England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2
		5 November 2003

1. MR JUSTICE MAURICE KAY: This is a statutory appeal against a decision of a Special Educational Needs and Disability Tribunal, that decision having been made on 24th July 2003. The Tribunal dismissed K's appeal against a Statement of Special Educational Needs, made in respect of her daughter, E, by the Local Education Authority, the London Borough of Wandsworth.
2. E is 12 years of age. She has profound and multiple learning difficulties, suffering from cerebral palsy, epilepsy, visual impairment and other conditions. Up until July 2003 she attended G Primary School which is a maintained special school for children with profound and multiple learning difficulties. Her education has been the subject of a Statement of Special Educational Needs for some years.
3. In the summer of 2003 the time came for her transfer into the secondary education system, and so it was that steps were taken towards the production of a Statement of Special Educational Needs in respect of her secondary education. The Local Education Authority produced a statement in February 2003. It followed the form required by statute and was divided into the customary parts, 1, 2, 3 and 4. When K saw that document she was aggrieved that there was no provision in it for three types of facility which E had been provided with at G. They were: access to a hydrotherapy pool, music therapy from a music therapist and the use of a well resourced multi-sensory room.
4. The statement promulgated by the Local Education Authority provided in part 4 for the placement of E at P School from September. K then appealed to the Tribunal, taking issue with the items to which I have referred and expressing the wish that E should attend B School, which is a state maintained special school outside Wandsworth and within the area controlled by Kingston and Richmond, the neighbouring Local Education Authority.
5. In due course the Local Education Authority responded within the proceedings, addressing the three disputed areas and saying of the issue of sensory provision;

"E currently has sessions in the sensory room at G School once a week with her class group and once every two weeks with a teacher for the visually impaired together with another child. There is a room at P School offering similar provision. This is known as the interactive technology room. E would be able to access this provision. In addition the class teacher uses a multi-sensory approach to teaching and learning in the classroom and the children also have access to soft play equipment for multi-sensory experiences. Enhancements for the multi-sensory provision available to secondary PMLD pupils at P School are planned by the LEA."

6. The Local Education Authority promulgated a revised statement in part 3, dealing with special education provision. It referred to education provision to meet the needs and objectives in these terms:

"(A) Access to a broad and balanced developmental curriculum with a multi-sensory environment and opportunities for regular multi-sensory experiences ... (H) Access to hydrotherapy sessions on a fortnightly basis. (I) Opportunities for regular music therapy or music teaching utilising music therapy techniques."

7. Part 4 again advanced P School as the appropriate placement. It will not be necessary for me to say anything more about the question of the hydrotherapy and the music therapy. Those are no longer in dispute following the decisions of the Tribunal. Suffice it to say that K's appeal met with a degree of success in relation to them.
8. I therefore turn to the decision of the Tribunal concentrating on the issue of access to a multi-sensory room. The decision of the Tribunal records some of the evidence in the following terms.

"Mrs du Preez was E's teacher for the last two years until 23rd May. She told us how E accessed the sensory room at G. She told us that the room was well equipped and of sufficient size to enable E to be taken out of her wheelchair and lie on a board or mattress which were better for E than being in her wheelchair ..."

"Ms Charman is the Head Teacher of P. She told us that P had a sensory room but it is too small for E to be taken out of her wheelchair. The room is used specifically for focus work by the therapists and the teacher for the visually impaired, who at P would be the same person that works with E at G.

"Ms Charman told us that she recognised that children such as E needed a multi-sensory curriculum and that unfortunately P had limitations in space. They do have soft play equipment which is brought out into the hall. Mrs Norgate [an LEA official] accepted that P's accommodation, particularly the sensory room, was not ideal. It was not as large or well resourced as B, but she said that appropriate equipment was in the room and E would have access to it."

"Mr Urani is an Independent Educational Psychologist who prepared a report for K ... Mr Urani did not consider that there was objective evidence that the sensory room at P, although smaller than G's, would not be able to be used to meet E's educational needs."

9. In a later passage, dealing with Ms Charman's evidence about P, the Tribunal states.

"Ms Charman accepts that there are limitations in the accommodation at P and medium term solutions are being considered by the LEA. She considers that despite the facilities, P is an appropriate placement for E and that P could meet her needs."

10. Turning, finally, to the decision and reasons for the decision upon this issue, the Tribunal stated:

"Of the concerns expressed over the suitability of P, we do not consider that the size of the sensory room at P affects the ability of the school to provide appropriate provision. Although it is smaller than the room at B or indeed G, it has the appropriate equipment and E would work with the same visually impaired peripatetic teacher that she currently has. She has not expressed any concern about P's sensory room. Although Mrs du Preez stressed the value of E being able to be taken out of her wheelchair for the sensory sessions, this did not appear to have been a factor which Mr Urani considered worth mentioning in his report. Indeed, he considered that there was no objective evidence to support the view that the facility at P, although smaller, would not be able to meet E's educational needs in this area. We accept Mr Urani's opinion."

11. In the light of that finding, K's appeal in respect of the placement in part 4 was dismissed. I should add, for the sake of completeness, that if part 4 had identified B as the appropriate placement there would have been a significant cost implication for Wandsworth.
12. The appeal to this court is brought on a narrow basis. On behalf of K, Mr Wolfe submits that the Tribunal misstated and, by inference, misunderstood the evidence, particularly the evidence of Ms Charman. Whether this alleged defect is expressed in terms of a material error of fact, in accordance with the passage in the speech of Lord Slynn of Hadley in Alconbury v Secretary of State [2001] 2 WLR 1389, paragraph 53, or whether it is expressed in more conventional Wednesbury terms as the taking into account of something which ought not to have been taken into account, namely an erroneous understanding of the evidence, seems to make no real difference. I do not understand there to be any dispute about that.
13. It is appropriate to set this in a little more context. A Special Educational Needs and Disability Tribunal does not have facilities for the verbatim noting of evidence, nor for the mechanical recording of it. No transcript of evidence is made or is available to this court on a review, or on an appeal. The question then arises, what should this court look at in order to arrive at a view of what the evidence was. There is no doubt that where the Chairman's notes are available, as they are here, they must be the starting point. The question then becomes whether they must also be the finishing point.
14. In the case of S v Special Educational Needs Tribunal [1995] 1 WLR, 1627, Mr Justice Latham was faced with a similar conundrum, and he said, at page 1635.

"In view of the assertion that there was no 'relevant evidence' upon which the tribunal could have come to the conclusion that it did, it was inevitable that affidavits would be sworn to provide the court with the full picture and, in particular, to inform the court as to the expertise and experience of the witnesses. To the extent that they provided that material they were therefore affidavits which were admissible and properly receivable."

15. That passage received the consideration of the Court of Appeal in Oxfordshire County Council v GB and others [2001] EWCA, 1358, and in the course of his judgment, Lord Justice Sedley said;

"We would add, however, that we do not consider it generally appropriate that a statutory tribunal which is required to give reasoned decisions should respond to an appeal by purporting to amplify its reasons ... If reference needs to be made to the evidence for the purpose of the statutory appeal, the ordinary resort is to as much of the documentation and notes of evidence as will help to determine what material there was for the impugned part of the decision~... Fresh evidence, even on judicial review, has a restricted ambit ... which can be no larger on a statutory appeal. Decisions such as that at Latham J in S v SENT [1995] 1 WLR 1627, 1635, admitting evidence on the question whether there had been any admissible basis for the SENT's decision, may fall within this restricted field, especially since SENT reasons are permitted by the SENT Regulations 1994, reg. 30(2) to be in summary form; but the practice described ... of parties submitting evidence at will to the court hearing an appeal against a SENT decision is in our present view unacceptable."

16. I am assisted by these authorities to the conclusion that the court should not refuse to consider such evidence as witness statements submitted by and on behalf of the parties. After all there may be cases -- and I have a recollection of one in a different jurisdiction -- where the material provided by persons who were present at the original hearing was to some extent identical. In appropriate circumstances it can then amount to an agreed supplementation of the Chairman's notes which can never be verbatim or totally comprehensive. They might even, if both parties agree, amount to a record in substitution for the Chairman's notes where it is the common view of the parties that those notes are erroneous.
17. However, where the additional material manifests a disagreement as to what was said over and above the Chairman's notes, in my judgment it would usually be inappropriate to accept one person's recollection in preference to another's unless there is a clear reason for so doing. For example, two or more persons present produce contemporaneous notes and they are in accord. It is not difficult to imagine a court preferring that version to a third version proffered by somebody else who had taken no contemporaneous notes.
18. In the present case we have the Chairman's notes. We also have witness statements from K; from her representative at the hearing, Susan Zang; from Mrs Norgate of the Local Education Authority; and from the Chairman himself. Although there are areas of common ground, they do not all speak with one voice on the crucial issue. That, of course, relates to the evidence of Ms Charman who has not, herself, made a witness statement. In these circumstances, I consider it inappropriate in this case for me to rely on anything other than the Chairman's notes. The question then becomes, do they provide an evidential basis for and are they consistent with the tribunal's findings.
19. The crucial passage is the one which attributes to Ms Charman the opinion that "P is an appropriate placement for E." In the decision of the Tribunal, and the reasoning of that decision, the Tribunal did not expressly rely on what Ms Charman had said. Rather it relied upon what Mrs du Preez and Mr Urani had said. However, they did say that Ms Charman, who was undoubtedly an important witness, had given evidence that "P is an appropriate placement."
20. When I consider the Chairman's notes, I do not find that any of the three relevant passages is capable of carrying a construction that Ms Charman stated that:

"P is an appropriate placement."

21. The three passages read as follows.

"Offer curriculum for E but because of facilities cannot offer appropriate placement ... Not able to provide appropriate. Multi-sensory facilities. Can provide SEN needs and meet her needs within the resources."

22. Then some 6 pages later.

"Ms Charman believes educ. Children have right to education and can deliver curriculum. To enable them to become active members of the community."

23. It seems to me that the first of those three passages is unequivocally to the opposite effect of P being, "An appropriate placement." The second is, at best, ambiguous. The third is unclear. Of course, I have well in mind that I am not construing a statute or a transactional document. It would be wrong to take too rigorous an approach. Regrettably, however, and after taking a broad view of the notes, I conclude that they do not provide a basis for what the Tribunal attributes to Ms Charman in an important respect.
24. I have considered whether, quite apart from the evidence of Ms Charman or any misunderstanding in relation to it, the results of the hearing in the Tribunal might inevitably have been the same in any event. It is not a perverse conclusion, as is apparent from the fact that it justifiably draws support from what Mrs du Preez and Mr Urani have said. However, I am unable to conclude that the outcome would inevitably have been the same with or without any misunderstanding of Ms Charman's evidence.
25. In the light of all of this, and with regret, I come to the conclusion that this appeal must be allowed and the matter be remitted to the Tribunal. There may be some scope for the precise form of the order and counsel can address me accordingly.
26. MR WOLFE: My Lord, I am grateful. In terms of my Lord's order, we would simply seek an order quashing the Tribunal's decision and remitting it back to the Tribunal for re-determination by a fresh Tribunal. I think that is the standard approach in these cases and we would obviously seek our costs to be paid, to be assessed and agreed.
27. MR JUSTICE MAURICE KAY: Yes.
28. MISS STEYN: My Lord, I do not resist either of those matters. May I just say that in relation to the judgment there are a number of points at which your Lordship refers to Mrs du Preez, where I think the intention was to refer to Mrs Graham, the visually impaired peripatetic teacher, there is someone else who is Mrs du Preez.
29. MR JUSTICE MAURICE KAY: Yes, Mrs du Preez was the teacher who had been teaching her at the other school.
30. MISS STEYN: That is right, but the peripatetic teacher who had also taught her at the other school was Mrs Graham. I think there are a number of references that should be to Mrs du Preez.
31. MR JUSTICE MAURICE KAY: When I was referring to Mrs du Preez it was mainly, I think, in the context of -- I may be perpetuating an error made by somebody else, made in the Tribunal, but if one looks at the decision, I think the parts that I referred to included Mrs du Preez taken from the bottom of page 11, and then I think --
32. MISS STEYN: Yes, that is correct at that stage.
33. MR JUSTICE MAURICE KAY: I see, when it says on page 15, "She has not expressed any concern," that is Mrs Graham.
34. MISS STEYN: That is correct.
35. MR JUSTICE MAURICE KAY: You are quite right, quite right. So when I referred to them both in the conclusions of the Tribunal drawing on Mr Urani and Mrs du Preez, it should really be all three, should it not?
36. MR WOLFE: Yes, there are four --
37. MR JUSTICE MAURICE KAY: By admission in the case of Mrs Graham and by conclusion in the case of Mrs du Preez and Mr Urani.
38. MISS STEYN: Yes, I just thought I would draw that to your attention but I do not --
39. MR JUSTICE MAURICE KAY: Thank you very much indeed.