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
		28th July 2005

Thursday, 28th July 2005

1. MR JUSTICE HUGHES: This is an appeal on a point of law brought pursuant to section 11 of the Tribunals and Inquiries Act 1992 against a decision of the Special Educational Needs and Disability Tribunal which was given on 30th March 2005, following a hearing on 18th March.
2. The appellants are the parents of a little girl to whom I shall refer to by her initial, as Z. She was born on 13th August 2000, so that she is now not quite five. She has the misfortune to have been diagnosed with Autistic Spectrum Disorder ("ASD"), and also with delayed speech and language development. The Statement of Special Educational Needs was made by the Local Authority in September 2004, although following discussion with the parents. The parents appealed to the Tribunal against the contents of Parts 2 and 3.
3. The principal issue before the Tribunal was whether the Statement should provide for, and thus the Local Education Authority fund, an Applied Behavioural Analysis ("ABA") programme. The parents had, earlier in 2004, requested this. The Local Authority had declined to include it in its Statement, maintaining the position that it was not appropriate to Z's needs and not an efficient use of limited resources.
4. Having been told in advance of the formal Statement that that was the Local Authority's anticipated position, the parents managed to arrange themselves for Z to undergo the Lovaas ABA programme and to pay for it themselves, no doubt with some hardship.
5. When the Statement came in due course, they appealed to the Tribunal, complaining particularly of the absence of the ABA provision. In the meantime, Z had begun the privately- arranged ABA programme in August of 2004. It was provided by two tutors over a period of 15 hours each week and at home.
6. Not long after that, at the beginning of the school year in September 2004, Z, who was then just four, began to attend a mainstream maintained primary school in the Reception Class. She was not, of course, at that stage, of compulsory school age, but the School was in a position to take her, and could have taken her full-time. In fact, because of the ABA programme that she was having at home, she attended two full days at school and three mornings, thus missing the other three afternoons.
7. The Supervisor of the ABA programme, a Ms Strohm, provided a report in January 2005. By that stage, Z had had the benefit of the programme for about five months. Ms Strohm commended the programme generally, to which she was, no doubt, understandably and properly committed, but she also said that Z had shown substantial progress. Her disruptive behaviour had been reduced and she was more available for learning and was making better use of language. Ms Strohm had also visited the Primary School occasionally. By the time of the Tribunal hearing in March, she had visited on four occasions over the course of the better part of two school terms. She had consulted with the school teachers, with the approval of the Local Authority, and that had, no doubt, had the advantage of improving consistency of approach to Z by those who separately were concerned for her.
8. The Tribunal also had the evidence of Z's mother, who was strongly of the view that the ABA programme had made a significant difference. Her view of it was that it was "a godsend".
9. The school teachers, particularly the Head Mistress, gave evidence that the School could meet Z's needs and that the additional ABA work was not considered necessary. The Headmistress's view was that whilst there was no suggestion that the ABA was in any way damaging, it had not been a critical contributor to the progress which Z had made. The Head Mistress also offered the view that it was a disadvantage to Z to be coming to school part-time only, thus not on the same basis as her peers and it would be in her better interests, both educationally and socially, to be able to attend full-time, like all the others in her class. There were, however, special provisions being made. The school was making use of the Picture Exchange Communication System and the Treatment and Education of Autistic and Related Communication Handicapped Children System. The Tribunal also heard the evidence of two educational psychologists, one called on either side of the debate. They agreed that a child with ASD, and this child, Z, needed intensive early intervention, but they disagreed as to whether the ABA programme was more effective than alternative methods.
10. The parents did not suggest that ABA provision should continue indefinitely or, indeed, for very long. Z's mother said to the Tribunal that it should not continue longer than was necessary. A witness, Ms Peacock, who was a programme consultant with the Autism Partnership and who had been advising the parents, gave evidence that in her view the ABA programme was likely to be appropriate for something like two years. Everybody agreed that either with or without the ABA programme in the meantime or after it in the future, the School was otherwise the right place for Z. The parents' proposal necessarily involved that the existing pattern of part-time attendance at school should continue for as long as the ABA programme was pursued.
11. The Tribunal set out its conclusions over about seven-and-a-half pages. Its duty is, of course, to provide summary reasons. It reached the conclusion, first, that in some respects the Statement did not sufficiently fully set out Z's learning difficulties and special educational needs. It concluded that, although it was not possible to say whether any other regime might have had the same success, Z had, in fact, achieved a significant improvement during the period of the ABA programme. The reasons it put in this way:

"In this particular case the early intervention of an intensive ABA programme did appear to have achieved a significant improvement in Z's behaviour, concentration and speech and assisted her to access the curriculum at school. We accepted that her progress at school was attributable, in part, to the ABA programme."

12. Next, the Tribunal drew attention to some limitations in the educational provision at School thus far, largely attributable to the fact that Z was the first ASD pupil the School had had to cope with. Z had learning support assistants, but those assistants were not specialists. The ABA Programme Supervisor, Ms Strohm's, visits had, the Tribunal considered, contributed to the understanding of the School of Z's needs, and particularly to her principal learning support assistant, who, on the evidence, was learning on the job. The Tribunal considered that more detailed targets were needed and that the Statement needed, in particular, to specify full-time learning assistant support, albeit that that had, in fact, very largely, if not entirely, been provided in the past. The existing Statement did not sufficiently require it.
13. The Tribunal then reached these conclusions. First, it rejected a Local Authority submission that the ABA programme was to the extent that it operated all the year round, and thus through the school holidays, not during the school holidays an educational provision. The Tribunal reached the conclusion that at Z's very young age, that is to say before compulsory school age, her special educational needs required educational provision throughout the year.
14. The critical conclusions to which the Tribunal came are set out in sub-paragraphs (i) and (j) of its conclusions:

"(i) We recognised that it would be a heavy financial burden for the LEA to fund the ABA programme." -- I interpose to say that the cost was £16,300 per annum -- "On the other hand, in our view, the ABA programme was currently part of the appropriate provision necessary to meet her special educational needs. We had concluded, on the evidence, that Z had made progress as a result of ABA. We feared that, if the ABA programme ceased now, Z's progress might be halted, and she might regress. It might jeopardise her ability to cope when she reached compulsory school age and had to attend full-time school in September 2005. Over the long summer holiday, it was particularly important that her therapy was reinforced, and did not lapse. We concluded, therefore, that the cost of continuing the ABA programme at least until September 2005 was not unreasonable public expenditure, nor was it an inefficient use of resources, and decided that the statement should make provision for this in Part 3. It followed that there had to be a consequential amendment to Part 4 to refer to the out-of-school provision.

(j) However, after September 2005, the benefits of the ABA programme had to be weighed against the disadvantage of Z missing a significant part of the normal school day, in order to continue with the ABA programme. This would make it difficult for her to keep up with her peer group, both educationally and socially. Part-time attendance was already a concern to [the Head Mistress]. We relied on our specialist knowledge of the difficulties caused by not attending school full-time, once a child reached compulsory school age. We did not agree with [the mother's] view that, even after September 2005, Z should attend school part-time in order to receive ABA. We concluded that it was essential for Z to attend full-time school from the autumn term 2005. The ABA programme, funded by the LEA, should focus on preparing Z for full-time school, and cease on 1 September 2005. In the light of these considerations, we concluded we would be committing the LEA to unreasonable public expenditure or an inefficient use of resources if we ordered the ABA programme to continue beyond 1 September 2005."

15. In admirably-made succinct submissions, Mr Bowen raises two related challenges to that conclusion and one further separate submission. The principal complaint is this. He contends that the Tribunal's findings necessarily involve the finding that the School is presently unsuitable to provide for Z's special educational needs without the support of the ABA programme. From that proposition, he proceeds to the submission that there was no basis upon which the Tribunal could find that in September 2005, approximately six months ahead of the Tribunal's decision, the School would become suitable. Such a conclusion, he contends, is irrational and, as a supplemental submission, he contends that nowhere has the Tribunal sufficiently given any reasons for such a conclusion.
16. His second, or, as the case may be, third, submission is one of procedural unfairness. He points to the statement in paragraph (j) of the Tribunal's reasons to the effect that the Tribunal had relied on special knowledge of the difficulties caused by not attending school full-time once a child reached compulsory school age. He contends that if an expert tribunal is going to utilise its expertise, which, of course, he accepts that it can, it has to give the parties an opportunity to comment on the expertise. This, he contends, the Tribunal had failed to do.
17. I remind myself that the Special Educational Needs and Disability Tribunal is deliberately constituted as an expert Tribunal. It has to decide what are, in most cases, quite delicately-balanced questions of degree, and the question for me is whether this Tribunal has erred in law. It has done, of course, if it has arrived, for the reasons for which Mr Bowen contends, at an irrational conclusion.
18. It is plain to me that, although the Tribunal drew attention to present shortcomings, or limitations, in this particular School, not so much attributable to unreasonable failings but principally to lack of experience, it clearly did not find that the school was, in any general sense, unsuitable to provide for Z's special educational needs. What it found, and what it seems to me it was plainly entitled to find, was that Z's special educational needs needed the supplement of the ABA programme for a further short period. The assessment of that period is, as it seems to me, plainly one for the Tribunal.
19. Mr Bowen accepts that the School will, in his terms, become suitable at some stage in the future through the operation of two factors; first, through the development of the child, and secondly, through improved experience of the School and improved support within the School's systems. It follows that one of the questions for the Tribunal was when that was going to be the case. By September 2005, although that was approximately six months and no more from the Tribunal's decision, the period of ABA support for Z would have been not far off doubled from what she had thus far had and it would have been almost exactly doubled from the period that she had had up until Ms Strohm's report in January.
20. Secondly, the Tribunal ordered as a new provision in the Statement that the Local Authority should fund in the period up until September 2005 three hours' supervision at the School under the ABA programme. That is compared and contrasted with the existing arrangements. Previously, as I have recited, the Programme Supervisor had made a total of four visits to the School over the better part of two terms. It is plain that what the Tribunal had in mind was a transition from school plus ABA, to school alone. That is reinforced by the observation of the Tribunal in paragraph (j) that the ABA programme should henceforth focus on preparing Z for full-time school.
21. Next, in directing that the Statement should provide for ABA support over the six months or so between March and September of 2005, the Tribunal made it clear that it had in mind the particular benefits of continued support over the long summer holidays at the age of four, not yet quite five. The Tribunal was entitled to proceed upon the basis that, particularly with the three hours' attendance of the ABA Programme Supervisor at the School, the ability of the School to learn any additional specialist strategies appropriate to the dealing with a child with this particular condition would significantly improve.
22. It follows, as it seems to me, that the Tribunal was clearly entitled to reach the conclusion that the situation would be different in September 2005 from the situation as it obtained before it in March. In addition to that, the Tribunal was entitled to balance the advantages of supplemental support by way of the ABA programme, against the advantages to Z of attendance full-time at school, as nearly as possible in the same way as her contemporaries, with the educational and social advantages that that would necessarily carry.
23. The question for me is whether the conclusion which the Tribunal reached, that by September the advantages of full-time attendance would outweigh the advantages of the ABA support, was an irrational one. I am satisfied that it was not. It follows that I am also satisfied that the Tribunal has sufficiently and, indeed, if I may say so, appropriately expressed its reasons for its conclusions.
24. As to the procedural unfairness or natural justice challenge, Mr Sheldon has helpfully referred me to the decision of the Court of Appeal in Richardson v Solihull Metropolitan Borough Council, and other conjoined appeals, [1998] ELR 319.
25. In the case of White, which was one of those cases there reported, the issue before the Tribunal had been whether the particular child's special needs could be provided for only by a specialist and very individual school in the United States of America, as the parents contended, or by a particular school in the United Kingdom, for which the Local Authority contended. In the event, the Tribunal came to the conclusion that neither of those schools was the appropriate school, but held that there were in the United Kingdom a number of schools which could perfectly well provide for the child. In reaching that conclusion, the Tribunal had relied upon the expert knowledge of its members. The complaint made in that case to the Court of Appeal was that a new point had been, in effect, taken at the time of the decision and the parties had not had the opportunity properly to deal with it.
26. In dealing with that point, Beldam LJ said this at page 331H:

"I am conscious that it is sometimes difficult to distinguish between an expert tribunal using the expertise for which its members have been chosen in deciding issues before it and using that expertise in a way which raises other issues the parties may not have had an opportunity to consider."

27. He saw force in the suggestion that the case before him was a case of the latter and, as I have indicated, it was certainly arguable in that case that a new point had been taken for the first time in the decision.
28. In the course of the same case, Peter Gibson LJ said this at page 338D:

"Although the SENT is a specialist tribunal with members appointed for their expertise, it is important that [it] obeys the rules of natural justice and that the members should not give evidence to themselves which the parties have had no opportunity to challenge."

29. With those observations, I respectfully agree. I am, however, quite satisfied that this is the case of the first of the two situations contemplated by Beldam LJ and not of the second. This was not a case of the members of the Tribunal giving evidence to themselves that nobody else knew was being given. The question of the balance of advantage between full-time and part-time attendance for Z had been raised in the course of the Tribunal's proceedings. That is apparent from paragraph 16 of its reasons, which records that the mother had been asked to address the question and had done so, taking the view, as she did, that the best thing for Z would be to continue to attend part-time, and secondly, from paragraph 18, which records the contrary view of the Headmistress.
30. The question of the balance of advantage to the child between full-time and part-time education was clearly fully in play and under debate in the course of this Tribunal. The application of the expertise of the members to that question was to be expected. There was no question of the members giving evidence to themselves of a kind which the parties had had no opportunity to deal with. If, on the facts of this case, that argument were to succeed, it seems to me that the practical informed judgments of what is, by design, an essentially practical statutory tribunal composed, in part, of those with particular expertise would be impossibly frustrated by a legalism to which I decline to give any endorsement.
31. In those circumstances, despite, as I say, Mr Bowen's very helpful and persuasive submissions, this is an appeal which must be dismissed.
32. Mr Sheldon?
33. MR SHELDON: My Lord, I understand that the appellants are legally-aided. We do seek the usual costs order against them, not to be enforced without the permission of the court.
34. MR BOWEN: I cannot resist that, save the only rule in this jurisdiction is that there are no rules as to costs. It is a pointless order because, on my understanding, there is no prospect of them ever enforcing it.
35. MR JUSTICE HUGHES: They nearly always are pointless, but one of these days somebody will win the lottery tomorrow, Mr Bowen!
36. MR BOWEN: Just before you rise, my Lord, may I just make three extremely quick points. One, I may have misheard myself; if I did I should not have said what your Lordship has quoted me as saying. I think I was quoted in your judgment as saying that the School will become suitable in time. If I did say that, I would like formally to withdraw it because I should have said "may". That would be a gift to my opponent.
37. MR JUSTICE HUGHES: That is why I wrote it down.
38. MR BOWEN: It shows I am even more fallible.
39. MR JUSTICE HUGHES: There we are.
40. MR BOWEN: My second point is that you very kindly attributed the helpful reference to authority to me; it was, in fact, Mr Sheldon. Mr Sheldon brought the White case into play.
41. MR JUSTICE HUGHES: Thank you for that.
42. MR BOWEN: There is a fourth. Can I have a detailed assessment as to my costs, please?
43. MR JUSTICE HUGHES: Yes. The appellants must pay the costs of the respondent's, not to be enforced without further order of this court, and there is to be an order for detailed assessment of the appellant's costs pursuant to the Legal Aid Act.
44. MR BOWEN: There is another point which is that I should have asked for an order for anonymity. I do not actually have instructions to do.
45. MR JUSTICE HUGHES: You are quite right. Perhaps it should have been dealt with. You will have observed that I have referred to the child by letter throughout. The case, if it should attract any publicity, must be reported as T v London Borough of Wandsworth, and the child's name must be referred to as Z. Thank you both very much indeed.