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
		29 November 2005

1. . MR JUSTICE LINDSAY:  I have before me an appeal by Miss I. against, firstly, the London Borough of Redbridge and, secondly, Mrs MA Richards, Chair of the Special Educational Needs and Disability Tribunal.  Miss I. has a son J. and this appeal concerns his education.  Mr Edwards appears for Miss I.; and neither the London Borough of Redbridge nor Mrs Richards appears or is represented.  To that extent they do not actively oppose the appeal, although the London Borough of Redbridge has put in an argument to resist the appeal.
2. . There are three points which Mr Edwards chiefly relies upon in his appeal against the decision of the tribunal.  The first concerns the tribunal's rejection of some late evidence.
3. . It was a case in which there was other late received evidence on any basis because a report by Penny Tolson, the education authority's dyslexia consultant and a report by Clair Warner, Head of the Ethel Davis Outreach Service, were admitted late, but Miss I. had instructed an occupational therapist, Louise Williams, who produced a report which Miss I wished to lay before the tribunal for their consideration.
4. . There had earlier been a report of Pamela Graham on or around 16th April 2005, which had, amongst other recommendations, suggested that J. ought to be referred to an occupational therapist.  She, in effect, said that that would be a good idea.  There were difficulties encountered by Miss I., first of all in finding an occupational therapist at all and then finding one who had some prospect of being able to report in time for the hearing.  The outcome was that although Louise Williams was found as an occupational therapist and was able to produce a report which is dated 27th June, that report was not actually supplied to either Miss I. or her solicitors until 7th July.  The hearing was on 12th July.  In fact only two working days - because there was a weekend in between - lay between the service of Miss Williams' report on the tribunal and on Redbridge and the hearing itself.
5. . This was dealt with at the tribunal, who reported as follows:

"We were also asked to admit an occupational therapy report by Louise Williams, which was presented by Miss I.  Since this had not been circulated before the hearing, regulation 33(3) applied.  The LEA opposed its admission.  We decided that it should not be admitted because there was evidence that it was available by 27 June, but had not been sent to the tribunal.  The circumstances were not, in our view, wholly exceptional, and we did not consider that the omission of this evidence would prejudice J."

6. . That requires one to look at the Special Educational Needs Tribunal Regulations 2001.  At regulation 32(2) it says:

"The tribunal shall conduct the hearing in such manner as it considers the most suitable to the clarification of the issues and generally to the just handling of the proceedings ..."

At that stage there is a general provision on broad discretion in the tribunal.  Then at regulation 32(4) one finds this:

"The tribunal may, if it is satisfied that it is just and reasonable to do so, permit--

 (a) the parent to rely on and ... to adduce evidence not presented to the authority before or at the time it took the disputed decision ..."

On the face of things, at that stage, as long as the person seeking to get the evidence in can show it is just and reasonable to have it admitted and can satisfy that onus then the evidence would be in.  At that stage there is, again, a very general provision. 

7. . But there is a later regulation, regulation 33, which is headed "Late written evidence" and is far more specific and I think the intention can only be that the general passages to which I have referred are overborne by the more specific passages to which I shall now turn.  Regulation 33:

"(1) At the beginning of the hearing, a party may submit further written evidence which satisfies the conditions set out in paragraph (2) below unless the tribunal, after considering any representations from the other party, is of the opinion that that would be contrary to the interests of justice.

 (2) The conditions referred to in paragraph (1) are that--

(a) the evidence was not, and could not reasonably have been, available to that party before the end of the case statement period;

(b) a copy of the evidence was sent or delivered to the Secretary of the Tribunal and to the other party to arrive at least five working days before the hearing; and

(c) the extent and form of the evidence is such that, in the opinion of the tribunal, it is not likely to impede the efficient conduct of the hearing."

8. . Unfortunately for Miss I.'s position, regulation 33(2)(b) was not satisfied.  As I have mentioned, there were not at least five working days before the hearing but only two between its submission and the date of the hearing, and so regulation 33(1) cannot apply because the evidence did not fall within regulation 33(2).
9. . But there is then a further provision as to evidence that does not fall within regulation 33(2), because regulation 33(3) says this:

"If paragraph (1) does not apply, the tribunal may give a party permission to submit further written evidence at the hearing if it is of the opinion that--

(a) the case is wholly exceptional; and

(b) unless the evidence is admitted, there is a serious risk of prejudice to the interests of the child."

10. . It is an unusual provision, in the sense that, unless regulation 33(3)(a) and (b) are satisfied, there is no discretion whatsoever in the tribunal: it would have to refuse the new material.  But what is meant by (a) - "the case is wholly exceptional"?  What is "the case"?  It is interesting to note that the tribunal translated that, so to speak, by saying "the circumstances were not in our view wholly exceptional".  I think, on balance, that they were right to do so.  I do not think "the case" refers to the nature of the whole substance of the proceeding before the tribunal but is intended instead to refer to the case so far as it relates to the late production of written evidence; in other words, the circumstances surrounding the application for admission of late written material.  Can it be said, on that footing, that such circumstances were wholly exceptional? 
11. . At one level, nothing could be simpler than to say there is nothing exceptional about material being produced late because it had not been commissioned and received early enough.  But Mr Edwards says that when the tribunal said "we decided that it should not be admitted because there was evidence that it was available by 27th June, but had not been sent to the tribunal", the circumstances which the tribunal themselves described themselves as considering represented such a misunderstanding by the tribunal that there cannot have been a fair exercise of deciding whether or not "the case" was wholly exceptional.
12. . It is not disputed but that the material had not been available by 27th June to any of the parties, and certainly not to Miss I. or her solicitors.  The tribunal looked at the date on Louise Williams' report or assessment but failed to notice that the date she had ascribed to the report was not the date on which it had been supplied to anyone else.  It is clear that it was not supplied until 7th July and it is clear it was not available by 27th June.  It is also clear that it had, indeed, been sent to the tribunal, late of course, on 7th July, but, for all that, it had been sent.  So that the two aspects to which the tribunal referred - availability by 27th June and failure to send to the tribunal - were wrong on both counts and I see force in Mr Edwards' submission that when the tribunal go on to say "the circumstances were not wholly exceptional" they were not considering the circumstances as they truly were.  How they would have regarded the matter had they properly understood the circumstances is not for me to guess at.  It might well be they would have come to exactly the same conclusion as they purported to do but that would be me exercising a discretion which I do not have and guessing at what they would have exercised as their discretion had they properly considered the matter.  So I do see force in Mr Edwards' submission that there had not been a proper consideration of the "the case" within regulation 33(3)(a).
13. . That, of itself, would not greatly assist Miss I. because there was still the question of whether there was serious risk of prejudice to the interests of the child possibly demonstrable under regulation 33(3)(b).  It is to be noted that it is the risk that has to be serious, not the prejudice.
14. . Now Louise Williams, as an occupational therapist, made some practical suggestions that one would think would assist J, the failure to consider which might risk prejudice to J. - indeed might seriously risk prejudicing his interests.  For example, she suggested that his teachers should see her report.  She suggested that a laptop be recommended.  That in fact was already fairly common ground.  But she gave detail which was not apparent otherwise.  She suggested that, because of his ability readily to be distracted, he should always have an uncluttered desk.  She suggested that he should always work on lined rather than unlined paper.  She said that it would help him if he always sat in the front at school and in the middle.  She suggested also that he should have short breaks every fifteen minutes or so.  Those were highly practical suggestions, the denial of which to the tribunal in its consideration could, as it seems to me, seriously risk prejudice to his interests.
15. . Again it is not for me to decide that that was the case, but at least I can see a real possibility that that was so.  In other words, it does seem to me that the discretion that the tribunal were required to exercise under regulation 33(3) was not properly exercised as to regulation 33(3)(a) and that it cannot be said that, even if there had been a proper consideration, J. would assuredly have been no better off.  So on this first of three points I see that it would be right to remit the matter to the tribunal for them to have a fresh look at the whole position, this time receiving Louise Williams' evidence, assuming that, second time round, it is put before them.  That is the first of the three points. 
16. . A second point deals with what the tribunal referred to as merely "semantic" difficulties.  J. might or might not be dyslexic and might or might not be dyspraxic.  There was evidence before the tribunal that seemed to point certainly to dyslexia, less clearly, perhaps, to dyspraxia.  The tribunal were urged to make reference to J.'s dyslexia but ultimately they could not quite bring themselves to do that.  Instead they suggested an amendment that wrote that "J. shows difficulties typical of dyslexia and dyspraxia".  That was added to part 2.  In part 3, however, they said by way of addition:

"A carefully structured programme to improve his literacy skills, taking into account his dyslexia, for a minimum of two sessions a week."

17. . In practical terms, what is the difference likely to be between a statement that speaks of J. having difficulties typical of dyslexia and dyspraxia and having a structured programme that takes account of his dyslexia as opposed to a clearer statement that he indeed does have dyslexia and dyspraxia?  There is no suggestion in part 2 that his difficulties typical of dyslexia and dyspraxia are in any sense dissimulations by J. or otherwise such that he does not actually have dyslexia and dyspraxia.
18. . Mr Edwards says that it is crucial, in practical terms, especially as staff change and as years pass and schoolteachers change and so on, that anyone should be able to pick up the statement and clearly see what J.'s problems are and that does not in terms say that he actually has dyslexia and dyspraxia put him at a disadvantage.
19. . I am bound to say I do not find that compelling, but it may be that there is something in the point, and if the matter is to be remitted in any event because of the evidence ground that I have spoken of already, well then, on the rehearing the tribunal can be urged by fresh argument to grasp the nettle and clearly to say whether J. does indeed have dyslexia and dyspraxia.
20. . There is another aspect of that addition to part 3 which is suggested, where it speaks of a "minimum of two sessions a week".  As a third argument Mr Edwards says that that indicates insufficient specificity.  A "minimum of two sessions a week" is, he says, another fudge.  The first fudge was a failure clearly to say whether there was dyslexia or dyspraxia.  This, he says, is the second fudge.
21. . I would have thought myself that specifying a minimum was sufficiently specific, but again it is an issue which can be redeveloped on the matter being remitted to the tribunal.  Clearly if the tribunal to which the matter is remitted can give not merely a minimum but a wholly specific figure, well then, that would make practice in the future even more clear.  But that I leave to the tribunal to which the matter is remitted.
22. . Then the fourth of the four complaints is that, in their order the tribunal says, by way of a change in part 3:

"To specify in para 3.3 that 'Miss I. is to be consulted before any changes are made to the support programmes described in part 3."

23. . Mr Edwards says that that, in effect, allows the council to make amendments to the statement after merely 'consulting' Miss I.  It gives them the ability to amend after mere consultation but does not give any corresponding right, indeed it denies, the corresponding right of appeal.  Mr Edwards draws to my attention the Rotherham case before Bell J.  There what was written in was:

"Occupational therapy and speech and language therapy as deemed necessary and provided by the local health trust."

The argument was that that, in effect, conferred an ability to change in a way which deprived Mrs E (as it was in that case) of a right of appeal: see paragraph 33.

24. . I do not think ultimately the point was decided in the E case, but it was certainly raised in E.  That, again, is an issue which can be dealt with and should be dealt with at the rehearing. 
25. . Reverting to all four points together, I see the strongest issue as being the one that derived from the failure to admit Louise Warner's assessment, but the other three are cumulative minor issues which, in fresh argument before the tribunal, one would hope would be clearly developed and clearly ruled upon.  But that, of course, is a matter for the tribunal to which the matter is remitted.
26. . Coming to the substance of the case, I shall ask Mr Edwards for submissions on the precise form of order required, but I, as I have indicated, am willing to set aside the decision of the tribunal and remit it to a different tribunal for hearing afresh. 
27. . Mr Edwards, what is the proper form of order, that being so?
28. . MR EDWARDS:  I think I would say, my Lord, that you have it already, but the court orders that the decision of the tribunal be set aside and the matter be remitted to a fresh tribunal.
29. . MR JUSTICE LINDSAY:  Do I use the word "different" tribunal?
30. . MR EDWARDS:  I am not sure, my Lord.  (Pause.)  Yes.
31. . MR JUSTICE LINDSAY:  I am told that in this context "fresh" means different.
32. . MR EDWARDS:  I am in the court's hands on that.
33. . MR JUSTICE LINDSAY:  I will have a word with the learned associate.  I prefer the word "different" because it does suggest that it should be other than the very people that considered it before.
34. . MR EDWARDS:  Yes.  My instructing solicitor has suggested "freshly constituted", but "different" I think is one you would rather use.
35. . MR JUSTICE LINDSAY:  Yes.
36. . MR EDWARDS:  I would also ask the court for an order of anonymity for the child under section 33 of the Children and Young Persons Act.
37. . MR JUSTICE LINDSAY:  That goes without saying, does it?
38. . MR EDWARDS:  My Lord.
39. . That then brings me to the matter of costs, my Lord.  The tribunal has not entered the proceedings and in any event the law is clear that we cannot get the costs against the tribunal except in wholly exceptional cases, of which this would not be one.  But we do seek our costs against the local authority because it did enter the process by putting in a defence. 
40. . The appellant is legally aided.  So first of all I need an order for a detailed assessment of her costs.
41. . MR JUSTICE LINDSAY:  You can have that, yes.
42. . MR EDWARDS:  I also seek our costs of the appeal.
43. . MR JUSTICE LINDSAY:  I do not think Redbridge has added to the expenses that your side had to incur.
44. . MR EDWARDS:  On that, my Lord, there are two things I would say.  The first is that they had these papers, including the main substance of my skeleton argument, back in August and the first thing we heard from them was on Friday afternoon.  They could have directed their minds to this matter a lot earlier and agreed remission to the tribunal rather than causing us to appear before the court.  This matter could have been dealt with if the council had, having put in a defence, which we say does not meet the issues in any event, dealt with this matter by consent or by remission a lot earlier, certainly when it was clear the tribunal was not appearing, which was clear in the order.  So, in my submission, they have very substantially added to our costs by causing us to prepare.
45. . MR JUSTICE LINDSAY:  You would have had to come here in any case, would you not?  You would have had to say what you said?
46. . MR EDWARDS:  Not if they had agreed to remit the matter - if it had been between the parties to remit the matter to a new tribunal.
47. . MR JUSTICE LINDSAY:  That would be so as long as you had been able to agree that also with the chair of the tribunal.  But you have not been able to agree that either.
48. . MR EDWARDS:  But it dropped out of the process.  The appeal before the tribunal was between the council and Miss I; and if the council had agreed that the matter go back to a new tribunal then the appeal could have been withdrawn and the matter gone back to the tribunal.
49. . The second point I say is that it is unacceptable for them only to direct their mind to this matter, notwithstanding having been prompted several times to do so, only on Friday afternoon.
50. . MR JUSTICE LINDSAY:  I am not convinced that the attitude taken by Redbridge or the tribunal's chairman have truly added to the expense that Miss I. as appellant has had to incur.  In my view she would have had to have been represented and to have made arguments as she has.  To that extent, whilst I order a legal aid taxation of her costs, I do not make any provision for a recovery from Redbridge or from the tribunal chairman.
51. . MR EDWARDS:   Thank you, my Lord.
52. . MR JUSTICE LINDSAY:  Is there anything else I need to do?
53. . MR EDWARDS:  I do not think so; that is it.  Thank you, my Lord.