QUEENS BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN ON THE APPLICATION OF KW
|(1) THE SPECIAL EDUCATIONAL NEEDS TRIBUNAL
(2) ROCHDALE METROPOLITAN BOROUGH COUNCIL
Smith Bernal Wordwave Limited, 190 Fleet Street
London EC4A 2AG
Tel No: 020 7421 4040, Fax No: 020 7831 8838
Official Shorthand Writers to the Court)
Mr. J. Findlay (instructed by Rochdale Borough Council Solicitors) for the 2nd Respondent
Crown Copyright ©
Mr Justice Mackay:
The relevant legislation
"S.312(1): A child has "special educational needs" for the purposes of this Act if he has a learning difficulty which calls for special educational provision to be made for him.
(2) Subject to subsection (3) .. A child has a "learning difficulty" for the purposes of this Act if
(a) He has a significantly greater difficulty in learning than the majority of children of his age.
(b) He has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area of the local education authority ..
(4) In this Act "special educational provision" means -
(a) In relation to a child who has attained the age of 2, educational provision which is additional to, or otherwise different from, the educational provision made generally for children of his age in schools maintained by the Local Education Authority ."
"S.324(1) If, in the light of an assessment . 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 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 school or other institution which the Local Education Authority consider would be appropriate for the child
(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 education or provision specified in the statement is made for the child; and
(ii) May arrange that any non-educational provisions specified in the statement is made for him in such manner as they consider appropriate .."
"The second subsection should specify all of the special educational provision the LEA consider appropriate for all the learning difficulties in Part 2, even where some of the provision will be made by direct intervention on the part of the authority, some will be made by the child's school from within its own resources, and some may be made by the health authority. It is the LEA that is responsible for arranging the provision in the statement, irrespective of who actually delivers it, unless the LEA is satisfied that the child's parents have themselves made suitable arrangements".
"Are the therapies which S needs directly related to his learning difficulties?"
On a reading of the statute he held that special educational provision was whatever was called for by a child's learning difficulty, namely by anything inherent in the child which makes learning significantly harder for him than most others or which hinders him from making use of ordinary school facilities.
"What is special about special educational provision is that it is additional to or different from ordinary educational provision (see s.312(4)). So far the meaning is open ended. It is when it comes to the statement under s.324 that the LEA is required to distinguish between special educational provision and non-educational provision; and the prescribed form is divided up accordingly".
He acknowledged that in practice there would be a:
"Potentially large intermediate area of provision which is capable of ranking as educational or non-educational".
He concluded that this was because the matter was not amenable to tight statutory definition but should rather be left to the judgement of the LEA and, if necessary, the SENT to identify on a case by case basis with the aid of their respective experience in this field. The High Court would only intervene where errors in law were shown.
The Cambridgeshire Case
"Like all pupils with severe learning difficulties the programmes used in A's educational setting will need to be re-enforced in her care setting because her educational needs extent throughout her waking day. This can be done by those caring for A, participating in devising her education programme and being guided on how to support her educational programme in the home setting by those working with her at school".
The Claimant argued that the Tribunal's conclusion that "It should be possible to meet A's out of school hours needs at home", by her parents participating in devising and supporting her programme amounted to an improper placing of a burden on to their shoulders which belonged on the shoulders of the LEA. The LEA said that, read as a whole, the Tribunal was not saying that she required a round the clock, highly structured and expertly developed programme of learning but attendance at school by day at which that programme was delivered and a measure of continuity of approach to A at home.
"Such a service would, in my opinion, include speech and language and communication skills training outside the experience of the main stream. The duty under s.324(5)(a) does not require the provision of a service which is not educational in the wide sense approved by the Court of Appeal in The London Borough of Bromley case. I therefore accept [the Appellant's] submission that if the Tribunal found special educational needs included, for example, the provision of specialist communications skills training in the home, the LEA and not the parent was under a statutory duty to provide it. Only if any separate arrangements made by the parent for provision were objectively suitable would the LEA be relieved of that duty. In my judgment the LEA would not be performing its statutory duty if directly or indirectly it imposed upon the parent, when specifying special educational provision under s.324(3), an obligation to meet part or all of that provision herself" (original emphasis).
"The Tribunal used the phrase "because her educational needs extend through her waking day". In what sense was that expression used? It seems to me that the Tribunal was mindful of the fact that this little girl communicated and behaved at the most basic level. She could not on her return home from school exercise the same capacity for play and communication which the ordinary 7 year old could. For this child all communication was an educational process. The tribunal did not, however, say that her educational needs should be met by a special educational provision throughout her working day. The special educational provision needed was that which would be provided in school; that is the expert delivery of one to one tuition and support with many repetitions and daily communications skills training with speech and language therapy. What it seems to me the Tribunal had in mind when considering A's home circumstances was the desirability that such communication with A as was possible could be best achieved by [her mother's] understanding of what the agreed programme at school was seeking to achieve. There would be no point in the school adopting a teaching strategy only to find that the strategy was being undermined at a basic level of communication at home. Hence in my view the reference . to supporting the programme at home, in other words adopting a constructive and compatible approach at home during times of non-educational care".
He therefore went on to conclude that on the facts before him the Tribunal was not requiring the mother to provide part of the child's special educational needs nor was it assuming that she would do so.
"Education is in the broad sense a continuing process. It does not stop at the school gate. The Judge's conclusion was that the Tribunal concluded that placement at [the relevant] school coupled with close consultation with her carers at home could meet A's needs. In my judgment the learned Judge's analysis of the Tribunal's reasoning is one that he could properly make .. the learned Judge was entitled to interpret the Tribunal's decision in the way he did".
"in which parents are required not only to participate but to formulate and deliver the programme that is quite permissible, and would meet G's needs if there were parental consent to such a regime. There is not. Accordingly I conclude that the LEA as failed to fulfil its statutory duty to arrange appropriate provision".
"Emphasis on developing [her] independent living/life skills in school hours and beyond".
Part 3 of the statement set out in detail the special educational provision proposed under the three headings required by the regulations it included the funding of a special support assistant for 15 hours a week in addition to that already provided within the school's setting. The relevant part of the Appellant's grounds of appeal to the Tribunal against the statement is to be found at 4(e):
"She requires a 24 hour curriculum whereby the whole of her schooling, including speech therapy, is implemented throughout as well as outside normal school hours in order to achieve the necessary repetition and reinforcement of skills. The normal school day makes the intensive programme required by her impossible".
The LEA's response to this in its reasons for opposing the appeal were:
"It is the LEA's responsibility to identify provision appropriate to I's educational needs only. It is not a requirement for this to be better provision than is available elsewhere nor to offer more in terms of time available for educational input than other placements."
While the first sentence of this response is accepted by the Appellant as correct, the second sentence is not understood, but it may mean that it was the LEA's position that they could not be required to make provision for educational needs outside the limits of the normal school day. At the hearing the chairman's notes, albeit in very compressed form, indicate that the Appellant's solicitor was seeking a:
"24 hour curriculum to achieve necessary repetition re-enforcement of skills, I need a residential curriculum."
To which he records the LEA's advocate as responding "[B School][the school proposed in Part 4 by the LEA] now: In partnership with parents/carer and other agencies offered a waking day curriculum now".
The Tribunal's decision
"A waking day curriculum provided in a residential school is required [by I's parents] to achieve the necessary repetition and re-enforcement of learning and skills so as to enable I to progress".
The LEA for its part:
"Did not agree that a residential school placement was necessary but agreed the principle of a waking day curriculum, arguing that this could be provided through a day school placement, in partnership with others supporting work out of school hours and in the home."
"D. Dealing with the first issue, we do not conclude from the evidence that I needs to be in a residential school setting in order for her educational needs to be met properly. There was clear evidence that her family provides ably for I in the family and local community setting. In particular it appeared to us that the family are able to liaise well with school, therapists and others (including the mobility officer if appropriate) in order to help I make progress out of school hours."
"As it is the low incidence of her particular combination of disabilities and the unique, idiosyncratic ways in which they interact with one another, can only really be addressed effectively where there is a recognition that her educational needs cannot be separated from her other needs (physical, sensory, social, self-care and hygiene, mobility etc.) since these are the bedrock upon which her communication, numeracy, literacy and other learning needs are crucially dependant; this recognition entails substantive periods of one to one teaching and the existence of an extended, what is now labelled the "whole day, the 24 hour curriculum" in which teachers, classroom assistants, speech therapist, physiotherapists, mobility instructors cooperate to implement the programme, by continuous teaching, practice, monitoring and re-enforcement in all the activities of the child's daily life."
This, therefore, was what he meant by the "24 hour curriculum". Armed with that and the results of his inspection of both schools his conclusion was that to meet these needs an educational setting was required where "a whole day, 24 hour system of education and care is in operation"; excellent though B School was, his judgement was that a placement at W School was necessary "to ensure that the totality and specificity of her needs are to be met". At the Tribunal the LEA's representative is recorded as putting her case in the way I have already recorded at paragraph 19 above.
"the quantity of support and level of expertise both from the school staff and those working in support of them from outside to ensure that I continues to make progress"
and later at H they concluded
"our judgement is that the staff at [B] together with the outside specialists in support of them would be able to provide appropriately for I's special educational needs".