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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Lawrence, R (on the application of) v London Borough of Southwark & Anor [2005] EWHC 1210 (Admin) (25 May 2005)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2005/1210.html
Cite as: [2005] EWHC 1210 (Admin)
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QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
Strand London WC2 |
||
B e f o r e :
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| THE QUEEN ON THE APPLICATION OF LAWRENCE | (CLAIMANT) | |
| -v- | ||
| (1) LONDON BOROUGH OF SOUTHWARK | ||
| (2) SENDIST | (DEFENDANTS) |
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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)
MS K OLLEY (instructed by Felix Moss) appeared on behalf of the CLAIMANT
MR D EDWARDS (instructed by London Borough of Southwark) appeared on behalf of the DEFENDANT
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Crown Copyright ©
- MR JUSTICE STANLEY BURNTON: This is a statutory appeal against the decision of the Special Educational Needs and Disability Tribunal, commonly referred to as SENDIST, dated 11th January 2005 in relation to Niyazi Lawrence, a young man who was born on 26th April 1991. As recited in the decision of the Tribunal, Niyazi has learning difficulties arising from language disorder, motor difficulties, attention deficit hyperactivity disorder, and specific learning difficulties.
- The Tribunal decision recites the history of his education and the most important of the disputes which it had to resolve as between Niyazi's mother and the local education authority, the London Borough of Southwark. As so often in these cases, the principal contention related to the school to which the child who was the subject of the Tribunal's decision (in this case Niyazi) should go pursuant to the decision to be made by the Tribunal. As so often, there was contention between Niyazi's mother and the local education authority as to which school would be appropriate.
- In this case, Niyazi's, and no doubt his mother's, experience of his education up to the date of the hearing before the Tribunal had been in a number of respects stressful. He had been transferred in September 2002 from Ilderton Primary School to London Nautical School, a maintained secondary school. Niyazi complained that he suffered from bullying and racial abuse there which had a physical effect on him, as a result of which he developed alopecia and there were other symptoms. He indeed felt unable to continue attending the school. He ceased to be educated there and went to the Bloomfield Centre. That is described in the decision.
- I should say that as in almost all of these cases, the dispute between the parents and the school is a genuine dispute. The parent (in this case Niyazi's mother) genuinely and strongly believes that the placement which she advocated before the Tribunal was one which most suited her son's needs, and that the placement which Southwark as local education authority proposed would not. Niyazi's mother complains of a history of a failure on the part of the local education authority to meet Niyazi's needs.
- Whether those complaints are well-founded or not, however, is not before me and, save to a very limited extent, is not a matter that I can consider. It has to be emphasised that the appeal to this court is an appeal on the question of law only. Questions of fact, assessments of suitability of schools, educational requirements of children, are, in general, matters for the Tribunal to decide and to specify. This court can only interfere where there has been an error of law (and in the areas to which I have just referred there are relatively few legal constraints) or if the Tribunal comes to a finding for which there is no evidence before it or comes to a conclusion which no rational Tribunal, properly applying the law, could reach.
- There is only one remaining ground of appeal in this case. It relates to the need of Niyazi for occupational therapy. He has other needs; in particular, specialist teaching from a qualified teacher of children suffering from a degree of dyslexia. But that is not the subject of complaint. The appeal before me addresses Niyazi's need for occupational therapy. The Tribunal specified the occupational therapy which should be provided to Niyazi to meet his needs and the educational objectives it specified in the statement of special educational needs, amended pursuant to its decision.
- The statement specifies that he should receive six to eight direct occupational therapy sessions over a period of one term to help him improve his sensory processing and pencil production and to teach him ways to deal with his sensory difficulties. It went on to say that those would be provided by a paediatric occupational therapist with experience of working with individuals of Niyazi's age with visual perception and sensory difficulties. It also said that it was essential that Niyazi have an occupational therapist who has experience in working with individuals with sensory difficulties and recognises the value of this particular type of therapy input. The therapist would ensure that the learning support assistant and teachers at the school named in the statement would be fully versed with Niyazi's difficulties. The sessions would be for 45 minutes and include liaison with Niyazi's teachers. The therapist would work on areas of sensory integration therapy, balance, visual spatial skills and pencil skills/handwriting.
- As that reference to the statement, as amended by the Tribunal, shows, the statement was a detailed statement of Niyazi's needs and provision. That particular paragraph was an amended paragraph resulting from a decision of the Tribunal and specifies Niyazi's needs with a high degree of specificity.
- As I have already stated, the principal dispute between Niyazi's mother and the local education authority was as to the identity of the school to be named in the statement. The local education authority proposed that he should join Bacon's College, a city technical college close to home, which had been his mother's secondary preference in 2001. His mother, Ms Lawrence, wanted the statement to specify the Moat School as the school to be named in his statement. The local education authority preferred Bacon's College for a number of reasons, one being the relative expense of the Moat School. The Moat School had the advantage of existing in-house occupational therapists who could provide for Niyazi's needs at the school. There was, at the date of the hearing before the Tribunal, no such provision at Bacon's College. But the local education authority asserted that the necessary provision would be available.
- The Tribunal heard evidence from Miss Lucinda Jacobs who was the special educational needs coordinator at Bacon's College, who would have responsibility for his education plan, and summarised her evidence in paragraphs 9 and 10 of the decision. She was confident that with additional support from Southwark, Niyazi's needs could be met at the school.
- The Tribunal also received evidence from Mrs Gloria Grey, the special educational needs manager with Southwark. She said that arrangements had been made for a SALT and specialist dyslexia teacher already employed by the authority to provide input as specified in Part 3 of Niyazi's statement at Bacon's College. She said that she had not yet made arrangements for an occupational therapist, but that was in hand and she was currently in discussion with National Health Service managers before considering an independent therapist. I understand that to mean that her first step was to see whether a National Health Service therapist would be made available, otherwise she would consider employing an independent therapist for Niyazi, as required by his statement, at Bacon's College.
- The short point made on behalf of the appellant, concisely but cogently put, was that it was not open to the Tribunal to specify occupational therapy at Bacon's College and therefore to name Bacon's College as the school to be attended by Niyazi, in circumstances where there was, at the date of the hearing, no such provision available at Bacon's College but only a hope and a promise that it could be made available. Moreover, as referred to in paragraph 13 of the decision, there had been previous non-delivery of specified therapeutic provision for Niyazi while he was at London Nautical. Indeed, Mrs Grey, the special educational needs manager at Southwark, acknowledged that there had been previous problems.
- In my judgment, the fact that as of the date of the Tribunal hearing the facilities to make a required provision for the child who is the subject of the decision at the school which the Tribunal proposes to name in its statement, does not of itself preclude the Tribunal from including that school and that provision in his statement. If the Tribunal does so in circumstances where there is no acceptable evidence that the provision will be available, the Tribunal will have acted irrationally. But it is for the Tribunal to assess the assurances put before it by, in this case, the local education authority, and the matters put before it by both parties, with a view to determining whether it can prudently and safely rely on the assurance and promise made, in this case, by the local education authority.
- In other words, the fact that the provision is specified on the basis of a promise or assurance as to the future rather than the existing fact is not, as a matter of law, something which prohibits the Tribunal from specifying that provision. Generally speaking, decisions by SENDIST look forward. That is emphasised by the fact that there is time given by the regulations to a local education authority to amend a statement of special educational needs, pursuant to a decision of a Tribunal. Often a Tribunal will make its decision during the course of a school year with a view to the pupil in question joining the school to be named at some future date, often at the beginning of the following year. Often, as indeed in this case, the Tribunal decides that complete and full-time integration into the new school cannot be accomplished immediately, and that there has to be an introductory period during which the pupil will attend, so to speak, part-time at the named school, building up his experience and confidence until he is able to attend the school throughout the school day. Necessarily, during that introductory period, not all of the provision which may be specified in the Tribunal's statement will immediately be available at the school in question.
- As I said in the course of argument, in my judgment this is really a rationality challenge. Could the Tribunal, on the material before it, rationally have come to the conclusion that the occupational therapy it specified would be made available at Bacon's College. The decision of the Tribunal is remarkable for the evident care with which it approached the issues before it and made its decision. It summarised the material that it had received relevant to this issue and I am unable to conclude that it acted irrationally or unreasonably in coming to the conclusion that it did.
- I understand from Miss Olley that since the Tribunal's decision, Niyazi has attended at Bacon's College and that experience has proved stressful and that there has been a recurrence of his alopecia. That, as she accepts, is not a matter that the court can take into account in proceedings of the present kind. Although, obviously, the court hopes that the stress and its causes may be removed or at least mitigated.
- If the local education authority fails to comply with the requirements of the statement, the remedy of Niyazi and his mother is to take judicial review proceedings against the local education authority. That, I hope, will not be necessary. However, for the reasons I have given it has not been shown that the decision of the Tribunal was subject to legal error and in those circumstances this appeal must be dismissed.
- MR EDWARDS: Thank you, my Lord. I understand the claimant is publicly funded. Could I ask for the usual order?
- MR JUSTICE STANLEY BURNTON: Yes. You require a certificate, Miss Olley, I imagine.
- MISS OLLEY: My Lord, yes.
- MR JUSTICE STANLEY BURNTON: There is no certificate on the file.
- MISS OLLEY: My Lord, it should be in the bundle. If not we can remedy that.
- MR JUSTICE STANLEY BURNTON: If it is not in the bundle then it could be filed within seven days.
- MISS OLLEY: My Lord --
- MR JUSTICE STANLEY BURNTON: That is fine. Please file it within seven days. What do you say about the costs order that is required?
- MISS OLLEY: My Lord, I have not seen a schedule so I cannot comment on the costs. I obviously cannot oppose the principle.
- MR JUSTICE STANLEY BURNTON: Effectively, the order is not enforced unless Miss Lawrence comes into some money.
- MISS OLLEY: Yes.
- MR JUSTICE STANLEY BURNTON: Do you have any objections to the usual order?
- MISS OLLEY: No, my Lord.
- MR JUSTICE STANLEY BURNTON: You will explain the effect of it to Miss Lawrence.
- MISS OLLEY: I will.
- MR JUSTICE STANLEY BURNTON: Thank you very much for dealing with the matter so efficiently.