QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF V|
|(BY HER MOTHER AND LITIGATION FRIEND M)||(CLAIMANT)|
|CUMBRIA COUNTY COUNCIL||(DEFENDANT)|
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RICHARD CLAYTON QC (instructed by Cumbria County Council) appeared on behalf of the DEFENDANT
Friday, 7 February 2003
Crown Copyright ©
"She has a number of complex conditions including congenital microcephaly and cerebral palsy. She has a developmental age of 6-9 months and is completely dependent for all her needs. She suffers from frequent respiratory illnesses which have on occasion required her admission to hospital and which require her parents to be very vigilant of her health on a 24 hour basis. V is unable to walk unaided but has developed limited independent mobility using a specially designed David Hart Walker. Despite all these difficulties, V has a cheerful disposition and enjoys various activities including using her computer and looking at picture books."
V also has the benefit of energetic and devoted parents who, dissatisfied with her Statement, exercised their right to apply to the Special Educational Needs Tribunal. At that Tribunal they were successful. A number of amendments were directed for the Statement of Educational Needs, and, of course, it is that Statement which forms the statutory basis for her education.
"On that date the Defendant to carry out a functional seating assessment and then to order the appropriate chairs. In the course of this assessment there shall be an appropriate assessment of matter relating to feeding."
Merely reading that order gives a flavour of the unusual nature of the order in the context of judicial review. It is, of course, a mandatory order, but a mandatory order in very specific detail. Sadly, because of the ongoing dispute between M and the local authority, the terms and conditions upon which V returns to school have not been capable of being agreed, with the result that she has remained at home.
"The Defendant shall by Tuesday the 7th day of May 2002 secure the service of a speech and language Therapist trained in Affective Communication, who will oversee the affective communication between V and her teacher."
In this respect, M, in her evidence filed for this application, says this:
"Rather than provide a Speech and Language Therapist trained in affective communication, the LEA has provided a one off training session from Heather Swain, Educational Psychologist. The LEA did say in Court, when asked by Mr Justice Jackson, that Heather Swain would not be available to provide this input and I believe that she does not have the time to do so. It is vital that a Speech and Language Therapist trained in affective communication is employed as specified by the Learned Judge and by the Statement. There has been a complete disregard of the Order."
The local authority's response to this allegation comes from Elizabeth Dawson, the education officer for Cumbria, who deals with the allegations, supplemented as they are by other witnesses. She says, in terms:
"The LEA has complied with this Order. Lucy Rigby, one of the speech and language therapists based in James Rennie School has been trained in Affective Communication. The details of this are contained in the witness statement of Heather Swain filed in these proceedings in January 2003. M states in paragraph 7 of her witness statement at B552 that 'The LEA did say in court, when asked by Mr Justice Jackson, that Heather Swain would not be available to provide this input and I believe that she does not have time to do so'. M is mistaken. I was the LEA's representative at the hearing on 12 March 2002. I did not say in court that Heather Swain would not be available to provide training in Affective Communication. Although Heather Swain is able to provide training in Affective Communication V's SSEN actually stipulates that the communication assessment of V should be overseen by a speech and language therapist. Heather Swain is not a speech and language therapist. However, she has trained Lucy Rigby, a qualified and experienced speech and language therapist, and a number of other staff at James Rennie in Affective Communication. Lucy Rigby is now able to train and support other staff in Affective Communication and Heather Swain is acting as an overall consultant."
Mr Rawlings says: well, that is not good enough. What the order plainly envisaged was that there would be an additional person, a speech and language therapist, who would have been trained in Affective Communication. Therefore, the local authority, even on its own case, has not dealt with the breach.
"Daily opportunities to step and walk, with adult support and also using her David Hart Walker, to promote her weight bearing, physical exploration and mobility skills."
She also states, in these terms:
"The LEA has interpreted this as daily opportunities to walk, which also includes the use of the Hart Walker once a week."
She says that that interpretation was made clear to the parents and there was no challenge to it at the hearing in March. She also gives more detail in relation to that allegation.
"The Defendant to employ one full-time member of staff or more than one parttime member of staff with effect from Monday the 15th day of April 2002 in order to enable compliance with the requirement in the Standard [sic] of Special Educational Needs for one-to-one support."
In relation to that, M states that it is, in fact, the lack of staffing which is precluding V's return to school:
"As I understand it, a member of staff will be made available for V for three hours a day between 9am and 12pm. However V, has in the past, experienced problems within the classroom before she was withdrawn from school as a result of staff shortages. I believe that the class she was in before was a much smaller class than the class that she is due to go into."
Once again, this is dealt with in some detail by the local authority who assert that they have complied with the order and that M has misunderstood the requirements of the Statement. The Statement reads:
"1:1 enabling support for the majority of her time in school including group work and break and dinner times. It is expected that a key worker will be identified who has overall liaison but that the support will be shared with others who are familiar with V and able to meet her needs. It is also expected that there will be specific handling sessions which will require the assistance of two adults."
"V's parents mistakenly believe that a fulltime member of staff must be employed exclusively to meet V's needs and in addition to staff already employed by the school. The SEN tribunal did not specify how V's provision was to be arranged. Indeed, they cannot do this as it is not within their remit. The manner in which staff are deployed is for the school to arrange provided the requirements of the SSEN are met."
She goes on to say:
"In April 2002 when V was due to return to James Rennie three additional part time members of staff were used to ensure the staffing ratio was as stipulated in V's SSEN, both to provide the 1:1 support for the majority of her timetable and to ensure the assistance of more than one adult for specific moving and handling sessions. However, only one new part time member of staff was employed and two other staff were moved from other duties in the school when some pupils left."
"The Defendant to consider the Claimant's mother's letter dated 10th day of January 2002 as [soon as] practicable and thereafter to make their recommendations pursuant to Regulation 17 of the Education (Special Educational Needs) Regulations 1994 within the Statutory time frame."
This relates to the question of reviews in relation to V. This part of M's statement seems to me to demonstrate the intractable nature of the dispute between her and the local authority. She effectively, during the course of it, accuses the local authority of doing the minimum, and using these sections as a means of avoiding their responsibility in relation to the child. This is dealt with, again fully, in the local authority's evidence.