QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE SPECIAL EDUCATIONAL NEEDS AND DISABILITY TRIBUNAL|
|THE LONDON BOROUGH OF BRENT||(DEFENDANTS)|
Smith Bernal Wordwave Limited
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
MR PETER OLDHAM and MR JULIAN MILFORD (instructed by London Borough of Brent Legal Services, Wembley, HA9 9HD) appeared on behalf of the DEFENDANT
Crown Copyright ©
"To provide a placement for D in a mainstream school with funding equivalent to 0.6 (19.50 hours) learning support to meet the needs as specified in Part 2. This provision is subject to an initial 6 monthly review and annually thereafter."
"ADHD where he is very impulsive and distractible. He is hyperactive with poor social skills. He has a very intense, sensitive temperament and quickly becomes upset, angry, anxious, over-excited and frustrated.
"Dyspraxia which affects his poor fine motor skills, poor organisation, sequencing and lack of attention to detail.
"High intelligence. D is a high functioning child with no cognitive difficulties who needs to be stretched.
"He responds well to praise and positive reinforcement. He learns in a quiet classroom with consistent strategies reinforced at all times."
"D needs a very small structured environment with highly skilled and experienced specialist teachers who can create and maintain an extremely positive, extremely firm and extremely consistent environment, individual work, social skills training in small groups, very tight structure and close, full-time supervision".
"D needs a small school with highly trained staff who can meet his needs of ADHD, Dyspraxia and High Intelligence. Until such time as an appropriate placement can be found he should remain at the New Learning Centre".
The letter went on to concede that D will in due course need full-time education in a school. However, the essence of the case being advanced by M was that for the time being D should remain at the New Learning Centre.
"D has mild dyspraxia which predominantly affects fine motor skills and in particular hand writing".
Thus, it omitted reference to difficulties with organisation, sequencing and attention to detail. The Tribunal did not accede to M's proposals so far as Part 3 of the statement was concerned, and it dismissed the appeal in relation to Part 4. In other words, it accepted that, following a period of induction, D should be educated at Kensal Rise.
"a. D has benefited from the therapeutic curriculum at The New Learning Centre and the time he has spent there has enabled him to rebuild his sense of self worth and develop a calmer, more controlled and reflective response to situations and individuals. The content of the curriculum, together with the best endeavours of M, do not enable D to have access to the National Curriculum. This is an important consideration, particularly given his age ... his ability and the fact that he has now been out of full time education for almost 18 months. There are very limited opportunities at The New Learning Centre for D to begin to integrate with other children and begin to extend his social and personal learning into a wider context.
b. We have been asked to specify an 'Education Otherwise' package in Part 4 of D's statement, The New Learning Centre being nominated to provide that package. For the Tribunal to make such an order, it must be satisfied that it is not appropriate for D to be educated at a school. We bear in mind that M, Dr Weinstein and The New Learning Centre have all indicated that the placement there is a short term, or transition, measure and that the aim is for D to have a school place in due course.
c. Our first task is to investigate whether D could be educated in a school.
d. We have necessarily paid attention to D's educational history thus far ...
e. On the basis of the evidence we heard regarding the staffing, resources and organisation of Kensal Rise Primary School from the content of its OFSTED Report and the evidence of its head teacher, we consider that it should be able to meet D's needs, and also note that Mrs Page [the head teacher] is very aware of the extent of the difficulties D had in his earlier mainstream place. Dr Weinstein was impressed with Kensal Rise Primary School, and with the head teacher, when he visited with M and he initially thought that a start there in September 02 for D would be appropriate. He is now of the opinion that it is not a suitable environment for D at the present. Mrs Page demonstrated to us a firm commitment and a flexible approach to meeting the needs of her pupils with special educational needs and to ensuring that the provision for them matched their needs. We were also impressed by the caution of her statement that she expected that the school could meet his needs, but could not guarantee it. She also said that she would be the first person to say if the placement was not working.
f. We are accordingly not satisfied that it is inappropriate for D to have a school named for him, as we are satisfied that it is likely his needs can be met at Kensal Rise Primary School.
g. We do not question that The New Learning Centre may have provided a valuable breathing space for D but it is not a substitute for the school placement that D is entitled to."
"(a) he has special educational needs, and
(b) it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for."
The rest of section 323 deals with the service of a notice on the child's parents, and the taking into account of any representations made by them.
"(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."
"(1) Where a local education authority are satisfied that it would be inappropriate for-
(a) the special educational provision which a learning difficulty of a child in their area calls for, or
(b) any part of any such provision
to be made in a school, they may arrange for the provision (or, as the case may be, for that part of it) to be made otherwise than in a school."
"In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State, the local education authorities and the funding authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure."
Ground 1: Failure to determine the special educational provision required by D
"D needs a very small structured environment with highly skilled and experienced specialist teachers who can create and maintain an extremely positive, extremely firm and extremely consistent environment ... social skills training in small groups, very tight structure and close, full-time supervision."
Ground 2: Misdirection in relation to section 319 of the 1996 Act
"Did the Tribunal ask itself the correct question in this case? Because if it did it matters not, it seems to me, whether specific reference was made by the Tribunal to any particular section of the Education Act 1996. Examination of the Tribunal's decision shows in my judgment that it clearly did. It set out the pros and cons of the two types of educational provision. It is clear from ... its conclusion that it looked carefully at [the school and home programme] and it did ask itself what was the correct provision for this child. I accept [the] submissions that that is an essential exercise before one goes on to s319. You cannot decide where to provide the provision until you have decided what that provision should be should be. I am unable to accept that the fact that s319 is mentioned in paragraph (a) of the Tribunal's conclusions means it approached matters from the wrong end. Nor do I think a great deal can be made of the reference to what the Tribunal first considered in that paragraph. I am unable to conclude that the Tribunal came to no conclusion on the central issue. It clearly did."
"Rather does it beg the question; it obscures the fact that 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."
Ground 3: Misdirection as to the meaning of "appropriate" in section 319
"Clearly the function and the duty of the county council under the Education Act 1996 is distinct from its function and duty under the Children Act 1989. In carrying out its statutory function and duty in relation to a child with special education needs, the welfare of the child is not the paramount consideration. That said, it is clear from s 324(4)(a) of the Education Act 1996 that the LEA has a duty to ensure that a child with special educational needs is placed at a school that is 'appropriate'. It is not enough for the school to be merely adequate. To determine if the school is appropriate, an assessment must be made both of what it offers and what the child needs. Unless what the school offers matches what the child needs, it is unlikely to be appropriate. The assessment of the child's needs necessarily imports elements of a welfare judgment. If there are two schools offering facilities and standards that exceed the test of adequacy, then I would hope that ordinarily speaking the better would judged appropriate, assuming no mismatch between specific facilities and specific needs. Parental preference obviously has a part to play in the assessment of what is appropriate. In a case where there appears to be parity of cost and parity of facilities, parental preference may be the decisive factor."
"... I apprehend that the case where the parents' choice (outside Schedule 27) might be determinative of the question what, if any, school should be named in the statement will be very rare; I doubt whether it would arise at all. At most, s9 creates a basis in favour of parental choice where more than one school is under consideration and where, to put it in very crude terms, everything else is equal."
Later, at page 474, he added:
"The pressure of parental choice, in a case where it is invoked by virtue only of s9, does not imply that the parents' choice is to be rejected only if the school nominated by them is categorically unsuitable. As I have said, the overriding consideration under Part IV is the fulfilment of the child's special educational needs. Parental choice is in the back seat."
"In my view the Tribunal was right to distinguish C v Buckinghamshire County Council as it did. The court in that case was dealing with a dispute between two forms of provision at school, not with a dispute between school and non-school provision in circumstances where, as here, the school provision is appropriate and there is therefore no power under s 319 to make arrangements for non-school provision."
Ground 4: Fairness and the failure to give reasons
"D has mild dyspraxia which predominantly affects fine motor skills and in particular hand writing."
It did not refer to "poor organisation, sequencing and lack of attention to detail". Mr Wolfe submits that this limitation had not been promoted or discussed in evidence or submissions, and that M had had no opportunity to comment upon it. He seeks to rely on R v Mental Health Review Tribunal, ex parte Clatworthy  3 All ER 699 at page 704, a decision of Mann J, and the well-known dictum of Lord Diplock in Mahon v Air New Zealand  3 All ER 210, at page 821. Moreover, he submits, the Tribunal did not give reasons for this aspect of its decision, such as would enable M to know why part of her proposal was rejected.
Ground 5: Misdirection in relation to cost of provision
"The cost of the Kensal Rise place would be £7,746 for a learning support assistant for .6 time (the remaining .4 would be funded from the school's resources) and £2,700 for the place (£10,446 in total)."
"I cannot possibly say that the result of striking the necessary balance would inevitably, or even probably, have been the same if the correct cost comparison had been made."