QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF TOTTMAN||(CLAIMANT)|
|HERTFORDSHIRE COUNTY COUNCIL||(DEFENDANT)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MS E LAING (instructed by Hertfordshire County Council) appeared on behalf of the DEFENDANT
Crown Copyright ©
"a. From the reports and assessments submitted by the parties and the information given at the hearing we conclude that the amendments agreed by the parties to Part 2 of the statement are appropriate to describe Oliver's special educational needs.
B. Although stated in Part 2, the parties dispute whether Oliver's aggressive behaviour to his peers was eradicated at Southfield. We consider that this is of little current relevance. He has been out of school since July 2002. We conclude that disputed reference is unhelpful and will not reliably inform his teachers. It should not be contained in the current statement.
C. From the reports and assessments submitted by the parties and the information given at the hearing we conclude that the amendments agreed by the parties to Part 3 of the statement are appropriate to specify provision necessary to meet Oliver's needs. The further specification of provision suggested by each party appears to describe the school they have proposed. In reaching our conclusions we have borne in mind the provisions of paragraph 8:37 of the Code of Practice, this states 'LEAs must make decisions about which actions and provisions are appropriate for which pupils on an individual basis. This can only be done by a careful assessment of the pupil's difficulties and consideration of the educational setting in which they may be educated.'
D. From the description of St Luke's within the papers and the information given by Mrs Storey, Mrs Gainsborough and Mrs Stocks we conclude that St Luke's has ben resourced appropriately for pupils with ASD, understands their needs and can provide the expertise and specialist programmes to meet them. This includes the consistency of the same LSA throughout each daily session. We note that there is input from a SALT who will assess and devise a programme.
E. We note from Mrs Goulding that the programme and methods utilised are similar in both schools. We conclude that during the school day St Luke's can make the provision Oliver needs.
F. All parties accept that Oliver should have consistency of programmes and approach throughout the waking day. They have agreed amendments to Part 3 of the statement to that effect. We have considered whether this necessarily requires that he is in the same setting throughout his waking day and needs residential curriculum within a boarding school. We note that neither Mr and Mrs Tottman nor their specialist advisors stated that this consistency should extend across holidays.
G. Oliver is an individual considered by the parties and specifically stated by Mr Reid to have potential to gain a degree of independence and functioning inside the wider community. From the information available we do not consider that he requires to be within the same environment throughout his waking day. Providing the arrangements for liaison and consistency between those responsible for him are sufficiently strong, we consider his needs can be met and his progress will not be at risk; indeed, opportunities for generalisation may be enhanced.
H. We have considered the arrangements for liaison with others by St Luke's. We accept that Mrs Stocks has facilitated good communication with parents, agencies and others concerned and that any reservations regarding Oliver's management and wellbeing can be quickly identified and discussed.
I. Following e. and h. we conclude that St Luke's can meet Oliver's needs.
J. As the cost of Oliver's provision at St Luke's combined with any likely Social Services package is significantly less than the cost of published fees for attendance at Purbeck, we conclude that the naming of Purbeck in Oliver's statement will involve unreasonable public expenditure and that Mr and Mrs Tottman's preference cannot prevail.
K. In reaching our conclusions, we have had regard to the Code of Practice, in particular paragraphs 8:32 to 8:90."
As a consequence of those conclusions, it ordered Hertfordshire County Council to amend its statement of special educational needs. Those amendments can best be seen by comparing the statement of special educational needs dated 30th May 2002 with the amended statement on 14th February 2003.
"Staff will provide Oliver with consistency of approach throughout the day and across all settings i.e. home/school/respite care/social activities with regard to programmes. The school will liaise frequently with home to ensure this consistency. The frequency of these discussions should be carefully planned by both parents, schools and other agencies involved. There will be planned opportunities for all involved with Oliver to share their experiences of him in order to continually develop further strategies for his management."
"Oliver will be part of a small class group (not exceeding eight pupils), with additional staff (not less than two) training in meeting the needs of pupils with autism (sic). Oversight of his programmes of study, learning and social needs by a teacher who has expertise and training in meeting the needs of children with autism. Oliver will be provided with opportunities for after-school activities for pupils Special Needs."
324. (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.
(2) The statement shall be in such form and contain such information as may be prescribed.
(3) In particular, the statement shall-
(a) give details of the authority's assessment of the child's special educational needs, and.
(b) specify the special educational provision to be made for the purpose of meeting those needs, including the particulars required by subsection (4).
(4) The statement shall-
(a) specify the type of school or other institution which the local education authority consider would be appropriate for the child.
(b) if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement, and.
(c) specify any provision for the child for which they make arrangements under section 319 and which they consider should be specified in the statement.
(5) Where a local education authority maintain a statement under this section, then-
(a) unless the child's parent has made suitable arrangements, the authority-
(i) shall arrange that the special educational provision specified in the statement is made for the child, and.
(ii) may arrange that any non-educational provision specified in the statement is made for him in such manner as they consider appropriate, and.
(b) if the name of a maintained, grant-maintained or grant-maintained special school is specified in the statement, the governing body of the school shall admit the child to the school.
(6) Subsection (5)(b) does not affect any power to exclude from a school a pupil who is already a registered pupil there.
(7) Schedule 27 has effect in relation to the making and maintenance of statements under this section."
The right of appeal was then given by section 326(1):
"The parent of a child for whom a local education authority maintain a statement under section 324 may-
(a) when the statement is first made.
(b) where the description in the statement of the authority's assessment of the child's special educational needs, or the special educational provision specified in the statement, is amended, or.
(c) where, after conducting an assessment of the educational needs of the child under section 323, the local education authority determine not to amend the statement.
appeal to the Tribunal against the description in the statement of the authority's assessment of the child's special educational needs, the special educational provision specified in the statement or, if no school is named in the statement, that fact."
"The potentially large intermediate area of provision which is capable of ranking as educational or non-educational is not made the subject of any statutory prescription precisely because it is for the local education authority, and if necessary the SENT, to exercise a case-by-case judgment which no prescriptive legislation could ever hope to anticipate."
"(a) Oliver will need consistency of approach throughout the day and across all settings in relation to all his educational programmes.
(b) Oliver needs adult oversight all the time because of his behaviours and for health and safety reasons.
(e) All programmes in connection with Oliver's self-help and independent skills, communication, reduction of his aggressive challenging behaviours and obsessional behaviours, socialisation, imaginative and imitative play and cognitive development to be delivered throughout his waking day within a consistent and structured environment."
The notes that the chairman of the Tribunal made in relation to that are somewhat cryptic (as a result of their interpretation in a typed copy) but that does not seem to me to matter, since Mr Moss very fairly in a witness statement accepted that there was no agreement in relation to paragraph 4(e): (see his third witness statement dated 17th June 2003). There was obviously no such agreement, since had there been there would have been no need for the Tribunal hearing, it being agreed that the provision identified in paragraph 4(e) of Mr Moss's letter could not be made at St Luke's.