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
		23 September 2005

1. MR JUSTICE JACKSON: This judgment is in nine parts, namely Part 1 Introduction, Part 2 The Facts, Part 3 The Present Proceedings, Part 4 The Law, Part 5 Did the Tribunal err in Law in nominating Radlett Lodge School rather than Fosse Way School?, Part 6 Did the Tribunal err in failing to adjourn?, Part 7 Did the Tribunal err in that it failed to specify the amount of educational provision which A required?, Part 8 Did the Tribunal take into account an irrelevant consideration?, Part 9 Conclusion.
Part 1. Introduction
2. This is an appeal against a decision of the Special Educational Needs and Disability Tribunal ("the tribunal"). The appellant is the Wiltshire County Council (the "local education authority"). The child around whom these proceedings revolve is a boy now aged 8 (to whom I shall refer as "A"). The first respondent to these proceedings is A's mother. The second respondent is the tribunal. Neither respondent has taken any part in these proceedings or has attended the present hearing. In the course of this judgment I shall refer to the Education Act 1996 as "the 1996 Act". The only other statute which is relevant is the Tribunals and Inquiries Act 1992 (the "1992 Act").
3. Section 11 of the 1992 Act provides:

"Subject to subsection (2), if any party to proceedings before any tribunal specified in ..... schedule 1 is dissatisfied in point of law with a decision of the tribunal he may, according as rules of court may provide, either appeal from the tribunal to the High Court or require the tribunal to state and sign a case for the opinion of the High Court."

The tribunal is one of those specified in the 1992 Act. The present appeal is brought on points of law only pursuant to Section 11 of the 1992 Act. These are sufficient comments by way of introduction. I must now turn to the facts of the present case.

Part 2. The Facts
4. A was born on 3 June 1997. He suffers from autism and significant learning difficulties. He lives with his parents and two siblings in Wiltshire. In December 2000 A's parents arranged for him to receive 36 hours per week of education at home by an ABA tutor under the Lovaas Scheme. A's parents funded this through raising a loan. The education at home was beneficial and A progressed in several areas. In October 2001 the local education authority issued a statement of special educational needs, pursuant to which the local education authority took over the funding of home education under the Lovaas Scheme. The number of hours was reduced from 36 to 30. In September 2001 A entered St George's Roman Catholic Primary School. The local education authority continued to fund 30 hours per week of additional education at home by an ABA tutor under the Lovaas Scheme. However the local education authority terminated this provision in July 2003. A remained at St George's RC Primary School for a further year after this. However it appears that in the absence of supplementary home education by an ABA tutor, A's condition regressed and he lost skills previously gained.
5. On 21 July 2004, following A's annual review, the local education authority issued a fresh statement of special educational needs. I shall refer to this as "the statement". The statement dealt in some detail with A's condition and needs in Part 2. The proposed special educational provision was set out in Part 3 of the statement. Part 3 includes the following passages:

"The speech and language therapist will work collaboratively with the school staff and parents through jointly agreed targets, strategies and approaches which will then be pervasive across the child's full learning experience in school and at home .....

.....

regular and close home/school liaison so that any difficulties can be rapidly and professionally dealt with and school work and specific teaching approaches can be supported at home. This should also ensure consistency of approach and reinforcement at home and at school."

6. In Part 4 of the statement it was stated that from 6 September 2004 A would attend Fosse Way School on a day basis. This is a special school with provision for pupils with autism. It is a school outside the County of Wiltshire because, as I understand it, there is no appropriate school within the county. In September 2004 A duly started to attend Fosse Way School. The journey each way between home and school took at least an hour. A's parents took the view that a number of amendments were required to the statement. They also believed that A should be sent to Radlett Lodge School (a specialist residential school) rather than Fosse Way School. Accordingly the parents appealed to the tribunal.
7. The hearing of the appeal took place on 14 April 2005. Mrs Kinloch, an education officer employed by Wiltshire County Council, represented the local education authority. Mrs Holland, a volunteer representative, represented A's parents. Agreement was reached between the parties on a number of amendments that should be made to Part 2 and Part 3 of the statement. The central issue in dispute at the hearing was which of the two schools A should attend. At the hearing a large volume of reports and documentary evidence was submitted. Mrs Ravenhill, an educational psychologist, and Mrs Pontac, a speech and language therapist, gave evidence for the parents. The parents themselves also gave evidence. Mrs Webster, a local educational authority educational psychologist, gave evidence for the local education authority.
8. Following the hearing the tribunal concluded that A should attend a residential special school. The tribunal also concluded that A should leave Fosse Way School at the end of the summer term and start attending Radlett Lodge as a weekly boarder in September 2005. The material part of the tribunal's decision reads as follows:

"We carefully considered the evidence given at the hearing and the papers which the parties submitted to the tribunal in advance. Our conclusions are:

A The terms of the statement should be amended in Part 2 by the terms of the amended statement which is annexed to this decision.

B We concluded that it would be helpful for the statement to have a summary of A's special educational needs in Part 2. Although we understood the argument put forward by Mrs Kinloch that some summaries are of themselves confusing and too detailed, the summary proposed by [A's mother] appears to be helpful.

C As to Part 3, we were at some disadvantage in that we had not been supplied with up to date reports following A's transfer into a specialist environment. The only such report we had was that from Mrs Pontac. It would be helpful if we had received reports from Fosse Way School and from the NHS Speech and Language therapist that sees A. However, the tribunal has to reach a decision on the evidence supplied to it. Regarding speech and language therapy, we were persuaded by the evidence given by Mrs Pontac at the hearing and in her report that the speech and language therapists should work collaboratively with the class teachers and staff at the school. We therefore concluded that a programme from the speech and language therapist needs to be more than a 'consultative model' and that these words should therefore be deleted from the speech and language provision in Part 3.

D Although Part 3 of the statement as presently drawn does not stipulate the necessity for a 24-hour curriculum, it does acknowledge, in particular regarding communication, that targets, strategies and approaches should be pervasive across the child's full learning experience in school and at home. Part 3 also acknowledges the necessity of a consistency of approach and reinforcement at home and in school. The LEA, in order to try to achieve this consistency, has now agreed, some 6 months after A started at Fosse Way School, to provide an outreach service from special schools in Wiltshire in the form of 0.5 of a high-level teaching assistant. The LEA produced as late evidence a draft copy of the proposed agreement. In the agreement the aim of this outreach service is to support the transfer of skills across the home/school settings, for the benefit of pupils with social communication difficulties. The agreement refers to 'advise and assist families in carrying out educational programmes within the home'. The main element is to 'provide support within the child's home for the transfer of skills and education programmes'.

E Although it was not formally conceded that A requires an extended day curriculum, the proposal put forward by the LEA is that the family carries out educational programmes within the home. This is clearly stated in the draft agreement supplied by it. It would seem to us that this is an acknowledgment that A requires an extended day curriculum and that his special needs do embrace out of hours provision. Even without this agreement, the statement and the professional advice from Mrs Pontac and Ms Ravenhill and from Mrs Webster also stressed the importance of consistency of approach. This is particularly important in the development of A's language skills and communication. [A's parents] would therefore appear to be an integral part of the provision, either as a provider of an educational programme as stated in the draft agreement, or in being taught how to achieve the necessary consistency by experts, such as the speech and language therapist.

F If [A's parents] are to be considered as a provider of education programme, then delivery should be provided by the LEA, and not by them. (Section 32 Education Act 1996) and FJ v Cambridgeshire County Council and SENDIST 2002. We have considerable doubts as to whether it is practical for [A's parents] to be able to be taught successfully the necessary programmes in order to achieve the consistency required for A to progress. It is clear that A is presenting with significant demands and that this is having a detrimental effect on the family. It is also having an adverse effect on [A's mother's] mental health. [A's father] works shifts and [A's mother] has 2 other children to look after. The stresses she is having mean that she is unable to concentrate properly on the strategies envisaged by the LEA. A falls asleep in the taxi and is often very tired after school. Provision in the statement should be reasonably practical and realistic to implement. We did not have any objective report regarding the family dynamics, such as Social Services or recent medical reports, but were persuaded by the evidence given by both [the mother and the father] and by Mrs Pontac that it is not feasible for A's parents to be such an integral part of the provision. We did not feel that the parents were simply stating that they would not cooperate, but that the difficulties created at home would preclude them from making a realistic and meaningful contribution to the provision. We had real reservations that 0.5 LSA time is sufficient in any event as it is to be shared with at least 1 other child. A lives an hour away from the school and the LSA would need to spend a meaningful amount of time in the school together with the time to spend at home. We also concluded that a temporary LSA from an agency would not be sufficient.

G A had been in receipt of an intensive ABA programme. This was withdrawn and A was placed in a mainstream primary school. There is general agreement that he was not appropriately placed. He has only recently been transferred into a specialist provision. We cannot say that the provision during the day that he receives at Fosse Way School is inappropriate. He receives specialist teaching in a small group. The TEACCH approach is used and PECS is also consistently used. There is a speech and language therapist available, although only for 1 day a week. However, we were persuaded by Mrs Pontac's evidence that A does require more and that there should be a consistency of approach between the various environments. For the reasons stated above, we were not persuaded that this would be feasible with A remaining as a day pupil at Fosse Way School and for [A's parents] to have to try to achieve the consistency of approach at home with the benefit of some support from an assistant.

H We were not persuaded that a '24-hour curriculum' is required. However, in order to achieve some consistency between the school and out of school environments, we concluded that a residential education may be able to achieve this for the length of time that A attends such a school. Ms Ravenhill was honest that the system at Radlett Lodge School was not perfect in achieving consistency into the home environment. However, we concluded that there was a considerably greater chance of this succeeding if A attended as a residential pupil, even as a weekly boarder. Having said that, there may well be difficulties for A in coming home each weekend. Ms Ravenhill, however, gave evidence that A was presently too young to be a termly boarder.

I Having concluded the above, Fosse Way School is unable to offer such an education at the present time. Unfortunately, there is no place available at Radlett Lodge School until September 2005. Although this is not satisfactory, it is the only other school that is proposed. It will be necessary therefore for A to attend Fosse Way School for the remainder of this term. It would have been pointless, in view of the timescale, to adjourn this hearing for the parents to find another school that had an immediate vacancy and none was asked for. We did not conclude that the day provision at Fosse Way School was inappropriate, only that A required more. We therefore concluded that attendance at Radlett Lodge School would not be an unreasonable use of public expenditure. Although there will be a considerable demand on the LEA's expenditure, we concluded that the proposal put forward by the LEA was not appropriate. Although it had a good intention, although rather belatedly, in creating some consistency into the home environment, further investigation should have been carried out to see if it was reasonably practical for this to be achieved in this case and some persuasive evidence given to us. It is for the LEA to persuade us that its proposal is feasible and on the evidence we had, we concluded that this was not the case. Part 4 of the statement should therefore be amended to show that A should attend Radlett Lodge School from September 2005 as a weekly boarder.

J Part 3 of the statement requires further amendment, in the light of our conclusions. Part 2 (sic) should be amended by the agreed terms which are contained in the draft amended statement annexed to this decision. Part 3 should contain provision that 'in order to achieve the necessary consistency of targets, strategies and approaches between the school environment and out of school environment that [are] necessary to meet A's special educational needs, A should attend a residential special school.'"

9. The tribunal ordered that Part 4 of the statement should be revised to read as follows:

"Until the end of the summer term 2005, attendance at a special school with provision for pupils with autism on a daily basis, namely Fosse Way School. From September 2005 attendance at a residential special school for children with autism as a weekly boarder, namely Radlett Lodge School."

10. In accordance with the decision of the tribunal, at the beginning of this month A duly started to attend Radlett Lodge School as a weekly boarder. He has now been there for about three weeks. The local education authority was dissatisfied with the decision of the tribunal. Accordingly the local education authority commenced the present proceedings.
Part 3. The Present Proceedings
11. By a notice of appeal issued on 20 May 2005, the local education authority appealed to the Administrative Court against the decision of the tribunal. As mentioned in Part 1 above, neither of the respondents has served an acknowledgement of service or taken any part in the appeal. The appeal came on for hearing yesterday. Mr Wayne Beard represents the local education authority. No one has been in court to represent the interests of A and his parents. However, Mrs Holland was present and is present as an observer. Since Mrs Holland had acted as advocate for A's parents before the tribunal, she has kindly assisted the court on one or two matters of background and on the meaning of certain technical terms where counsel is in doubt.
12. In the course of the hearing yesterday Mr Beard abandoned one of the grounds of appeal set out in the notice of appeal and developed the other grounds with varying degrees of emphasis. As argument progressed, it was clear that some of the separate grounds of appeal really formed part of a single composite head of appeal. I would summarise the grounds of appeal as finally presented in the following way:

(1) The tribunal nominated Radlett Lodge School, which was unduly expensive. A's needs could, and therefore should, have been met by Fosse Way School which was less expensive.

(2) The tribunal did not have sufficient information. Accordingly they ought to have adjourned, but failed to do so.

(3) The tribunal erred in that it failed to specify the amount of educational provision which A required.

(4) The tribunal took into account an irrelevant consideration, namely the needs of A's family rather than A's special educational needs.

The above formulation is my summary of the four principal heads of appeal as they have been presented. A number of arguments have been grouped together under each of those four heads.

13. Before dealing with the individual grounds of appeal, it is first necessary that I should outline the relevant law.
Part 4. The Law
14. Section 324 of the Education Act 1996 provides:

"(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 educational needs, and

(b) specify the educational provision to be made for the purpose of meeting those needs, including the particulars required by sub-section (4).

(4) A 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,

(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."

Section 326 of the 1996 Act empowers the parent of the child concerned to appeal to the tribunal against the contents of the statement. The tribunal is empowered either to uphold the statement or to amend the statement as it sees fit.

15. In 2001 the Secretary of State promulgated the Special Educational Needs Code of Practice for the guidance of all who are involved in this aspect of education. Paragraph 8.36 of the code provides:

"A statement should specify clearly the provision necessary to meet the needs of the child. It should detail appropriate provision to meet each detailed need."

16. Let me turn to the authorities which Mr Beard has cited concerning Section 324 of the 1996 Act. Since the other parties to this appeal have not been represented, I have every confidence that Mr Beard has drawn my attention to all relevant authorities, both those that are favourable and those that are adverse to his case. In Surrey County Council v P and P [1997] ELR 516, this court was considering earlier but similar statutory provisions. At pages 522 to 523 Mr Justice Kay said:

"Counsel have addressed detailed arguments on the effect of schedule 10 paragraph 3.3 in a case where there is more than one option appropriate to the needs of the child and where one option is more costly than the other or has disadvantages. Whilst it is unnecessary to go into such matters for the purpose of my decision, I should record that I have come to the conclusion that the submissions in this respect on behalf of the local authority were correct. Once a conclusion had been reached that each of the two alternatives would be appropriate to the special educational needs of the child, the parents' choice would prevail unless either of the exceptions set out in paragraph 10 (3) applied. Where it is necessary to consider whether they apply, it seems contrary to the Act to weigh at that stage advantages to be gained by the child in considering whether the child's attendance at the school would be incompatible with the provision of efficient education for the other children with whom he would be educated or incompatible with the efficient use of resources. Counsel for the appellant acknowledges that the use of the word 'incompatible' indicates that something more than a marginal disadvantage has to be demonstrated. The situation was that one alternative would result in significant additional expenditure, then provided both schools were appropriate for the child's special educational needs the local authority would be entitled to justify sending the child to a school other than that of the parents' choice. To hold otherwise would, in my judgment, be to oblige the local educational authority to make the best possible education available, and, as Latham J pointed out in the passage to which I have referred in S (The Special Educational Needs Tribunal) v The City of Westminster:

'Parliament has imposed an obligation to meet the needs of the child and no more.'"

L v Clark and Somerset County Council [1998] ELR 129 concerned a severely dyslexic boy. The boy's mother successfully appealed to this court on the basis that the statement, as amended by the tribunal, was insufficiently specific. At pages 136 to 137, Mr Justice Laws said:

"In my judgment a requirement that the help to be given should be specified in a statement in terms of hours per week is not an absolute and universal pre-condition of the reality of any statement. One can appreciate the force of the comment in the guidance. There will be some cases where flexibility should be retained. However it is plain that the statute requires a very high degree of specificity. The main legislation itself (and I refer to Section 324 (3) (a) and (b)) requires the statement to give details of the child's special educational needs and to specify the provision to be made. The terms of form B in the regulation, part of which I have read, are plainly mandatory and it seems to me that in many, many cases it will not be possible to fulfil the requirement to specify the special educational provision considered appropriate to meet the child's needs including specification on staffing arrangements and curriculum unless hours per week are set out. The real question as it seems to me in relation to any particular statement is whether it is so specific and so clear as to leave no room for doubt as to what has been decided is necessary in the individual case. Very often a specification of hours per week will no doubt be necessary and there will be a need for that to be done."

In R v City of Wakefield Metropolitan District Council ex p Greenwood, 29 January 1998, Mr Justice Laws held in the circumstances of that case that respite care did not fall within the meaning of "special educational provision". At page 11 of the transcript, Mr Justice Laws said:

"What is, I think, clear is that measures taken by a local education authority which are subject to appeal before the Special Educational Needs Tribunal under Section 326 must be directly related to the child's learning difficulties. Economic problems faced by the child's parents where, for example, different and perhaps more spacious living accommodation would, in an ideal world, be suitable for the family because of the child's physical disabilities are not ordinarily within the remit of the special Educational Needs Tribunal. Nor are difficulties associated with parents' disabilities where the effect is that the child is, in physical terms, more difficult to look after. Problems of this kind, in my judgment, will generally fall to be dealt with not under the Act of 1996 but (so far as they may be met by public provision) under social welfare measures made in other statutes and delegated legislation. However while that is, in my judgment, the general position, I should say that I certainly accept that there is no hard edge. As a matter of common sense and ordinary human experience, conditions in the home are almost always bound to have some effect, for better or for worse, on a child's learning capacity and educational chances. That is a general fact of family life. But for present purposes it must be distinguished from circumstances which I acknowledge it is clearly possible to envisage where some kinds of day to day domestic problems may directly relate to the child's learning difficulties. Such a direct relation must, in my judgment, be shown in order to involve such problems in the tribunal's jurisdiction under Section 326."

In C (The Special Educational Needs Tribunal) v London Borough of Greenwich [1999] ELR 5 the statement issued by the local education authority, as amended by the tribunal, included the following passage:

"The tribunal found that it had insufficient evidence to make an order as to whether the national curriculum should or should not be disapplied, and that therefore the provision for C needs to include an assessment of the extent to which he could follow the national curriculum and a placement in which the core subjects of the national curriculum would be available and he would have access to other subjects (perhaps at another local college) if the assessment proves that the provision of the whole national curriculum would be appropriate."

Mr Justice Richards held that a statement in that form was unlawful in this respect. At page 13 the judge said:

"I accept that there will be cases where flexibility is required, but I do not accept that in this case provision for assessment in Part 3 of the statement is lawful. I have serious doubts whether it is open to a tribunal to make a provision for future assessment of this kind, an assessment calculated to determine the extent of a child's curriculum needs. It is the tribunal's responsibility, on appeal, to determine what the needs are and what provision is required for them. It is far from clear to me that it can, in effect, delegate that responsibility to someone else thereby creating just the sort of problem that has arisen here where the outcome is disputed but there is no avenue of appeal."

W v Gloucestershire County Council [2001] EWHC Admin 481 was a case in which important material was not before the tribunal. Mr Justice Scott Baker quashed the decision because the tribunal did not take into account an important factor. At paragraph 15, the judge said:

"Whatever the reason, it seems to me that if there was inadequate information the tribunal should have taken steps to obtain it, if necessary adjourning to do so. Tribunals, so it seems to me, cannot proceed on a purely adversarial basis but have a duty to act inquisitorially when the occasion arises by making sure they have the necessary basic information on which to decide the appeal before them rather than rely entirely on the evidence adduced by the parties. The tribunal will usually have much greater relevant expertise than the parents who appear before them."

Finally, I should mention L v London Borough of Waltham Forest and Another [2003] EWHC 2907 (Admin). The circumstances of that case are far removed from the present. However there is one passage which is relevant to the grounds of appeal in this case. At paragraph 14 of his judgment, Mr Justice Beatson said:

"Reasons must first deal with the substantial points that have been raised so that the parties can understand why a decision has been reached. This is seen from S v Special Educational Needs Tribunal and the Lucy M case. In H v Kent Mr Justice Grigson stated that what was necessary was that the aggrieved party should be able to identify the basis of the decision. Secondly, a specialist tribunal such as the Special Educational Needs and Disability Tribunal can use its expertise in deciding issues, but if it rejects expert evidence before it, it should state so specifically. In certain circumstances it may be required to say why it rejects it (see H v Kent, Grigson J at paragraph 15). Thirdly, mere recitation of evidence is no substitute for giving reasons (see J v Devon County Council, per Gibbs J at paragraph 50). Fourthly, and linked to the second point, where the specialist tribunal uses its expertise to decide an issue it should give the parties an opportunity to comment on its thinking and to challenge it. That is established in the Mental Health Review Tribunal context by the Clatworthy case and in the context of this tribunal in Lucy M v Worcestershire County Council."

Bearing in mind all of the above guidance, I must now turn to the issues in the present case.

Part 5. Did the Tribunal err in law in nominating The Radlett Lodge School rather than Fosse Way School?
17. Mr Beard submits that on the tribunal's finding the educational provision which A was receiving at Fosse Way School was not inappropriate (see paragraphs (G) and (I) of the tribunal's reasons). A placement at Radlett was substantially more expensive than a placement at Fosse Way. The local education authority's duty was to provide appropriate education, not the best possible education (see Surrey County Council v P and P, pages 522 to 523). Therefore the tribunal erred in law in substituting Radlett Lodge School for Fosse Way School.
18. In my judgment, this argument is unsound. The passages in paragraphs (G) and (I) of the reasons must be read in context. The educational provision at Fosse Way School was not inappropriate but (and this is important) there was not enough of it. For a significant part of the day A was not at school. He had a one-hour journey each way (or longer if there was heavy traffic). In addition, A had time at home when he needed but was not receiving educational provision similar to that provided at school. Accordingly, on their findings of fact, the tribunal were right to reject Fosse Way School. Was it over-provision, as Mr Beard says, to place A in Radlett? Mr Beard places heavy emphasis on the first sentence of paragraph H. This reads:

"We were not persuaded that a 24-hour curriculum is required."

The phrase "24-hour curriculum" is not a helpful one, essentially for the reasons given by Mr Justice Laws in R v City of Wakefield Metropolitan District Counsel ex p Greenwood at page 12 of the transcript. No child literally requires a 24-hour curriculum.

19. The more important finding of fact, in my judgment, is that set out in paragraph J of the reasons. The tribunal there found that in order to meet A's special educational needs, A should attend a residential special school. Mr Beard next points to the comment in paragraph G that the system at Radlett Lodge School was "not perfect" for A's purposes. In my view, that fair and balanced comment in the tribunal's decision does not undermine the tribunal's decision. The educational provision is not required to achieve perfection (see Surrey County Court v P and P at pages 522 to 533). It is clear from the tribunal's findings overall that the educational provision at Radlett Lodge School reaches the threshold of being appropriate and would meet A's special educational needs.
20. The next point made by Mr Beard concerns the difference in cost. A placement at Fosse Way School costs £12,200 per annum whereas a placement at Radlett costs about £70,000 per annum. These are large sums of money. Neither the local education authority, nor the tribunal, nor this court can simply brush this point aside. On the other hand, Section 324 of the 1996 Act does not permit inappropriate educational provision to be made simply on grounds of cost. Furthermore the tribunal specifically considered the financial issues in this case. The tribunal concluded in paragraph (I) that placement at Radlett Lodge School was a reasonable use of public funds.
21. This court, hearing an appeal on points of law only, pursuant to Section 11 of the 1992 Act, cannot quash the tribunal's decision on grounds of undue extravagance.
22. Accordingly I reject the first ground of appeal. My answer to the question posed in Part 5 of this judgment is no.
Part 6. Did the Tribunal err in failing to adjourn?
23. In relation to this issue Mr Beard points to certain passages in the decision where the tribunal regret omissions from the evidence. In particular, Mr Beard relies upon the following passage in paragraph (c):

"As to Part 3, we were at some disadvantage in that we had not been supplied with up to date reports following A's transfer into a specialist environment. The only such report that we had was that from Mrs Pontac. It would be helpful if we had received reports from Fosse Way School and from the NHS speech and language therapist that sees A. However the tribunal has to reach a decision on the evidence supplied to it."

Mr Beard submits that in this passage the tribunal misunderstood their function (see W v Gloucestershire County Council at paragraph 15).

24. I am not persuaded by this argument for four reasons:

(1) Although there were omissions from the evidence, it is clear from the decision as a whole that the tribunal had quite enough evidence to decide the issues before them. For example, in paragraph (c) the tribunal went on to say that, despite the absence of evidence which they would expect to see from the local authority, the tribunal was able to decide these particular points on the basis of Mrs Pontac's evidence.

(2) At no point did either party apply to the tribunal for an adjournment.

(3) The passage in W v Gloucestershire County Council is addressing primarily the position where parents failed to adduce relevant evidence (see the last sentence). Local authorities generally have greater resources and greater understanding of the issues that arise in these sorts of cases. Of course, in an extreme case the tribunal might adjourn of its own motion, without any application, because it considers that the local authority had prepared its evidence inadequately. However this is not such an extreme case.

(4) Let me suppose that half way through the hearing the clerk to the tribunal had reminded members of their power to adjourn of their own motion and had invited them to consider doing so. It seems to be inevitable that in the circumstances of this case the tribunal would have decided not to do so. This was a case where there had been delay already. The child A had been sent to an inappropriate primary school (see paragraph G). On top of that, ever since July 2003, the necessary out-of-school provision had been withdrawn. All this was to A's detriment. In addition to these considerations, there was already a five-month waiting time for a place at Radlett Lodge School.

25. In my view, even if the tribunal had specifically addressed the question of adjournment, they would have decided to press on.
26. There is another way, however, in which Mr Beard puts his adjournment argument. He submits that on the issue of how much educational provision was required, the tribunal came to a conclusion which was mid-way between the parties' respective cases. In coming to this conclusion, the tribunal members must have been using their own expert knowledge. The tribunal ought to have invited the parties to comment on its conclusion, but failed to do so (see LR v London Borough of Waltham Forest at paragraph 14). The tribunal also should have given the local education authority the opportunity to put in further evidence on this matter. In particular, the local education authority should have been invited to gather evidence on how the authority could meet the requirement for additional educational provision without sending A to a residential school.
27. I do not accept these arguments. First, the tribunal's conclusion on the need for additional educational provision was quite close to the parents' case as presented. Secondly, the duty to invite comments on a tentative conclusion only arises when that conclusion is in some way novel or unforeseeable. When a court or tribunal weighs up expert evidence and comes to a conclusion somewhere between the two experts, the above principle is seldom engaged. In the present case the parameters within which the tribunal would reach its decision were obvious. There was no need to invite further comment. Furthermore the local education authority was perfectly well aware that it was an issue at the hearing what out-of-school provision could be provided to the child and, indeed, the local education authority did put in evidence on this topic.
28. For all of the above reasons I have come to the conclusion that the tribunal did not err in failing to adjourn of its own motion, so that the local education authority could put in further evidence. My answer to the question posed in Part 6 of this judgment is no.
Part 7. Did the Tribunal err in that it failed to specify the amount of educational provision which A required?
29. This contention is formulated in five different ways in the notice of appeal (see paragraph 17 (1) to (5)). The essential argument, however, is this. The tribunal indicated that additional educational provision was required outside the school day, but the tribunal did not quantify that in hours or otherwise. Thus Radlett Lodge School has not been told what it should be doing. The lack of specificity in the statement is contrary to paragraph 8.36 of the code and contrary to the guidance given by Mr Justice Laws in L v Clark and Somerset County Council at pages 136 to 137. Furthermore the degree of discretion left to Radlett Lodge School amounts to an unlawful delegation (see C v Special Educational Needs Tribunal and London Borough of Greenwich at page 13).
30. I reject this argument for four reasons. (1) The tribunal has decided that A requires substantial educational provision outside normal school hours, such that he needs to attend a residential school. (2) At Radlett Lodge School A will be continuously in the care of professionals. The school staff can be trusted to provide the necessary provision outside school hours without being tied to a set number of hours. Where a child is at a day school and the therapist will attend his home regularly, there may well be a need for the statement to specify a precise number of hours. Where however the child is attending a residential special school, it seems to me that greater flexibility can be allowed. (3) The extent of the delegation to Radlett Lodge School in this case is substantially less than the delegation which was held to be unlawful in C v Special Educational Needs Tribunal and London Borough of Greenwich. (4) Even if the tribunal in this case ought to have been more prescriptive than they were, it would not be a proper exercise of discretion to overturn the tribunal's decision on that ground. A's education has already suffered sufficient disruption. The precise number of hours of educational provision can, if necessary, be specified in the next annual review.
31. For all of these reasons my answer to the question posed in Part 7 of this judgment is no.
Part 8. Did the Tribunal take into account an irrelevant consideration?
32. This ground of appeal is focused primarily upon paragraph F of the tribunal's decision. Mr Beard contends that the tribunal took into account the needs of the family, and that these are not a proper consideration (see Section 124 of the 1996 Act and R v City of Wakefield Metropolitan District Council ex p Greenwood at page 11 of the transcript). I do not agree with this analysis. The tribunal has found that the parents cannot deliver the specialist educational provision which A requires outside normal school hours. Accordingly placement in a residential school is required. Paragraph F of the decision sets out the tribunal's reasoning in this regard. In my view, nothing in paragraph F suggests that placement in a residential school is regarded as necessary in order to meet the needs of A's family.
33. For these reasons my answer to the question posed in Part 8 of this judgment is no.
Part 9. Conclusion
34. For the reasons set out in Parts 5, 6, 7 and 8 above, each of the local education authority's grounds of appeal is rejected.
35. I am grateful to counsel for his considerable assistance and the fair way in which he has presented the local education authority's case. This appeal is dismissed.
36. MR BEARD: I am instructed to seek permission to appeal from this court to the Court of Appeal. The basis is that these matters are of general public importance and that they have a greater application beyond the extent of this individual case. That is the basis.
RULING
37. MR JUSTICE JACKSON: This an application for permission to appeal. The application is put, essentially, on two grounds. First - although Mr Beard was too polite to press this hard - it is submitted that I have got it wrong in my judgment. Secondly, it is said that the issues in this case are of general importance and for that reason a decision of the Court of Appeal upon the matter is required.
38. Any judge approaching an application for permission to appeal must consider the issues with some humility, recognising that judges do fall into error. Nevertheless I take the view in this case that the appeal has no real prospect of success.
39. Let me turn to the second ground. Clearly the issues raised in this case are matters of general importance. On the other hand, there is a generous abundance of authority including Court of Appeal authority on all of these matters. It seems to me that the decision in this case simply involves the application of well established principles to the facts of this case. I do not think there is any need to make further additions to the law reports in this regard. Permission to appeal is refused.
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