QUEENS BENCH DIVISION
London, WC2A 2LL
B e f o r e :
SITTING AS A DEPUTY HIGH COURT JUDGE
|- and -
|(1) THE SPECIAL EDUCATIONAL NEEDS & DISABLITY TRIBUNAL
(2) LONDON BOROUGH OF BARNET
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)
Elisabeth Laing (instructed by the London Borough of Barnet) for the Respondent
The SENDIST did not appear and were not represented
Crown Copyright ©
Mr. Lloyd Jones:
"In essence, they do not believe that Northway is able to meet all of S's special educational needs. This is particularly because it would be an alien environment to S who has been steeped in a Jewish religious environment up until now and would not be able to properly fit into secular day special school environment which contradicts her home setting and separates her from her Jewish identity.
Placing her at Northway would also be disadvantageous not only because she will have difficulty accessing the educational curriculum which is very different to that which she has been exposed to up until now but also because practically she will become very excluded by definition due to her need to take off further time for religious holidays, having to leave early on Fridays for the Jewish Sabbath during the winter, having to be withdrawn from assemblies or other environments which deal with religious aspects of the curriculum as well as other difficulties with keeping to a strict kosher diet. The additional strain and anxiety caused to S by being placed in this kind of situation will not be amenable to her making appropriate educational progress and will be to her detriment."
Accordingly, Mr. and Mrs. A sought amendments to Parts 2, 3 and 4 of the Statement.
"As S is very aware of differences, it is important that she remains with her peer group as much as possible. Removing her from lessons for reasons of religion may increase her already significant feelings of being different. It is very important that withdrawal is kept to the minimum.
S needs an environment which can offer her an integrated approach to her learning including therapeutic input.
She needs to be able to understand her own religious upbringing within the context of her social and cultural needs."
Mrs. Birnbaum considered that the required provision under Part 3 included the following:
"S needs to be in a small school which specialises in the education of children with moderate learning difficulties and complex needs. She should be with children who have similar needs to herself and whose behaviour is a model. Because of her insecure social skills she would benefit from being with a group of Jewish children so she can share social activities and visit their homes with ease. The whole school environment should provide a seamless provision between S's home and school life so that she can generalise her learning in all contexts and not be confused. In this sense a Jewish education is an educational need as S will have difficulty in learning from experiences that are alien to her. Her learning takes place best with concrete experiences. The use of objects of reference must be steeped in her own cultural environment to ensure a meaningful experience and solid transfer. Keeping her with a peer group and avoiding withdrawal will enhance her confidence and self esteem. A Jewish school will enable this to occur. A secular curriculum in a non-Jewish school will inevitably increase her feelings of difference rather than similarities.
S responds well to consistency and enjoys the predicable sequence of Jewish days, festivals and diary dates. These can be used to promote her learning and encourage the use of routine in her life."
"The essential issue that we had to decide was whether S's special educational needs could be met by the LEA proposal, namely placement at Northway an LEA maintained special school or at Kisharon, an independent special school for orthodox Jewish children."
A section headed "The Facts" was followed by a section headed "Conclusions" which it is necessary to set out in full:
In reaching our conclusions we have taken into account section 9 Education Act 1996 whereby an LEA must have regard to the general principle that children should be educated in accordance with parents wishes so far as it is compatible with the avoidance of unreasonable public expense. We have also taken into account the guidance set out in the Code of Practice in particular paragraph 8.65 whereby an LEA must consider very carefully a preference stated by parents for a denominational non maintained special school. This duty to respect the parents' view is also set out in the European Convention on Human Rights which is now part of our law. It was conceded that S's Jewish faith of itself cannot constitute a special educational need.
a. We find that both schools could meet S's special educational needs. They offer two very different models of education, one a multi-cultural model that embraces diversity, the other an exclusive faith model. There was no issue that both schools have a high level of expertise in teaching children with moderate learning difficulties, have a high staff : pupil ratio and that S would benefit from being in a resource with therapists on site. It was agreed that S would benefit from further assessment of her speech and language needs and occupational therapy needs, both delivered directly if appropriate. It was further agreed that she could be assessed by a psychiatric social worker and her mother will follow this up.
b. We agree that S's needs should be further assessed. On the evidence we heard and read it was not clear why she made such limited progress at Rosh Pinah, albeit in a Jewish environment in keeping with her parents' wishes. An obvious explanation is that she was wrongly placed in a mainstream school and could not access the curriculum, so that ultimately she spent large parts of the day being withdrawn from the classroom. We have noted her parents concern that S's difficulties may have been in part due to a lack of support and not receiving any input at all from a speech and language therapist or occupational therapist. It has yet to be seen what progress she can make in a special school where it was accepted that her needs will be better understood and provided for. Her levels of engagement, understanding and ability to follow the differentiated curriculum will have to be monitored. It is obviously to be hoped that they will rise and that this will increase S's sense of self esteem and prevent any emotional barriers to her learning.
c. Mr and Mrs. A both agreed that Northway and Kisharon are good schools. Their preference for one rather than the other is understandably linked to their very strongly held view that the family's religious beliefs with all their daily manifestations are not in any way compromised. Whilst we accept that Mr. and Mrs. A would find it very difficult to accept anything other than an orthodox Jewish school for S, we are not satisfied that S's special educational needs require that. The law only requires that parental wish to be actively respected and we are satisfied from the examples given by Mrs. Burgess that the school takes that responsibility very seriously.
d. We find that placement at Kisharon would not be an efficient use of the LEA's resources.
e. We order that S's statement be amended in line with the LEA's proposals set out in WD2 annexed hereto. This reflects areas agreed by the parties. We find that it incorporates a need to respect their S's faith without that being an exclusive object."
"She has a need for consistency in her educational experience [particularly to reinforce home/school environments]."
"S is prone to becoming physically aggressive towards other children if she cannot be fully included in the activities of those children. [S needs to be included in all activities with her peers so that she can be a valued member of her environment.]"
"When learning to broach more complex forms of communication between signs and words, S works better with [Jewish] objects of reference which relate to her existing understanding of her [Jewish] environment and provide her with a link between home and school."
"S also works better in general with visual cues, when [Jewish] objects of reference including Jewish objects of reference are used they serve as an excellent aid to her memory, as they are meaningful, motivating and offer the opportunity of frequency of experience [linking home and school]."
"S needs an educational environment which is sensitive to [also able to integrate] her social, religious and cultural needs. [S needs to be able to understand her own religious upbringing within the context of social and cultural needs in order to develop her self-image and consequently her self-esteem.]"
The following proposed amendments were refused.
"[S needs an educational environment which is also able to integrate her social, religious and cultural needs. S needs to be able to understand her own religious upbringing within the context of her social and cultural needs. She needs consistency.]"
"[S needs an appropriately integrated, focussed and holistic approach to her learning in order to make even basic educational progress. The whole school environment should provide a seamless provision between S's home and school life.]"
"[She will have access to learning about the predictable sequence of Jewish days, festivals and diary dates in order to encourage her sense of routine and promote her learning.]"
"[She should be in a group of Jewish children so that she can share social activities and visit their homes with ease."]
However, the Tribunal did accept the following amendment:
"Concrete Jewish objects of reference should be used as appropriate in order to bridge more complex forms of communications between signs and words and between home and school.".
The following proposed amendment to the Statement of Provision was rejected:
"[S requires a placement with a group of children with moderate and/or complex difficulties who provide an appropriate social model and share similar values and therefore a Jewish school would be appropriate as it can provide a whole school environment and a holistic approach appropriate to all her needs including her social and emotional needs.]"
(1) The Tribunal approached the questions it was required to decide in an incorrect order;
(2) The Tribunal failed to give reasons for rejecting the parental requests;
(3) The Tribunal failed to give reasons for rejecting Mrs. Birnbaum's evidence;
(4) The Tribunal failed to consider the relationship between S's Jewish religion and identity and the ability to meet her special educational needs;
(5) The Tribunal failed to give effect to S's rights under the European Convention on Human Rights, Articles 8, 9 and 14.
"… Part 4 cannot influence Part 3. It is not a matter of fitting Part 3 to Part 4 but of considering the fitness of Part 4 to meet the provision in Part 3."
For the same reasons, it is essential that a Special Educational Needs and Disability Tribunal decide these issues in that order.
"This hearing did not differ from the usual pattern. The Chair identified the issues in this case as being (a) What was the provision at Northway and how it would meet S's needs. (b) What were the cost elements including transport costs. With regard to (a) discussion centred around three questions for the school. 1. What are the needs? 2. What reference does the school make to religious and cultural needs? 3. Can Northway meet the totality of need?"
However, Miss Patry, who represented the Appellants, states that while the Chair did try to identify the issues she did not do so in such an absolute way as Mr. Luck suggests. Miss Patry states that her recollection is that she did not identify point 1. However, the Chair's notes read as follows:
1. What is outstanding Pts 2 & 3 –
- points of disagreement
- not written in correct way
2. (Parents (rep)). Which of S's special educational needs could not be met at Northway.
This strongly suggests that the Tribunal appreciated the correct sequence in which these issues are required to be addressed. Accordingly, I am not persuaded that the Tribunal took a decision on placement and allowed that to influence its decision on needs and provision.
"The decision of the tribunal may be given orally at the end of the hearing or reserve, and, in any event, whether there has been a hearing or not, shall be recorded forthwith in a document which, save in the case of a decision by consent, shall also contain, or have annexed to it, a statement of the reasons (in summary form) for the Tribunal's decision, and each such document shall be signed and dated by the Chairman."
There is, therefore, a duty on the Tribunal to give reasons but only in a summary form. In S (a minor) v. Special Educational Needs Tribunal and Another  WLR 1627 Latham J., as he then was, referred to an earlier provision requiring the Special Educational Needs Tribunal to give a statement of reasons in summary form and observed that:
"It seems to me, therefore, that a balance has to be struck between giving effect to the clear intention of Parliament that the requirement of reasons is to be met by a short form document and proper concerns that the right of appeal under s.11 of the Tribunal Inquiries Act 1992 would be emasculated if the document did not at least enable the aggrieved party to identify the basis of the decision with significant clarity to be able to determine whether or not the Tribunal had gone wrong in law.
I consider that the balance is properly struck by requiring that the statement of the reasons should deal, but in short form, with the substantial issues raised in order that the parties can understand why the decision has been reached." (at p.1636).
There, it was held that the obligation was satisfied by a short form conclusion as to what evidence has been accepted and what evidence had been rejected with a short form reason for that conclusion.
"… the aggrieved party should be able to identify the basis of the decision with sufficient clarity to be able to determine whether or not the Tribunal had gone wrong in law. Further, … statements of reasons should deal in short form with the substantial issues raised in order that the parties can understand why the decision has been reached; in other words, what evidence is rejected and what evidence is accepted."
"She has a need for consistency in her educational experience."
"S is prone to becoming physically aggressive towards other children if she cannot be fully included in the activities of those children."
"S is acutely aware of being different and removing her from lessons may increase her already significant feelings of being different."
"Her degree of confidence should be promoted."
"Her behavioural and emotional difficulties should be addressed."
"S needs an educational environment which is sensitive to her social, religious and cultural needs."
In the same way as in R v. Secretary of State for Education, ex parte E  ELR 312 the special educational need for "support to encourage a sense of self" identified in Part 2 demanded careful consideration of its relationship with the suggested need for a Jewish school, in the present case S's special educational needs identified above required careful consideration of the impact of her Jewishness on the means of meeting those needs and on her placement. Of particular significance here was the inevitable need to withdraw S from certain lessons and activities at a non-Jewish school because of the requirements of her Jewish faith.
THE DEPUTY JUDGE: For the reasons set out in my written judgment, I propose to make an order that the decision of the tribunal be quashed and the matter remitted for reconsideration by a differently-constituted tribunal. Copies of the judgment can now be handed down.
MR WOLFE: My Lord, I am grateful.
THE DEPUTY JUDGE: Mr Wolfe, perhaps it would be appropriate for me to mention at his point that I have made an order under the Children and Young Persons Act prohibiting the publication in newspapers of any information revealing the identity of the child, S.
MR WOLFE: My Lord, I am grateful for that reminder.
My Lord, I think a potential form of words for the order has been placed on your desk, which I hope is consistent with your Lordship's comments, firstly, and also has been the subject to a certain amount of discussion between the parties. I think it is uncontroversial, except that I need to draw your Lordship's attention to paragraph 3 in the draft, which invites your Lordship to make an order that the rehearing be expedited and listed as soon as possible. I think on further discussion we are not sure your Lordship has jurisdiction to make such an order.
THE DEPUTY JUDGE: That was going to be my next question. I doubt that I have. It is really a matter for the tribunal.
MR WOLFE: What we were going to invite your Lordship to do, if your Lordship were willing to do so, was simply to mention a shared wish -- certainly on the parties' part, and I hope the court might share the same view -- that that end be achieved. But obviously that is not by way of an order, it is by way of an expression of hope rather than anything else.
THE DEPUTY JUDGE: The position at the moment, as I understand it, is that S has started at Kisharon school this term and has been there since the beginning of term.
MR WOLFE: She is there effectively on a bursary from the school, and nobody wants to prolong that goodwill any longer than is absolutely necessary. Of course everybody wants a speedy resolution to the rehearing question.
THE DEPUTY JUDGE: It may assist if I say that is the shared wish -- is that right, Miss Laing -- of the parties.
MISS LAING: Yes.
THE DEPUTY JUDGE: It may assist then if I say that it is the shared wish of the parties that the rehearing should take place as soon as possible. It also seems to me that it would be extremely sensible and in the best interests of child S if that were to be possible.
MR WOLFE: My Lord, I am most grateful for that.
THE DEPUTY JUDGE: What about the other parts of the order?
MR WOLFE: I think the other parts are uncontroversial. I would simply ask my Lord to make an order in those terms.
THE DEPUTY JUDGE: Yes.
Miss Laing, anything else that you would wish to raise?
MISS LAING: My Lord, no. Can I simply thank you Lordship for sitting early this morning, which was very helpful.
THE DEPUTY JUDGE: Not at all.
I will make an order in the following terms: (1) the decision of the Special Educational Needs and Disability Tribunal issued on 24th July 2003 be quashed; (2) that the appeal against the statement of special educational needs dated 14th February 2003 be remitted to a freshly-constituted tribunal panel for rehearing; (3) that the second respondent pay the appellant's costs on a standard basis to be assessed if not agreed; and (4) that there be a detailed assessment of the appellant's costs in accordance with the Community Legal Service (Funding) Regulations 2000.
Mr Wolfe, is it necessary for me to incorporate in any order the order I have made under the Children and Young Persons Act?
MR WOLFE: My Lord, I think not. I think that goes as a separate order on the court file, your Lordship having made it at the beginning of the hearing the other week.
THE DEPUTY JUDGE: Yes, very well. I am very grateful to both counsel for your assistance, thank you very much indeed.
There may be some further copies of the judgment, I am not sure we have brought enough copies to court. I can provide one more copy at this stage. I hope that will be of assistance. Thank you very much.