CO/814/2003 

Neutral Citation Number: [2003] EWHC 1725 Admin
IN THE HIGH COURT OF JUSTICE 
QUEEN'S BENCH DIVISION  
THE ADMINISTRATIVE COURT 
Royal Courts of Justice 
Strand
London WC2 

Thursday, 26 June 2003
 
B E F O R E:

MR JUSTICE MOSES 

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THE QUEEN ON THE APPLICATION OF TOTTMAN
(CLAIMANT)

-v- 

HERTFORDSHIRE COUNTY COUNCIL
(DEFENDANT) 
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Computer-Aided Transcript of the Stenograph Notes of 
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MR J FRIEL (instructed by Felix Moss Solicitors) appeared on behalf of the CLAIMANT
MS E LAING (instructed by Hertfordshire County Council) appeared on behalf of the DEFENDANT
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J U D G M E N T 
(As Approved by the Court)
Crown copyright©

1.	MR JUSTICE MOSES:  This is an appeal against a decision of a Special Educational Needs and Disability Tribunal (the Tribunal) dated 17th December 2002.  It is a statutory appeal pursuant to section 11 of the Tribunals Act.  Before this Tribunal the essential question was whether the needs of Oliver could be met by provision at Hertfordshire County Council's non-residential school, St Luke's, or whether those needs could only be met by means of a structured curriculum and programme during the whole of the waking day.  This, it was accepted could not be delivered at St Luke's but could be delivered at the school preferred by the parents, a private residential school known as Purbeck View.  
2.	The Tribunal concluded that St Luke's could meet the needs it identified.  Its conclusions were set out as follows: 
"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.  
3.	In Part 2 the reference to aggression (having disappeared completely) was deleted in the new statement, and the end of Part 2 was amended to refer to the current behaviour of Oliver.  Under Part 3 two objectives were added to improve Oliver's self-help and independent skills, and for Oliver to develop an awareness of appropriate behaviours and responses, and reduce obsessional and challenging behaviour.  
4.	In respect of the provision to meet those needs, the statement was amended to provide: 
"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."  
At 6: 
"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."   
5.	The appeal of the parents was dismissed.  The essential ground of this appeal, clothed in different ways, was that the Tribunal erred in law in failing to identify provision for out-of-school hours during the waking day, both before and after school.  It is submitted that the Tribunal did accept that there was a need for such a provision, or ought to have done, but the Tribunal failed to specify how such a provision should be met.  
6.	The statutory obligations of the local educational authority are set out within section 324 of the Educational Act 1996:  
 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."
7.	The provisions were helpfully explained by Pitchford J in R (On the Application of FJ) v Cambridgeshire County Council [2002] EWHC 2391 Admin.  In that case Pitchford J stressed the importance of the obligation of the Education Authority, in particular by pointing out that the authority would not be performing its statutory duty if directly or indirectly it imposed upon the parent, when specifying educational provision under section 324(3), an obligation to meet part or all of that provision himself or herself (see paragraph 60).
8.	In my judgment, the essential flaw in the arguments advanced by Mr Friel on behalf of Oliver's parents is that the Tribunal did not in fact reach a conclusion that programmes of special education should be provided throughout the waking day; consequently, there was no need for the Tribunal to specify the means whereby that need could be satisfied.  Indeed, that lay at the very heart of the dispute.  The parents took the view that their son did need a programme of special education which should be provided throughout the waking day.  There was no dispute but that that could not be provided at St Luke's.  That Oliver needed such special provision was supported by Mr Reid, the chartered educational psychologist, who provided a full report.  The report demonstrated that Oliver (aged 10 years and 6 months at the date of the hearing) had complex learning difficulties which constituted significant impairments in the areas of socialisation, all aspects of communication and language.  He suffered from rigidity in thought patterns, which were within the autistic spectrum.  His case was exceptional in that he exhibited unusual sexualised behaviour including considerable aggression, a constituent part of his Autistic Spectrum Disorder.  
9.	It is clear that, notwithstanding the description of the difficulties faced by Oliver, the Tribunal rejected the view that he had a need for programmes of special education to be provided throughout the waking day.  In consequence of that rejection, they made no provision for such programmes to be provided throughout the waking day.  On the contrary, they stated that what was required was consistency throughout the waking day, not programmes of special education.  There is no other way that the decision can be read when read as a whole.  The provision in Part 3 refers to: "consistency of approach throughout the day and across all settings, ie home/school/ respite care/social activities with regard to programmes."  This found its way in that form in the amended statement.  Beside being ungrammatical, it is near to incomprehensible,  and I accept that it is ambiguous.  But it is plain to me reading the decision as a whole, and in particular the conclusions set out at (d), (f), (g) and (h), in the context of the evidence earlier recorded, that the Tribunal was not stating that the provision should be made for programmes throughout the waking day.  
10.	The decision of the Tribunal has been challenged by Mr Friel, on behalf of the parents, for its failure to specify what should be done outside the school working day.  The Tribunal had no obligation to do so once it had found that the special educational needs of Oliver, as opposed to his others needs, could be met at St Luke's school.  There is a distinction between special educational needs and other needs.  It is inherent in the statute, but it is not always easy to draw.  There will often be considerable overlap.  As Sedley LJ pointed out in London Borough of Bromley v Special Educational Needs Tribunal and Others [1999] ELR 260 the concept of educational needs and provision is wide.  He said:
"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." 
11.	Part of the provision to meet Oliver's special educational needs was liaison and consistency in approach.  But it was quite impossible, and indeed dangerous for the Tribunal to make any more particular or specific provision in relation to consistency and liaison.  The need for liaison was bound to vary perhaps from day-to-day or week-to-week.  The need could not be rigid, or rigidly identified.  What was important was that it should take place regularly and when needed.  
12.	The decision of the Tribunal was further challenged on the basis that it was not open to the Tribunal to reach the conclusion that the needs of Oliver could be met without the provision of all waking-day programmes and curriculum.  It was said that the parties had agreed that this was so, and the Tribunal had misunderstood.
13.	By letter dated 6th December 2002, Mr Moss, a highly experienced and skilful solicitor, who was acting and continues to act for the parents, set out those parts of the statement at Part 3 which he said should be included.  He said:
"(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.  
14.	The Tribunal did record that it was accepted that there should be consistency of programmes and approach throughout the waking day, and that was reflected in the provision that they ordered to be made.  But so far as supervision by an adult, that of course straddled both the period during which educational needs would be met and during the rest of the waking day.  No one has suggested that that will not be provided.   
15.	This is a sad case.  Everyone reading of it will have admiration and sympathy for Oliver's parents, but it is clear that the Tribunal took the view, and was entitled to take the view, that the structured and expertly delivered programmes of learning were not required to meet Oliver's needs throughout the waking day.  It was sufficient that they would be provided during school hours so long as there was good and regular liaison after, and nothing was done to undermine the programmes within the school.
16.	It was further argued that since the amount of social care which was to be provided outside school hours was not specified it was not possible to reach a conclusion, as the Tribunal thought, that provision of special educational needs at the residential school would be more expensive than that which was to be provided at St Luke's.  That was a matter of fact.  The Tribunal records that it was agreed that a residential school would be more expensive and, even if it had not been, there was clearly evidence before the Tribunal on which it was entitled to reach that view.
17.	Finally, it is said that the rejection of the parents' case, supported by Mr Reid, namely that there should be programmes and a curriculum delivered out of school hours was unreasoned.  But reading the decision as a whole, and particularly paragraphs (d), (f), (g) and (h) of the Tribunal's conclusions, it cannot be said that their rejection was unreasoned.  In those circumstances, this appeal fails.
18.	MR FRIEL:  My Lord, I am asked to ask for permission to appeal.  My Lord, the point really that arises here is that although Mr Moss of course very fairly agrees that he did not agree to (e), and nobody else did, he agreed to (a) and (b) and the Tribunal could not order (a) and (b).
19.	MR JUSTICE MOSES:  Yes.
20.	MR FRIEL:  I know your Lordship has not seen a great deal of merit in it, but it is important because if the parties go to the Tribunal and both parties agree, the Tribunal should not be coming up with revisions without warning them that it is completely different to that which they agreed.
21.	MR JUSTICE MOSES:  Yes, thank you very much.
22.	MR FRIEL:  My Lord, I am very grateful.
23.	MR JUSTICE MOSES:  No, I will not grant permission.  This seems to me to be merely an attack upon the merits of the Tribunal's conclusion and I do not think there is anything in it.  Thank you very much.
24.	MISS LAING:  My Lord, I am instructed to ask for costs.
25.	MR JUSTICE MOSES:  Yes.
26.	MR FRIEL:  Well, my Lord, obviously, with some regret, I do not think I can say anymore.
27.	MR JUSTICE MOSES:  Are they to be assessed?
28.	MR FRIEL:  My Lord, we are happy to agree for them to be assessed.
29.	MISS LAING:  My Lord, we have not prepared a cost schedule.
30.	MR JUSTICE MOSES:  Well, then, I will order costs to be assessed in the normal way.  Thank you.