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
		10th November 2004

1. MR JUSTICE MOSES: L is 11 years and two months. He has been the subject for many years now of a Statement of Special Educational Needs. That statement had, until he reached secondary school age, named the Language Unit at Wallands County Primary School. The language unit, whilst within a mainstream primary school, had a cohort of eight pupils and so was able particularly to target L's difficulties, which were specifically related to language. There he was helped in a small group of others with similar complex speech and language problems.
2. On reaching secondary school age, and approaching September 2004 when he was due to go to a secondary school, it was obviously necessary to amend L's statement. This led to considerable dispute as to what was required. His parents, whom this court can only admire for the care, hard work and energy they have expended in seeing that he should have the most appropriate education, were anxious that he should attend Moor House School, a private institution, where, so they contended, his needs could best be met. The local education authority, mindful of course of their obligations that there should not be unnecessary expenditure, regarded it as appropriate that he should attend Peacehaven School, a mainstream maintained school, where, they say, provision could adequately be made to meet his needs.
3. Peacehaven was the school named in Part 4 of the statement. It was objection to that which primarily triggered an appeal to SENDIST. SENDIST amended the statement in some respects, but in relation to Part 4 Peacehaven remained named as the appropriate school.
4. There is now before this court an appeal pursuant to section 11 of the Tribunals and Inquiries Act 1992 against the decision of SENDIST issued on 22nd July 2004.
5. L has now been at the school since September. Half term has passed, he is now in the part of the term approaching Christmas, and some of the matters to which I shall need to draw attention have now been overtaken by events.
6. The legal framework has been dealt with in a large number of cases and it would be a matter of supererogation to identify in detail all the statutory provisions and the code of practice. Nevertheless, it is relevant to this appeal to point out that, pursuant to section 324 of the 1996 Act, the statement must describe the child's special educational needs (see section 324(3)(a)), the special educational provision to meet those needs (see section 324(3)(b)), and statements must be in the form prescribed by the Education (Special Educational Needs) Regulations 1994 (see regulation 13).
7. The first ground of appeal relates to the provision made in the statement in relation to the motor skills of L. The statement under Part 2, in specifying L's condition and needs, stated:

"[L] has significant fine and gross motor skills difficulties in the following areas:

(1) Dyspraxia with motor planning and sequencing problems

(2) Sensory Integration dysfunction

(3) Weaknesses in specific areas of visual perception, particularly reduced motor visual perception

(4) Visual motor skills in terms of shape construction and copying

(5) Disorganised approach to Worksheets

(6) Developing handwriting skills

(7) Motor planning, forward sequencing and the ability to cope with unfamiliar motor situations."

This was an amendment triggered by the grounds of appeal specified by his parents.

8. The complaint which is made is that whilst Part 3 again identifies the objective to deal with those needs, it fails altogether to identify the means by which that objective is to be achieved.
9. Part 3 identified a number of particular features of what was described in Part 2 as "significant fine and gross motor skills difficulties". At paragraph I(4) the aim of L's provision was required to be "To further develop fine motor skills together with visual perception skills". It also, at (5), identified a further aim, "To increase and further develop [L]'s gross motor skills and motor planning", and at (8) "To develop touch-typing skills".
10. The material that led to the amendment by SENDIST of those parts of Parts 2 and 3, in accordance with the arguments of the parents, particularly depended upon a report from Joanna Moore DipCOT SROT, a paediatric occupational therapist, which, in substance, was not disputed. There was no oral evidence given before the tribunal, but the written report which she advanced was not a matter of controversy. It identified the difficulties L faced, and then at page 229 set out a number of recommendations, which included, in particular at page 230:

"He needs regular weekly Occupational Therapy. He needs one individual session of direct 'face to face' contact a week."

11. An earlier report on behalf of the education authority from Miss Benson referred (at page 240) to a half-termly monitoring by the occupational therapist of the effectiveness of the school programme and recommended that a full reassessment should take place in May 2004, but that related to his time at the primary school.
12. Thus, the only specific evidence that dealt with the question of his significant deficit in relation to fine motor skills was that identified by Joanna Moore.
13. In response to the appeal to SENDIST, the local education authority pointed out that the occupational therapist employed jointly by the education authority and the NHS had left, and said at paragraph 4.17 of its response:

"For the interim period, the LEA has employed an OT privately from the Christmas Clinic. Clare Benson from the Clinic has therefore been supporting [L] for the summer term 04. There will be a handover to the new, permanent OT who starts work in August. She will continue to be employed jointly, and on a permanent basis, by the LEA and the NHS and will work with [L] at Peacehaven Community School providing the support outlined in his statement of special educational needs."

14. The difficulty, so it is alleged on behalf of the parents, is that nowhere in Part 3 of the statement is there identified precisely what occupational therapy should be provided to meet his significant deficit either with any precision or at all.
15. The relevant principles as to what a statement should contain are by now well known, but there is no better exposition than that given by Beatson J in R (on the application of L) v London Borough of Waltham Forest and another [2003] EWHC 2907 Admin, [2004] ELR 161 at paragraph 14. It is unnecessary to read out that paragraph, other than to say that it sets out four principles in relation to statements, which include the requirement that the statement should deal with substantial points that have been raised so that the parties can understand why a decision has been reached and identifies the basis of the decision.
16. The challenge is made on the basis that inadequate reasons are given as to why there is nothing further in Part 3 as to what should be done in relation to occupational therapy.
17. I question whether the appropriate basis of challenge is the absence of reasons. The appropriate basis of challenge, I would have thought, is the complete failure properly to deal with the question of the provision of occupational therapy within Peacehaven. In my judgment, if only in short, the statement of needs at Part 3 should, besides identifying the objective, at least have said some words about the means by which that was to be achieved.
18. Mr Auburn emphasises that the main focus of the appeal was in relation to the school which should be specified in Part 4. There is ample material to support that. That clearly was the significant area of dispute, and most of the statement, particularly between paragraphs A to F, were designed to deal with that, but the fact that that was the main focus of the dispute does not obviate the need for at least some reference to the means by which the objective of dealing with his motor skills deficit was to be achieved. Absent any such reference, it is quite impossible to know whether Peacehaven is meeting those needs or whether the education authority is measuring up to that which the statement requires.
19. That has a real effect in this case. As I have said, time has passed on, and I am told that there has in fact been no occupational therapy given other than that which generally might be provided during the course of his education. An occupational therapist proposes to visit him and make recommendations. That is no doubt very sensible and I do not want in this judgment to say anything which would impede that, but the difficulty is that there is no legal means of enforcing that and no legal measure against which whatever happens to be done can be assessed.
20. In those circumstances, I do find that in Part 3 of the statement there is an inadequate specification of the means by which the significant motor skills deficit is going to be dealt with. I shall deal later with what follows.
21. The second ground upon which the statement is challenged relates to the profound speech and language difficulties from which L suffers. The statement in Part 2 was amended by SENDIST in accordance with the arguments advanced by L's parents to read: "and continues to present with a profound language disorder, scoring at the first percentile in many areas". That is, as Miss Hay rightly points out, an important finding: "profound" is a word demonstrating particular grave deficit and the consistent scoring of L at the first percentile means that he has greater difficulties than the vast majority of children against whom he has been measured.
22. In the statement the tribunal referred to the wish of the parents that L should be sent to Moor House School, where there would be a specialist whole school approach to speech and language. That could only be achieved, so L's parents argued, by securing a placement at that institution.
23. The tribunal disagreed. It pointed out that L had made significant progress in key areas at his unit at the primary school and, whilst acknowledging that there is no similar unit at Peacehaven, it continued at paragraph D:

"... it is a specialist facility specifically designed to enable the needs of children, like [L], with specific and severe speech and language difficulties to be met in an inclusive mainstream environment. It is not simply mainstream schooling with 'bolt-on' provision. We consider that [L] should be able to cope with and indeed thrive in such an environment."

At G it said:

"Direct one to one speech and language therapy is not provided for as of right by the Facility and, whilst we note the LEA's evidence that this may not be the appropriate method of providing therapy as part of the curriculum, we believe that direct therapy should continue for [L], at least at the start of his secondary school career. One hour per week direct therapist input is required, half an hour one to one with [L] and half an hour working with the School on his IEP, his speech and language therapy programmes, and any issues which arise from time to time. We are satisfied that the Facility can accommodate such one to one provision in a way which does not undermine the coherence of the Facility's approach to meeting the needs of pupils such as L."

24. This passage is attacked as disclosing an error of law. It is said that no reason is given for rejecting that which the parents said was necessary to meet his profound difficulty. The parents said that there should be a minimum of three one to one sessions per week. That contention was based on evidence contained in a report from Jenny Stephens, a speech and language therapist who has good knowledge and experience of L. She said:

"[L] attends the JLU on a full time basis, with 1:1 and small group speech and language therapy [that was at his primary school] ... [L] will need a high level of support to enable him to access the key stage 3 curriculum and to continue to develop his speech/language skills when he leaves the JLU. The linguistic, organisational and social demands of secondary school will be highly challenging for him."

25. The report from Veronica Connery, a specialist speech and language therapist, pointed out the difficulties from which L suffered. The report from Moor House School described those difficulties in a way which was adopted by SENDIST in Part 2 of its statement because the summary at page 126 referred to his "profound level of specific language impairment". That report pointed out that:

"[L] continues to require an intensive speech and language therapy programme integrated within the educational provision. He will require individual therapy sessions and small group work and a weekly social skills group. The speech and language therapist should advise across all areas of the curriculum and should attend some lessons. Individual therapy lessons should be as identified in his statement. A full time speech and language therapist is allocated to the Key Stage 3 class at Moor House School and she will advise on future therapy in consultation with [L]'s parents."

It then identified the presence of such a therapist at English, maths and personal social education lessons, as well as advising across all areas of the curriculum. Those therapists would, so the report said, be able to give a minimum of three 30 minute sessions of work per week with additional support and direct work, and it was that which led the parents to request an amendment to make such provision in Part 3 in its appeal grounds.

26. The local education authority disagreed with that approach. My attention was drawn to the views expressed in an annual review meeting summary prepared by the Junior Language Unit at the primary school in which the staff are recorded as disagreeing with L's parents' views that there should be three 30 minute one to one speech sessions. The unit thought that the current arrangements were effective and that L was making progress. In addition, an educational psychologist, on behalf of the education authority, Mr Baldwin, who has sworn a witness statement, took the view, which he expressed to the tribunal, that L did not need one to one therapy and explained his reasons. He explained that there would be a specialist facility within Peacehaven which would assist throughout the curriculum, training staff in delivering speech and language provision and pointing out the success already achieved.
27. It is plain that the tribunal did not accept what the education authority was arguing for, but on the other hand did not accept what the parents were arguing for. It took a middle course, pointing out at paragraph G that this was the start of a new period of education and therefore advised one hour per week direct therapist input and half an hour working with the school.
28. Paragraph G was criticised on the basis that the tribunal concentrated on the ability of Peacehaven to make such provision, rather than on the means by which the needs of L could be fulfilled. I disagree. The last sentence of paragraph G merely points out that the facility is in a position to provide that which the tribunal thought was required.
29. In my view, there is no basis for criticising the tribunal's specification of one hour per week direct therapy as opposed to three half hour sessions. The recommendation came close to what the parents wanted but did not go all the way. It was plain that it was a compromise between the views expressed by the education authority and the views expressed by the parents. It was blindingly obvious why that view was reached and there is nothing in the complaint that inadequate reasons were given for it. Both sides knew the area of the dispute in relation to meeting the profound difficulties from which L suffered and no further exposition was necessary.
30. The importance of Beatson J's identification of the four principles must not be allowed to cloud that which many courts have said over and over again, namely that these decisions must not be read like a statute, they must be read in the context of the areas of the dispute which will be well familiar to both sides, and in particular, as Collins J said in Staffordshire County Council v J & J [1996] ELR 418 at 424, it is wholly inappropriate to go through the decisions with a fine toothcomb, trying to identify some apparent error or inconsistency.
31. Whilst I have accepted that the tribunal in one respect erred, as a whole their decision is coherent, cogent and masterfully deals with the enormous amount of factual and opinion evidence placed before them. I reject the second complaint.
32. I cannot leave this case without some observation on the way that it has been presented. As I said at the outset, no-one can but admire the energy and concern expressed by L's parents, with the wholly correct, as well as admirable, aim to see that the best is done to meet L's difficulties. Unfortunately, as part of that process, this appeal became wholly submerged in a quite unnecessary mound of paper. The two very large bundles were presented going up to page 1198, quite apart from skeleton arguments and two bundles of authorities. Of course, documents must be exchanged and they can be held at the bar, but this court on such an appeal only needs the actual documents to which specific reference is going to be made during the course of the argument. About four or five pages was all that was necessary. The danger from L and his parents' point of view, and I pick them out only as an example, is that real points of importance get lost when, in a welter of unnecessary detail and documentation, the court becomes submerged. I suspect this is exactly what happened in relation to SENDIST: concentrating, as they did, upon the issue as to the appropriate school, and faced with some 36 reports, they unfortunately blinked at the point when they should have been considering occupational therapy.
33. It is to be hoped in future that very real thought is given as to precisely what is needed by the court in order to resolve the issues which it has to determine. All the documents could be held ready to be produced should it be necessary, and only those documents identified either by flags or side lining need be actually placed before the court and referred to in the skeleton argument.
34. For the reasons I have given, one of the grounds is successful. I shall consider the form in which I give relief, but before doing so I want to make it clear that I do not intend to do anything that will impede Peacehaven and the education authority being able to use their resources and time in seeing what is now best in relation to the occupational therapy for L.
35. I hope that there will be no need for the tribunal to meet again. It seems to me that since an annual review is taking place, all that need be done is to find out what is proposed when the occupational therapist now assesses L and then to insert that by way of an amendment in Part 3 so that the statement is up-to-date in the light of the annual review. Subject to any further submissions, I propose to give no further relief and the education authority must simply act upon what I have said in this judgment and make sure that Part 3 contains some up-to-date provision for the occupational therapy, with the concurrence of the chairman and his colleagues on the tribunal. It seems to me that that can all be done so long as the education authority gets on quickly with seeing that there is a proper up-to-date occupational therapist assessment providing her recommendations within Part 3 and amending the statement accordingly.
36. MR JUSTICE MOSES: Miss Hay, what do you want me to do?
37. MISS HAY: The difficulty with that -- it is to be sincerely hoped that this does not occur -- is if there is a continued dispute between the parties about what should --
38. MR JUSTICE MOSES: Then you might have to have another argument in front of the tribunal on that point.
39. MISS HAY: It is how we get there.
40. MR JUSTICE MOSES: The education authority will propose an amendment to Part 3 with what it says as a result of the latest assessment and then you can decide whether you agree with that or not. No doubt you will discuss with the education authority -- at the moment there is absolute silence about it, unless I have misread it.
41. MISS HAY: Yes, that was precisely our complaint.
42. MR JUSTICE MOSES: You want something put in there. If you disagree with it, you can no doubt go back on that point to the tribunal, heaven forfend, because in the meantime L will not be getting anything.
43. MISS HAY: And there is no suggestion that there should be any delay in implementation of any provision for him, even if --
44. MR JUSTICE MOSES: I hope not, and there should not be, but if money and time is going to be spent on Mr Auburn and the good gentleman sitting behind him, it may come off somebody else's education provision, I do not know which budget all this comes out of. Do these legal disputes come out of the education budget? If you have a legal dispute about education, does it come out of the education budget?
45. MISS HAY: There are various --
46. MR JUSTICE MOSES: I have no idea. This case has cost several hours of occupational therapy that could have better gone to L.
47. MR AUBURN: My Lord, the answer is, yes, it does.
48. MISS HAY: We would wholly agree.
49. MR JUSTICE MOSES: That is what you want for L. What shall I say today that would help you and help Mrs C more than I have?
50. MISS HAY: Thinking about it constructively, my Lord, if you were to make an order that directed the LEA to complete the occupational therapy assessment and then to issue an amended statement which reflected the conclusions of the occupational therapist, my concern is this, and I do not wish to suggest for one moment that any step should be taken which disrupts or interferes with L's ongoing education.
51. MR JUSTICE MOSES: You do not want it put then until you have had an opportunity of discussing it with them so that the parents' wishes are also taken into account.
52. MISS HAY: That amended statement would need to properly -- it is not a matter for this court, but I just draw to your Lordship's attention the factual position as it was outlined to your Lordship before lunch, which is that this annual review process is taking place and that the provision for L may quite properly need to be either tweaked or substantially adjusted in order to reflect --
53. MR JUSTICE MOSES: What has been happening this term?
54. MISS HAY: -- what has been happening in the meantime and the views of the relevant professionals. If the local authority were to be directed to issue an amended statement, as a result of firstly the occupational therapy assessment, that could then take into account post annual review, the annual review will be completed some time in early January, any other matters which were of concern and then a right of appeal to the Special Educational Needs Tribunal.
55. MR JUSTICE MOSES: Well, there would be.
56. MISS HAY: That right of appeal -- I am just thinking it through -- could not be constrained to the simple issue of occupational therapy.
57. MR JUSTICE MOSES: Why not?
58. MISS HAY: Because other matters would also have been taken into account, because the operation of the annual review process --
59. MR JUSTICE MOSES: I have no idea about that. It is not the intention of this court to open any other matters.
60. MISS HAY: The problem is that other matters may naturally arise.
61. MR JUSTICE MOSES: What, as a result of the annual review?
62. MISS HAY: As a result of the annual review.
63. MR JUSTICE MOSES: That is nothing to do with this court. I cannot stop that.
64. MISS HAY: What concerns the appellant, quite properly, is not to indulge in any further litigation in respect of her son's education, but to ensure that the remedy that is open to her is an effective practical one if there is a genuine dispute between the parties about the issues which arise --
65. MR JUSTICE MOSES: I have given a judgment in which I have pointed out a defect in Part 3. I do not quite know what more I need do.
66. MISS HAY: I am not inviting this court to do anything other than that, but what concerns me is that when an amended statement is being considered -- let us assume that, however undesirable, the proposed amendment in relation to occupational therapy is not acceptable and the parties are unable to agree on an acceptable amendment. The LEA issues a statement. By that stage L will have been at the school for approaching six months. There will be other issues and factors which are already appearing, it seems, and which will need to be taken into account. At that stage, were the matter to, as it undoubtedly could do, go back to tribunal for consideration of the amendment in relation to occupational therapy, should any future tribunal be constrained by what, in my submission, would be an artificial embargo on considering matters as a whole.
67. MR JUSTICE MOSES: If the law allows you to raise a whole lot of other matters, the law allows you, nothing to do with this court.
68. MISS HAY: Provided that is clear --
69. MR JUSTICE MOSES: Well, I am not saying anything, I have no idea whether it is clear or not, you just have to look at the statute. If you are allowed every year after an annual review to go back to a tribunal and query the statement generally, well, then you are allowed to.
70. MISS HAY: But, my Lord, we are not. The annual review does not in and of itself, even if there is substantial disagreement, generate a right of appeal.
71. MR JUSTICE MOSES: Well, then you are not.
72. MISS HAY: The statutory framework only allows for a right of appeal to arise where the statement is amended. If this statement is going to be amended to take account of the occupational assessment, then my concern is solely this, that this appellant is not precluded from --
73. MR JUSTICE MOSES: I am not going to give you legal advice, I have no idea whether it is or is not. The purpose of this court is quite clear. I am not going to do anything more than say that at the moment Part 3 is defective because it does not require -- whether that amounts to amendment or completion I do not know, that depends on statutory construction. It is not a point of law I am here to decide today.
74. MISS HAY: I think the point I am trying to clarify is one which I hope is reasonably clear to Mr Auburn. If there is going to be an amended statement in due course to take account of the occupational therapy evidence, a right of appeal will arise in respect of that statement should the appellant chose to pursue it, and within the context of any future appeal any other issues which are live or of concern at the time could, and in my submission properly should, be considered, and it is hoped there are not, but there may be.
75. MR JUSTICE MOSES: Well, there may be.
76. MISS HAY: Provided it is accepted that the appeal against any future --
77. MR JUSTICE MOSES: That is not for me. It may or may not be accepted. If I were Mr Auburn, I would keep quiet. All I have to do is allow the appeal in the one respect I have identified. Why do I have to say more?
78. MISS HAY: It would be helpful if your Lordship were able to perhaps acknowledge that there should be no restriction on the issues the tribunal can consider.
79. MR JUSTICE MOSES: No, I am not going to say anything one way or the other.
80. MISS HAY: My concern is this. If it is left unclear then there is the possibility that the LEA may, one would hope not, but the regulations in relation to appeals to the Special Educational Needs and Disability Tribunal do allow for a strike out.
81. MR JUSTICE MOSES: They may well try and strike you out. All that the tribunal has to do is read my judgment to see what I had in mind.
82. MISS HAY: That would be most undesirable.
83. MR JUSTICE MOSES: From your point of view.
84. MISS HAY: No, from the point of view of L's education if there are genuine issues of concern which do need to be ventilated.
85. MR JUSTICE MOSES: Might well be. Either the statute and regulations allow you to do so or not. I am not going to quash the statement.
86. MISS HAY: I am not inviting you to do so given what your Lordship has said, but I am raising that as a point of concern given that we are inevitably going to be some months further down the line come what may.
87. MR JUSTICE MOSES: Thank you very much. You have raised it. They are well aware now of what you are after.
88. What do I say today? I allow the appeal in that respect.
89. MR AUBURN: My Lord, I think the way that you have already indicated is perfectly appropriate.
90. MR JUSTICE MOSES: Yes. What happens about costs?
91. MR AUBURN: My Lord, that depends on whether there is any application.
92. MR JUSTICE MOSES: There has not been any, no.
93. MISS HAY: Well, there will be.
94. MR AUBURN: In relation to the remedy, I think what you have said already is perfectly appropriate.
95. MR JUSTICE MOSES: Right, thank you very much.
96. You are asking for costs?
97. MISS HAY: We are asking for costs, yes.
98. MR JUSTICE MOSES: At the moment I propose to give you half your costs because it seems to me that you lost half and the papers were far too overblown. That is what you are up against at the moment unless Mr Auburn seeks to do better than that. What do you say about half the costs?
99. MISS HAY: Half the costs may well be considered to be a fair reflection of the way the matter panned out in the end. There is a point which I am going to draw to your Lordship's attention because it is causing me some huge concern. My bundle, the bundle which I have used in the preparation of this matter and have used this morning before your Lordship, runs to some 317 pages. That is the index I have. That is the only bundle I have.
100. MR JUSTICE MOSES: I have two bundles, one that starts, as one would hope, with an index and starts at page 1 and goes on to page 320, and the second bundle that starts with Mr Baldwin's statement and goes on to, as I say, 1198.
101. MISS HAY: The bundle that runs up to 320 was that put in by the appellant. It is a radically pruned version of what was before the tribunal, your Lordship may well take the view it was not pruned radically enough, but nevertheless those were the documents which were felt to be --
102. MR JUSTICE MOSES: So that is what you are responsible for.
103. MISS HAY: That is what we are responsible for.
104. MR JUSTICE MOSES: And the other side are responsible for this.
105. MISS HAY: I suspect they are. Nor have I ever been provided with a copy of that bundle.
106. MR JUSTICE MOSES: The only thing you will be happy about is that, apart from reading Baldwin, I did not even look at it.
107. MISS HAY: I am delighted to hear that your Lordship's time was not wasted in that way, but I think it is right that I make clear to your Lordship that whilst the 320 pages we put it might have been too much, that was it.
108. MR JUSTICE MOSES: I will amend my judgment when I come to revise it to make sure that is clear.
109. MISS HAY: I am very grateful.
110. MR JUSTICE MOSES: I do not know how it has happened that I got a whole lot of things that you have not seen.
111. MR AUBURN: My Lord, all I can say is that those documents were pages of the tribunal bundle --
112. MR JUSTICE MOSES: Why were they put in? What was the point of it all?
113. MR AUBURN: My Lord, I was intending to take you to particular pages. In the end --
114. MR JUSTICE MOSES: Why not just have the particular pages, saying, "This is part of a vast thing, all you need is this, if you want to see any more, we have it".
115. MR AUBURN: My Lord, I accept it could have been pruned.
116. MR JUSTICE MOSES: I will amend my judgment to make sure it is just as much your fault as hers.
117. MISS HAY: Insofar as your Lordship's decision in costs is reflective of the volume of documentation you have had to read, I think it is quite right for me to make the point that we should not be the side who are penalised.
118. MR JUSTICE MOSES: Absolutely.
119. I still think you ought to get half your costs. Anything else you want to say and then I will let you have the last word.
120. MISS HAY: Nothing at this stage.
121. MR JUSTICE MOSES: Mr Auburn, can you do any better than paying half their costs?
122. MR AUBURN: My Lord, are you suggesting that the appellant pays the half in relation to the issue they were unsuccessful on?
123. MR JUSTICE MOSES: No.
124. MR AUBURN: What I would suggest, and I will try to convince you of, is the appropriate order is no order as to costs. There are two reasons for that. Firstly, as I see it, we were correct on one point and the appellant was correct on one point and, to put it crudely, that is about one all.
125. MR JUSTICE MOSES: They had to come to court to win on the one point and they have achieved something practical in relation to occupational therapy which you did not concede.
126. MR AUBURN: Yes. My Lord, if you think it is appropriate I would say that no order is an appropriate order because if you see it as appropriate to order half of the costs, then I think it may well be that it is appropriate that we recover the costs in relation to the second point that we were successful on. That might give rise to a very difficult issue as to apportionment and what time was spent on what, and I think in that circumstance, given the way that the issues turned, the appropriate order is not to engage in a very difficult task of splitting up the amount of time spent on OT and the amount of time spent on speech and language, but simply to say there is no order, given the result.
127. The second reason why I say that there should be no order is because the appellant has always sought the whole quashing of the decision, and that is clear in the appellant's notice, I will read out the order that was sought, it is relevant to the issue of costs. The orders sought are in the appellant's notice, page 12.
128. MR JUSTICE MOSES: Yes.
129. MR AUBURN: "(1) That the SENDIST order be varied to substitute the name of Moor House School in respect of the order concerning Part 4. (2) In the alternative the order be quashed and remitted for rehearing ..." That is the appellant's notice. It was also stated at page 17 in the grounds, at the bottom.
130. MR JUSTICE MOSES: Yes.
131. MR AUBURN: Seeking an order for the quashing and remitting of the entire decision, and indeed in my learned friend's skeleton, and further in my learned friend's second skeleton, which was a response to our skeleton, if you like. Even having seen our point about CPR 52.10, my learned friend's updated skeleton served yesterday still makes the same point that the whole decision should be quashed. It is at the very end of my learned friend's skeleton.
132. MR JUSTICE MOSES: Yes.
133. MR AUBURN: The point I make is that I think your Lordship has appreciated that the respondent's real concern in this case has been about the quashing of the whole decision and the whole school placement is therefore thrown up in the air. That relief has not been achieved at all, and that is another reason why I think it is appropriate to make no order as to costs.
134. MR JUSTICE MOSES: Yes, thank you very much.
135. I am still on half. Do you want to do any better?
136. MISS HAY: No.
137. MR JUSTICE MOSES: So far as assessment is concerned, I have a document that seeks an assessment, are you still pursuing that? Have you seen that?
138. MISS HAY: I have seen the document, my Lord, I do not know -- we have put in a document which is before your Lordship.
139. MR JUSTICE MOSES: I was proposing to give you half of that.
140. MISS HAY: My Lord, that document does require amendment and there is a variation on it.
141. MR JUSTICE MOSES: Up or down?
142. MISS HAY: Down.
143. MR JUSTICE MOSES: They have docked your fee, have they?
144. MISS HAY: It is not down, it seems to be slightly up.
145. MR JUSTICE MOSES: How is it up? What went wrong?
146. MISS HAY: I am not sure, and I may take some time to disentangle quite what went wrong, but on the second page of the document --
147. MR JUSTICE MOSES: Unless it is increasing your brief fee, I am not very interested.
148. MISS HAY: It is not increasing my brief fee.
149. MR JUSTICE MOSES: Then hard luck.
150. MISS HAY: But it does relate to my fees in relation to advice and documentation.
151. MR JUSTICE MOSES: You have not done badly. Come on, you were there.
152. MISS HAY: The difficulty is it puts me in a somewhat embarrassing position in trying to establish precisely where we are, but the figure your Lordship has there in the second box down on the second page of the document is £6,067, it is £7,300. How that is made up I would have to spend a little time checking.
153. MR JUSTICE MOSES: I reckon that £6,000-odd is enough. Do you want to say anything about quantum?
154. MR AUBURN: Yes, my Lord, if I may, very briefly. It is never attractive to be spending time discussing costs.
155. MR JUSTICE MOSES: No, but sometimes it is very important, the trouble is it always happens at the end of a case. What is your objection?
156. MR AUBURN: My Lord, I just cannot see where the £6,067 comes from, and I have asked and I have not had a satisfactory response. This is counsel's fees, in addition to the brief fee.
157. MR JUSTICE MOSES: I know.
158. MR AUBURN: I am not complaining about the brief fee at all.
159. MR JUSTICE MOSES: No, the brief fee seems reasonable.
160. MR AUBURN: But given the brief fee, we have an extra £6,000 on top of that. I have asked what makes that up and I have not had a satisfactory answer. I am concerned about it. I am concerned that other matters might have been put in, say the fees to the tribunal, for instance.
161. MR JUSTICE MOSES: That could not be so.
162. MR AUBURN: Yesterday, on an annual review.
163. MR JUSTICE MOSES: That would be dishonest. You must not say that.
164. MR AUBURN: My Lord, all I am saying is it is a large sum for the local authority and I do not know how it is made up, I have asked.
165. MR JUSTICE MOSES: Thank you very much.
166. MISS HAY: I am looking at the fee note and it is absolutely right that, in error, a figure has been put in which should not be included, which is 9th November, and that takes £750 off plus VAT, so that can come off the figure because that should not properly be there. Following on from certain information that was given last week it is right that there was a draft witness statement prepared and served and an advice. It was served upon --
167. MR JUSTICE MOSES: I tell you what I am going to do. I am going to knock the whole thing, including VAT, down to £6,000, which is just under half of £12,339.47.
168. MR AUBURN: Sorry, my Lord, can I just be clear. Are you saying that you are knocking the figure down to £6,000 and then you are ordering half of that?
169. MR JUSTICE MOSES: No, no, £6,000, which is just under half of £12,000-odd.
170. MR AUBURN: My Lord, if I can just say this. We are very unsatisfied with the £6,000. We do not see the basis of it.
171. MR JUSTICE MOSES: Are you seeking a detailed assessment?
172. MR AUBURN: Well, my Lord, we have asked for the basis of it and we have not been shown it.
173. MR JUSTICE MOSES: The alternative is a detailed assessment, which is going to cost everybody a fortune.
174. MR AUBURN: Either that or that figure -- effectively, as I see it, you are not making any real change to that £6,000, you are saying we accept broadly that sum and then you have already said that the appellant is to get half.
175. MR JUSTICE MOSES: I have no basis for saying that that is not what she incurred in advising, have I?
176. MR AUBURN: My Lord, it is a very significant sum if it is in addition to the brief fee. If it is in addition to the brief fee, it is very large.
177. MR JUSTICE MOSES: All right. I will ask Miss Hay about it.
178. MISS HAY: My Lord, if the total is £12,000 and your Lordship is offering half, then it is £6,000.
179. MR JUSTICE MOSES: No, no, how did you get to £6,067? Do you want me to look at that?
180. MISS HAY: Mr Auburn has in fact been provided with a copy of a fee note of mine at an earlier stage.
181. MR JUSTICE MOSES: Can I see it?
182. MISS HAY: My Lord, yes.
183. MR JUSTICE MOSES: (Pause) I cannot get up to £6,060 even adding up these figures.
184. MISS HAY: That was my initial concern and that is why I asked for the matter to be re-calculated and added up, and those instructing, me who are behind me, have been out doing that and these are the figures they have come back with.
185. MR JUSTICE MOSES: It is nothing like £6,060. I am very unhappy about this.
186. MISS HAY: I asked for it to be re-calculated and that is the figure that I have been given. I wonder if it might be sensible, if we are going to try and deal with this today, and I accept it would be preferable to deal with it today rather than by way of detailed assessment, for us to have a short adjournment in which we try and clarify this.
187. MR JUSTICE MOSES: Well, somebody has just done the wrong figures but how? It is very naughty to put in a wrong -- we can add it up now. You will have to work out the VAT, but what I am prepared to give you for advice, conference and documents is £3,000, so I am inserting in that £3,000, you will get your brief fee of £2,000 and the other amounts, plus VAT, and you will get the whole thing, half of that, and I am extremely displeased that a wrong figure -- I do not think it is your fault or your clerk's fault, but that is what you are down to, £5,000 in all for your fees plus VAT. I think what you ought to do is find out how that has happened.
188. So far as costs are concerned, Mr Auburn understandably argues that although Mrs C should have part of her costs in relation to the issue she has won, the authority resisted successfully the main relief sought and won on one point, but I think, doing the best I can, and looking at it overall, I have to take into account that Mrs C had to come to court and achieved something of real materiality on L's behalf. I shall reflect that by awarding her half of the costs.
189. As to quantum, she sought sensibly an assessment, and I am dismayed to discover through -- I am quite satisfied through no fault of Miss Hay or her clerk -- that a vastly exaggerated figure was put in for pre-brief fee advice. I propose to meet that by reducing it from a figure of over £6,000 to £3,000. I am not going to sit here and work out the VAT, but Miss Hay will get £3,000 pre-brief fee and £2,000 on the brief fee plus VAT. The total should be added and then halved and that is the amount of costs the Council will have to pay. I also ask that Miss Hay look into how that mistake came to be made to make sure that whoever did fill it out realises the gravity of doing so because it could so easily have been missed. Thank you very much.