary of State is satisfied that he has knowledge and experience of children with special educational needs: Special Educational Needs Tribunal Regulations 2001, SI 2001 No. 600, reg 3.
9. By Regulation 36(2) the statement of the reasons of the Tribunal’s decision is to be “in summary form.” This is an increasingly used expression in regulations relating to the procedure of statutory tribunals, such as those dealing with matters as diverse as immigration and asylum and family health services.
10. The principles applicable to challenges of the Tribunal’s decision are not unique to this Tribunal, but since several cases in relation to its decisions were cited I summarise their effect. First, proper and adequate reasons must be given, so that they are intelligible and deal with the substantial points that have been raised, and the reasons should deal, in short form, with the substantial issues raised in order that the parties can understand why the decision has been reached: S v. Special Educational Needs Tribunal and the City of Westminster [1996] ELR 102 at 112; The Queen on the application of B v. Vale of Glamorgan CBC [2001] ELR 529, 536: Crean v. Somerset CC [2002] ELR 152, 164 to 165. Secondly, and as a result of the first principle, the absence of reasons to explain why a case was rejected may make the decision appear irrational: Crean at 167. Thirdly, where reasons are inadequate, it is not normally appropriate that the reasons should be amplified on the appeal to the High Court: Oxfordshire CC v. GB [2002] ELR 8, at 11 (C.A.).
11. Fourthly, a decision must be sufficiently specific and clear as to leave no room for doubt as to what has been has been decided: London Borough of Bromley v Special Educational Needs Tribunal [1999] ELR 260, 297 (C.A.). Fifthly, the lay members of a Tribunal specifically appointed for their educational expertise may use that expertise in deciding issues before the Tribunal, but they may not use it to raise and decide other issues which the parties may not have had an opportunity to consider (for example the choice of a specific school which neither party had considered): Richardson v. Solihull Metropolitan BC [1998] ELR 319 at 322. That is because although it is a specialist tribunal with members appointed for their expertise, it is important that the Tribunal obeys the rules of natural justice and that members should not give evidence to themselves which the parties have had no opportunity to challenge: ibid at 338.

III Background

12. I will take the background from the decision of the Tribunal. J has high levels of anxiety. He panics when faced with tasks and worries about failure. When he was transferred to a secondary school in September 2000 he suffered severe depression, for which he was admitted to hospital and underwent psychiatric treatment. He has a communication disorder within the autistic spectrum with associated delayed and disordered language development, obsessive behaviour and difficulties with social interaction.
13. In 1998 at the age of 9½ he was referred to the Authority’s learning and behaviour support service, and in September 1998 when he started Year 5, it arranged for him to have almost 7 hours a week individual support. By November 1998 he was refusing to go to school and was being prescribed anti-depressants. He transferred to another primary school in January 1999, he was recorded as having difficulties with motor co-ordination, mixed laterality visual discrimination, memory, perception, concentration and poor self esteem. He was given learning support, and his parents arranged for him to attend a private dyslexia class.
14. When he transferred to a secondary school in September 2000 he was not able to cope, and suffered an episode of severe depression. He was diagnosed as having specific developmental dyslexia.
15. He became suicidal and in late November 2000 he was admitted to the adolescent mental health care centre at Birmingham Children’s Hospital. A consultant psychiatrist recommended that he be taught in a small group setting and receive speech and language therapy.
16. At that time he attended a local primary school but was discharged in February 2000, and has not attended any school since then. He has refused to attend a unit for children with school phobias, because, according to his mother, there were pupils there who had been excluded from school for bad behaviour. The Authority provided home tuition, but he withdrew from that, and he has not received any teaching since July 2000.
17. In May 2000, when he was still at primary school, Mrs M asked the Authority to arrange statutory assessment of his special educational needs. The Authority consented to an order, and in the course of an assessment the Authority received advice from (among others) its senior educational psychologist, a Birmingham Children’s Hospital speech and language therapist, and a consultant community paediatrician.
18. The senior educational psychologist saw J when he was 12 years 4 months old, and assessed his verbal reasoning as on the 7^th centile of the population, his non-verbal reasoning on the 34^th centile, his reading age at 7 years six months, and his vocabulary at 7 years 4 months on the 1^st centile. The speech and language therapist suggested J should attend a language unit attached to a mainstream school offering a supportive educational setting specialising in communication disorders and associated problems. The consultant community paediatrician doubted whether he had any dyspraxic difficulties.
19. The Authority issued a Statement of special educational needs, against which Mr and Mrs M appealed to the Tribunal.

IV The decision of the Tribunal

20. The relevant conclusions of the Tribunal were as follows:

“b. in the case of occupational therapy, we consider J’s needs can be met appropriately by advice to the school, and by physical education and help with his handwriting, for which direct therapy by an occupational therapist is not necessary. We do not consider J’s disorder calls for direct speech and language therapy, but appropriate programmes devised and monitored by a therapist would be sufficient.

c. As J has not attended any school for 2 years, and has not received any teaching for 6 months, and in view of his anxiety and tendency to depression, the suicidal aspect of which we take very seriously, and the risk of him being affected by parental anxieties, he will need a carefully considered and sensitively implemented plan to reintroduce him to education.

d. The main dispute between the parties in this appeal is over choice of school. In the Code of Practice that was in force when the Authority issued J’s statement, there was emphasis on appropriateness and suitability to meet the child’s special educational needs. Advice in the current Code about residential provision seems to assume the existence of multi-agency agreements, on which we had no evidence, but irrespective of that, we do not think any of the criteria in paragraph 8:74 apply to J, and we do not think his learning difficulties call for a residential placement.

e. On the evidence, we think the provision proposed at The schoolsuitable to meet J’s special educational needs. Particular advantages are the opportunity for him to transfer to the specialist provision and back into the main part of the school if that is required. The opportunity for extended social activities out of school time (as at F) would be helpful, subject to adjustment of transport arrangements.

f. The authority does not object to F as unsuitable, and on the evidence we think F could also meet J’s needs.

g. Given (a) the very great difference in cost of the two placements proposed, even assuming the lowest estimates of fees and transport costs, (b) our view that residential accommodation is not necessary to enable J’s special educational needs to be met, and (c) our view that The schoolcould make suitable provision for J, we consider that for J to attend F would not be compatible with the avoidance of unreasonable public expenditure.”

21. An important finding of fact was (para. 3(c)):

“J has some gross motor difficulties, mainly to do with muscle tone and balance, and he has some fine motor difficulties which impair his handwriting. In the context of his anxiety and his communication difficulties, however, these are not particularly severe.”

22. The Tribunal added the following point to the subheading of educational provision in the Statement: “A programme, drawn up by the Authority in consultation with J, his parents, his school, his medical practitioners and the Authority’s educational psychologist, for the planned and sensitively managed reintroduction of J to school.” A corresponding addition was made under the heading objectives: “To facilitate J’s return to education in a planned and sensitively managed manner having regard to his anxieties.”

V Grounds of challenge

23. The principal grounds of appeal are that the Tribunal erred in law in the following respects:

(1) In making its findings in respect of occupational therapy and speech therapy in paragraph (b), the Tribunal failed to give any or any adequate reasons as to why the case in relation to the provision of specific occupational therapy and specific speech therapy was rejected.

(2) In making its findings as to occupational therapy, particularly that J’s needs could be met by physical educational and help with his handwriting, and in relation to paragraph (c) that he needed a carefully considered and sensibly implemented plan to reintroduce him to education, the Tribunal used its own expertise but failed to raise these issues with either of the parties to the appeal and thereby erred in law.

(3) In relation to its findings in paragraph (c) that there should be a sensitively implemented plan to reintroduce J to education, the Tribunal had no evidence as to whether such a provision could be delivered and could be implemented, thus acting unreasonably, and no specific provision was proposed considered or ordered.

(4) In finding that the School was suitable to meet J’s needs, the Tribunal failed to consider or make any appropriate finding in relation to the evidence of J’s parents that J would not go to the school and could not be persuaded to go to the school. J had previously failed to attend a secondary school and thereafter been unable to cope with home tuition. In the absence of a finding as to how J would attend the school, the finding that the School was suitable, was and is an error of law.

(5) The Tribunal recorded the parental objections made to the School as being solely on the ground that it did not specialise in children with Asperger’s Syndrome, would not provide J with an appropriate peer group because of the presence of children with moderate and severe learning difficulties, and would involve two hours travel by taxi and bus each day. In doing so the Tribunal erred in law in that the parent’s objection also included an extremely important objection namely that J required direct speech and occupational therapy, and that it was the LEA’s policy not to deliver direct speech therapy, and no adequate facilitates were available to deliver occupational therapy. Therefore the objection was on the basis the school did not have a full provision to meet J’s needs. The Tribunal failed to appreciate, and/or consider the full extent of the parental appeal and objections to the school.

24. The case on the appeal was that the findings of the occupational therapist consulted by J’s parents were that J had significant difficulties overall with gross and fine motor skills. The testing carried out by her was not challenged as inaccurate either by the local authority or by the Tribunal itself, and was standard occupational therapy testing. She made very specific and detailed recommendations for occupational therapy.
25. On the issue of speech and language therapy the draft Statement used by the Tribunal and all parties provided for direct and language therapy and direct occupational therapy, together with a detailed programme. The Authority accepted in its Case Statement in opposition to the appeal that direct speech therapy would not be delivered, and at the hearing the Authority informed the Tribunal that although it could be arranged at school, the school had no regular occupational therapy at present and he was not aware of how long it would take.
26. The authority’s Case Statement had made no reference to a reintegration plan nor any indication of a specific provision that could be made for this purpose. The Tribunal had evidence before it that J would not go to school and could not be persuaded to go to school. The Tribunal made no finding as to how J could be persuaded to go to school and what should be done to enable him to attend. J himself attended the hearing, and gave evidence which indicated he was reluctant to attend the School. Both Mrs M and her solicitor Ms Coxon stressed that J was afraid of attending the school and that he was terrified of going to the school. In addition, the Tribunal approached this as a matter of theory. It had no evidence for example that “J’s medical practitioners” who were in fact many were in a position to negotiate and contribute to such a programme, and none that J was prepared to do so himself.

VI Arguments for the Authority

27. The arguments for the Authority were, broadly, these. First, this is an expert Tribunal, and it may apply its expertise. It may apply common sense. The local authority is not required to provide a Rolls-Royce service, not the best possible provision. The Tribunal has decided that The schoolis suitable. Section 9 of the Education Act 1996 imposes a duty to consider parental preference, but if both are suitable, then costs considerations prevail. The cost to the Authority of sending J to F College would be between £57,000 and £75,000 per annum. That is compared to £2,000 per annum per child in an ordinary school, and £4,325 p.a. at Vale Of Evesham.
28. On occupational therapy, the Tribunal recognised that there were needs, and that is why they accepted what was said in the Statement, and why they made the findings they did. It took into account the report of the occupational therapist, and its conclusion that J’s needs could be met appropriately by advice to the school, and by physical education and help with his handwriting, for which direct therapy by an occupational therapist was not necessary, was entirely rational. The reasoning was entirely sufficient in the context of the Tribunal’s findings of fact recorded in the passage quoted in paragraph 21 above.
29. Since the Tribunal’s conclusions on occupational therapy flowed directly from the findings in respect of J’s special educational needs in the Statement (which are not challenged), they were points on which further evidence or submissions were not required, and are appropriate for a specialist tribunal with members appointed for their expertise to consider. It is common sense that a child with handwriting difficulties whose needs are not so severe as to require direct occupational therapy should receive help with his handwriting. Advice from an occupational therapist is an entirely appropriate form of help.
30. So also the findings with regard to speech and language therapy in context take account of the evidence and are rational and sufficiently reasoned. The Tribunal had to consider whether it should be two sessions per week, as Ms Arnaud said. What it decided was consistent with Cath Clayton’s recommendation that he should have access to a speech and language specialist to implement an appropriate programme. The conclusion that J’s disorder did not call for direct speech and language therapy, and that appropriate programmes devised and monitored by a therapist would be sufficient, was entirely rational and the reasoning was entirely sufficient in the context of the Tribunal’s conclusions with respect to J’s speech and language needs (which are not challenged) and given that both of the schools that were being put forward were, by definition, language-rich environments.
31. It was not incumbent on the Tribunal to make a finding about whether J would attend Vale of Evesham. It was fully aware of the background and knew that it was not a mainstream school. It was self-evident that he needed reintroduction because he had been out of school for a considerable period of time. The Tribunal decision that there should be a programme, drawn up by the Authority in consultation with J, his parents, his school, his medical practitioners and the Authority’s educational psychologist, for the planned and sensitively managed reintroduction of J to school, is plain common sense, given J’s history as reflected and recorded in the Tribunal’s decision.
32. This common sense response was made by the Tribunal in the context of the fact that J had not attended any school for 2 years, and had not received any teaching for 6 months, and in view of his anxiety and tendency to depression, the suicidal aspect of which the Tribunal took very seriously, and the risk of him being affected by parental anxieties. Even if the provision for the reintroduction programme was not specific, that did not constitute an error of law, because the kind of programme ordered by the Tribunal was not amenable to, or did not require, specificity. Rather, it was the kind of programme that needed flexibility, and required input from a number of persons and professionals.
33. It was plain that the Tribunal rejected the argument that The schoolcould not cater for a child with J’s needs. The Tribunal was well aware of the profile of pupils attending at Vale of Evesham. There is nothing to suggest that J did not match this profile. There was nothing to suggest that The schoolcould not make the provision specified for J at Part 3 of the Statement.

VII Reasoning of the Tribunal

34. In this section I shall set out the main material available to the Tribunal on the principal controversial questions, and its references to that material in relation to its conclusions. The decision must be read as a whole. It is apparent that many of the features overlap, and in particular many of the points made are really another way of saying that F College is more suitable than Vale of Evesham. It is not, of course, for me to consider, still less decide, whether the Tribunal was correct in its conclusions.

A. Occupational therapy

35. The material available to the Tribunal included the following. The report on his behalf by Patricia Rush, an occupational therapist, was that he demonstrated evidence of dyspraxia, and recommended that he should receive occupational therapy provided by a paediatric occupational therapist with experience in working with children with complex difficulties involving Asperger’s Syndrome and dyspraxia. He would require this occupational therapy weekly for approximately 45 minutes with the therapist then liaising with his teachers or any learning support assistants. The medical report by the community paediatrician, Dr Solan, did not indicate significant motor problems.
36. Mrs M gave evidence that she had made inquiries, and that occupational therapy was not available to The schooland the Health Service had a long waiting list and could not immediately provide therapy.
37. On this aspect the Tribunal found that J had some gross motor difficulties, mainly to do with muscle tone and balance, and he had some fine motor difficulties which impaired his handwriting. But in the context of his anxiety and his communication difficulties, these were not particularly severe. In the course of the assessment the authority received advice from a consultant community paediatrician, who after assessing J’s motor skills doubted whether he had any dyspraxic difficulties. There was no occupational therapist regularly attending at Vale of Evesham, and occupational therapy was arranged as required. After the Statement was issued J’s parents arranged for him to be seen by a private occupational therapist (Patricia Rush), who assessed his gross motor skills as on the 1^ar centile of the population, and recommended among other things 45 minutes a week of paediatric occupational therapy.
38. The Tribunal concluded that, in the case of occupational therapy, it considered J’s needs could be met appropriately by advice to the school, and by physical education and help with his handwriting, for which direct therapy by an occupational therapist was not necessary. The suggested amendments to the Statement in regard to occupational therapy were accordingly deleted and the Tribunal substituted: “Occupational therapy advice to the school (including its learning support assistants) on one or more motor skills programmes aimed at addressing the motor skills identified ... especially as regards J’s handwriting” and adding: “J to have access to a dedicated text processor and typing programmes.”

B. Speech and language therapy

39. The following material was available to the Tribunal. A report was prepared on behalf of J by Nancy Arnaud, a speech and language therapist, recommending that J urgently needed direct speech and language therapy. A speech and language therapist, Cath Clayton, of the Birmingham Children’s Hospital, concluded that J required access to a great deal more support than could usually be offered within a mainstream setting. A more appropriate environment would be a language unit attached to a mainstream school offering a supportive educational setting specialising in the teaching of individuals with communication disorders and the associated problems with literacy and sequencing. He would learn more efficiently if pupil numbers were smaller and staff numbers higher. He should have access to a speech and language therapist to implement or oversee an appropriate programme to facilitate his understanding of specific concept development within the curriculum as well as support his social learning needs. The community paediatrician, Dr Solan, also recommended speech and language therapy in the context of a graduated return to school. The Authority informed the Tribunal that the speech and language therapy at The schoolwas provided by two speech and language therapists who each worked one full day in the school.
40. The Tribunal found that J had a communication disorder within the autistic spectrum with associated delayed and disordered language development, obsessive behaviour and difficulties with social interaction. The parties agreed that his expressive language and vocabulary skills were at the 1^st centile, but the evidence was conflicting on the severity of his receptive skills. The Tribunal referred to the diagnosis of semantic pragmatic language disorder, and to the complexity and severity of his communication difficulties.
41. The Tribunal noted that two speech and language therapists visited The schoolone day each per week. It referred to the fact that in the course of a statutory assessment the Authority had received advice from a Birmingham children’s hospital speech and language therapist (Cath Clayton), who suggested that J should attend, as distinct from a mainstream school, a language unit attached to a mainstream school offering a supportive educational setting specialising in communication disorders and associated problems.
42. After the Statement was issued, J’s parents arranged for him to be seen by the same private speech and language therapist (Nancy Arnaud) who in October 2000 had considered that he did not need speech and language therapy. This time she assessed his receptive and expressive language as both on the 1^st centile of the population and recommended that he should receive two sessions of 40 minutes each per week of direct speech and language therapy, a language programme and social skills group teaching.
43. The Tribunal noted that J’s parents wished Part 3 of the Statement to specify provision for direct speech and language therapy. The proposed amended Statement required two sessions of 40 minutes of direct speech and language therapy per week within an educational context so that the therapist could liaise with teaching staff; a programme of classroom based intervention devised by a speech and language therapist and reviewed on a monthly basis; attendance at a social skills group delivered by a speech and language therapist on a weekly basis for 30 or 40 minutes in a group of no more than 2 or 3 children and 1 adult; liaison between the speech and language therapist and J’s parents including a meeting on a minimum of once termly basis.
44. On this aspect the Tribunal’s conclusion was as follows:

“We do not consider J’s disorder calls for direct speech and language therapy, but appropriate programmes devised and monitored by a therapist would be sufficient.”

Accordingly its Order deleted all the provisions in the suggested amendments to the Statement, leaving only a provision as follows: “Attendance at a social skills group monitored by a speech and language therapist.”

C. Reintroduction to school/refusal to attend

45. The Tribunal had before it a report submitted by an educational psychologist, Rukhsana Meherali, on J’s behalf in which she said that J could be described as a school phobic so far as his previous school experience was concerned, although he was not phobic about schools in general and told her that he would very much like to go to school. Talking about school in general he was quite certain that he really wanted to go back to school and learn things but he was equally certain that he did not want to go to a mainstream school as he would not cope. He wanted to go to F College because he had liked it very much on his visit there and felt that he would be comfortable with both the teachers and the children. The evidence for the Authority from the community paediatrician, Dr Solan, was that he required a programme of a graduated return to school, preferably in a specialist setting, where small groups, 1:1 interaction and speech and language therapy contributed to his ongoing multi-disciplinary management.
46. There was nothing in the case statement on behalf of the parents to the effect that he would refuse to attend, nor in the report of the educational psychologist consulted on his behalf. There was evidence before me that J attended the Tribunal hearing for a few minutes and said that he wanted to go back to school and he wanted to go to F College. He said he did not want to go to The schoolas it was too large, he was worried about eating lunch with so many other pupils and he did not think that the other pupils there were like him. There was also evidence before me that in summarising her points, the parents’ solicitor told the Tribunal was J was a very vulnerable child who although keen to return to school was terrified of going to Vale of Evesham, and that Mrs M made the same point.
47. The material in the decision of the Tribunal which has a bearing on this aspect is that it referred to the fact that by November 1998 J was refusing to go to school, although he moved to another primary school the following year. It recorded that J did not like the large numbers at Vale of Evesham. It concluded that as he had not been to school for 2 years, he would need a carefully considered and sensitively implemented plan to reintroduce him to education.

D. Vale of Evesham/F College

48. The case statement on J’s behalf before the Tribunal was that the overall size of The schoolwould cause him difficulties, as he would not be able to cope at break and lunch times with so many other pupils. He was keen to return to school but extremely anxious about being placed at a school that could not meet his needs. He had visited several schools with his parents and felt confident that F College was an appropriate school for him.
49. Mr Mathews, on behalf of the Authority, accepted that there was no regular occupational therapy input at The school but this could be provided by the local NHS Trust if required. At the hearing Ms Coxon submitted on behalf of J that The schoolcould not meet J’s needs, in particular because it could not provide the therapies he required.
50. The Tribunal’s decision stated that The schoolwas a special school maintained by the Authority for up to 148 pupils aged 2 to 19 with a wide range of learning difficulties including autism. In the main part of the school they are taught in groups of 10 or 11. The majority of pupils have moderate learning difficulty; 20 have severe learning difficulty; 3 have profound and multiple difficulties. 33 have disorders within the autistic spectrum, of whom 13 are taught in the main part of the school, the rest in specialist provision in groups of 5 or 6. Pupils can and do transfer readily between the main and specialist parts of the schools as their needs require. There are 15 residential places for pupils with autistic spectrum disorder. A pupil such as J would be initially in a main-part class taught by a full-time qualified teacher and a full-time trained learning support assistant. 2 speech and language therapists visit the school 1 day each per week. There is no occupational therapist regularly attending: occupational therapy is arranged as required.
51. The Authority put the cost of a place at The schoolat £4,325 a year for term time only attendance, but as the Authority will incur those costs whether or not J attends there, the marginal cost of a place for him would be nil. Shared transport would cost £3,040 a year. Speech and language and occupational therapy would come at no charge from the NHS, and the Authority does not envisage it not being so delivered.
52. Mr and Mrs M wanted F College to be named in Part 4 of the Statement mainly on the ground that it offers teaching in small groups and specialises in children with Asperger’s Syndrome. They objected to The schoolon the ground that it did not specialise in children with Asperger’s Syndrome, would not provide J with an appropriate peer group because of the presence of children with moderate and severe learning difficulties, and would involve 2 hour’s travel by taxi and bus each day.
53. The cost of a place at F College would depend on factors such as the levels of teaching support, of individual care staff supervision, of psychiatric oversight, and of input from speech and language therapists, occupational therapists, and counsellors. Those levels would not be known until after the school had assessed J once he had started there. Its provisional view was that it would charge £57,000 a year. The maximum fee, assuming that J required speech and language and occupational therapy, extra care and counselling and psychiatric oversight, would be about £75,000 a year. In either event, transport costs for weekly boarding would be between £7,800 and £12,430 a year.
54. I quote again the Tribunal’s conclusions on this aspect:

“d. The main dispute between the parties in this appeal is over choice of school. In the Code of Practice that was in force when the Authority issued J’s statement, there was emphasis on appropriateness and suitability to meet the child’s special educational needs. Advice in the current Code about residential provision seems to assume the existence of multi-agency agreements, on which we had no evidence, but irrespective of that, we do not think any of the criteria in paragraph 8:74 apply to J, and we do not think his learning difficulties call for a residential placement.

e. On the evidence, we think the provision proposed at The schoolsuitable to meet J’s special educational needs. Particular advantages are the opportunity for him to transfer to the specialist provision and back into the main part of the school if that is required. The opportunity for extended social activities out of school time (as at F) would be helpful, subject to adjustment of transport arrangements.

f. The authority does not object to F as unsuitable, and on the evidence we think F could also meet J’s needs.

g. Given (a) the very great difference in cost of the two placements proposed, even assuming the lowest estimates of fees and transport costs, (b) our view that residential accommodation is not necessary to enable J’s special educational needs to be met, and (c) our view that The schoolcould make suitable provision for J, we consider that for J to attend F would not be compatible with the avoidance of unreasonable public expenditure.”

VIII Overall conclusion

55. I will first indicate my conclusions on the adequacy of the reasoning in relation to each of the main controversial matters, but as I have already indicated they interact with each other in relation to the conclusion which is the real object of the challenge, namely that J should go to The schoolrather than F College. I have no doubt that the right approach is to look at the whole of the decision and to consider the specific points in their context and in the light of the policy of the 1996 Act to avoid unreasonable public expenditure.
56. It is impossible to fault the nature or extent of the reasoning on occupational therapy. The Tribunal has plainly taken into account the evidence put forward on J’s behalf and come to a rational conclusion. It made a finding of fact (paragraph 21 above) the first sentence of which is plainly based on the statement as amended (and consequently not challenged), and after taking into account the report of the occupational therapist, Patricia Rush. Its conclusion that his motor difficulties were not particularly severe and that his needs could be met appropriately by advice to the school, and by physical education and help with his handwriting, for which direct therapy by an occupational therapist was not necessary, was entirely rational. The reasoning was entirely sufficient in the context of the Tribunal’s findings of fact. I accept the Authority’s argument that they were points on which further evidence or submissions were not required, and were appropriate for a specialist tribunal with members appointed for their expertise to consider. The Tribunal was not applying its expertise in a way which would have required it to put this recommendation to the parties.
57. It is also absolutely clear that in relation to speech and language the Tribunal took into account the material before it and came to a properly reasoned and rational decision. The Tribunal took into account the diagnosis by his private educational psychologist of semantic pragmatic language disorder, and referred to the reports of Cath Clayton and Nancy Arnaud. It took account of the parents’ submissions and of the availability of therapy at Vale of Evesham.
58. J’s parents say that in finding that TheSchool was suitable to meet J’s needs, the Tribunal failed to consider or make any appropriate finding in relation to the evidence of J’s parents that J would not go to the school and could not be persuaded to go to the school. J had previously failed to attend a secondary school and thereafter been unable to cope with home tuition. I am satisfied that the Tribunal was entitled to make the provision it did. It plainly relied on the evidence put before it. The Tribunal was entitled to rely on the evidence of the educational psychologist and on J’s own evidence to reach the conclusion that what was needed to be addressed was his long absence from schooling. The Tribunal was entitled to prefer the evidence of the educational psychologist and its assessment of the evidence of J, and its failure to refer to the assertion of Mrs M and her solicitor that he would simply refuse to go could not vitiate the reasoning or the decision. Nor is this the type of provision which is vitiated because it is non-specific. It is simply a common sense addition of a short term nature to support the provision for education at Vale of Evesham. It follows that the Tribunal cannot be criticised on the basis that the Tribunal was using its own expertise to put forward a solution which the parties had not had an opportunity to address.
59. Nor do I consider that there is any force in the contention that the Tribunal wrongly treated the objections to the School as being solely on the ground that it did not specialise in children with Asperger’s Syndrome, would not provide J with an appropriate peer group because of the presence of children with moderate and severe learning difficulties, and would involve two hours travel by taxi and bus each day. It is absolutely plain that the Tribunal took into account the evidence and submissions on direct speech and occupational therapy, and appreciated that The schooldid not have a full provision to meet what were argued to be J’s needs. In the light of the evidence it is impossible to say that these reasons are inadequate or unreasonable. This was a conclusion to which the Tribunal was obviously entitled to come on the material before it, and on the basis of the duty in the Education Act 1996 to have regard to the avoidance of unreasonable public expenditure.
60. When the decision is looked at in the round, it is apparent that what the Tribunal has done is to consider all of the evidence on the various aspects, which all interconnect with each other – motor skills, language and speech skills, lack of schooling for two years, the evidence on occupational and speech therapies, the evidence of J’s attitude to schooling, the relative facilities at the schools, and the relative costs. In such an exercise it is always possible to criticise a Tribunal for having failed to mention some argument or some piece of evidence. In my judgment the Tribunal has complied with its duty to give reasons in summary form (and indeed given very full reasons) which are adequate, intelligible and deal with the substantial points which have been raised so that the parties can understand why it has been reached. The appeal will therefore be dismissed.
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MR JUSTICE LAWRENCE COLLINS: For the reasons given in the judgment I have handed down I dismiss the appeal.PRIVATE 

MR SHELDON: Within the judgment there are a couple of typos which it might be sensible to correct. I do not know if your Lordship wishes to do that in open court.

MR JUSTICE LAWRENCE COLLINS: In case there are any others, why not fax them in by Monday at noon.

MR SHELDON: They are very minor points. My Lord, the appellant in this case is subject to public funding. However, as a matter of principle the local authority having resisted the appeal would like its costs not to be enforced in the usual way.

MR FRIEL: My Lord, obviously I would apply for Legal Services Commission to be assessed of my client's costs and would not resist an order in terms that my learned friend has put forward, although I doubt it is practical in any such case. Another thing - I find it difficult to pick up errors at such a short period of time so if I could have permission to avail myself of your Lordship's offer to my learned friend I would be happy to do that. Whether there be something or not I am not predicting.

MR JUSTICE LAWRENCE COLLINS: By midday on Monday.

MR FRIEL: One last point. I am instructed to apply for leave to appeal. There is one point of principle which is unusual in this case, that is use in this case of the Tribunal's own expertise to come up with its own formula. While the White case is not raised, Richardson v Solihull and Others, that was a case in which the Tribunal said to itself there was a school available in the UK. Nobody addressed that before the court. There is no clear guidance as to the extent to which a Tribunal can use its own expertise in this area. Even when one goes to older cases such as More v National Insurance(?) cases - I bear in mind your Lordship's point about general application of law in recent authority - there is no clearer clarification on the point. The second point I would draw to your attention is that the reasons in relation to speech therapy still do not explain the fact that neither party's evidence was accepted. Given the interrelationship - and I take your Lordship's point there was the whole thing, if I can put it that way, both in relation to the condition and in relation to the approach to it, the detraction even from the authority's case here reducing it substantially is an important issue and if authority cannot explain to my Lord in their own argument there is obviously deficiency in reasoning and the authority did not know what the Tribunal had done. We do not. Certainly if your Lordship had been able to derive that then of course with respect I bow to your Lordship's assessment of the situation, but it is a curious fact in the case that that is what happened and that is inexplicable by either side; so for these reasons I respectfully seek permission to appeal from my Lord.

MR SHELDON: My Lord, I resist that application. I leave it to your Lordship's good judgment on that point.

MR JUSTICE LAWRENCE COLLINS: I think this was a very very clear case in which the Tribunal obviously looked at the matter in the round and although there might be some odd criticisms here or there of the reasoning it seems to me to be a very plain case in which there is no realistic prospect of success.

MR FRIEL: My Lord, the press expressed interest in reporting the case. The standard position in the courts, given the age of my client's son, is to order the case to be reported without reference to his full name and home address or the school, because that would identify him. Unless there has been an active request for publicity (which there is not here) it is normally the case that the court makes an order to protect a child under section 39 of the Children and Young Persons Act. Given there are very significant mental health problems here and very significant other difficulties I would apply that the standard position be maintained. It is a matter ultimately for my Lord, I accept.

MR JUSTICE LAWRENCE COLLINS: I cannot imagine there is any public interest in names being revealed, although if it is going to be a question of press interest in a case against a £75,000 a year private school you are not going to be able to keep names of schools out of it very easily.

MR FRIEL: I hear what you say. Certainly name and address, so he will not be identified and his mother will not be.

MR JUSTICE LAWRENCE COLLINS: As far as the court file is concerned normally just a press reporting restriction. That does require some form of order, does it?

MR SHELDON: My Lord, it does, we do not resist the request in respect of the appellant being named as "M", for instance, which is what is normally done; but beyond that I do not think it is necessary to make any further order.

MR JUSTICE LAWRENCE COLLINS: Is there an order normally drawn up to that effect?

MR FRIEL: That he be referred to only as M, and home address not identified beyond what your Lordship says. I do not need to go further than that.