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 April 2005

1. MR JUSTICE SULLIVAN:

Introduction

2. This is an appeal under section 11 of the Tribunals and Inquiries Act 1992 against a decision of the second respondent ("the Tribunal") dismissing the appellant's appeal under section 329 of the Education Act 1996 ("the Act") against the refusal of the first respondent ("the LEA") to carry out a statutory assessment of the special educational needs of the appellant's son, A.

Facts

3. The Tribunal's decision is dated 28th January 2005 and followed a hearing on 18th January 2005. A is now 8 years old. There is a history of family instability. His mother was diagnosed as having serious mental health problems and separated from the appellant in 1998. The appellant is now the sole carer for A who has had no contact with his mother since 2001. A has suffered difficulties with speech and language and behavioural problems since an early age. In 1999, when aged 2-and-a-half, he attended a creche and was referred to a speech and language therapist by a health visitor. There was a great deal of written evidence before the Tribunal dealing with A's difficulties over the years since 1999. The Tribunal summarised the current position in paragraph 1 of its decision:

"[A] is a pupil in Year 3 at [F] Primary School, which is a mainstream school maintained by the LEA. He has special educational needs as a consequence of difficulties arising from severely delayed receptive and expressive language skills, difficulties with social and interaction skills, and difficulties with attention and concentration. He is currently undergoing assessment as to a possible diagnosis of Attention Deficit Hyperactivity Disorder (ADHD). He suffered neglect and emotional abuse when younger, which resulted in a residence order in favour of his father and with no current contact with his mother."

4. The Tribunal heard evidence from the appellant himself and he relied on two recently compiled expert reports from Ms Herman, a speech and language therapist who assessed A on 28th October 2004, and Ms Burgess, an educational psychologist who assessed A on 24th November 2004. The Special Educational Needs Co-ordinator at the school, Ms Fyfe-Hudson, also gave evidence to the Tribunal.
5. Section 324 of the Act requires the LEA to make an assessment of a child's educational needs if they are of the opinion that the child falls, or probably falls, within subsection (2). The child falls within subsection (2) if:

"(a) he has special educational needs, and

(b) it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for."

6. Section 329(1) enables the parent of a child for whom no section 324 statement is maintained to ask the LEA to arrange for an assessment. If "it is necessary for the authority to make an assessment under that section, the authority shall comply with the request". If the LEA do not comply with the request, the parent may appeal to the Tribunal under subsection (2)(b). The Secretary of State has issued a Code of guidance to which both the LEA and the Tribunal had to have regard under section 313 of the Act. Paragraph 7.34 of the Code says:

"In deciding whether to make a statutory assessment, the critical question is whether there is convincing evidence that, despite the school, with the help of external specialists, taking relevant and purposeful action to meet the child's learning difficulties, those difficulties remain or have not been removed sufficiently and may require the LEA to determine the child's special educational provision. LEAs will need to examine a wide range of evidence."

7. In its statement to the Tribunal dated 11th November 2004 the LEA said in part:

"The Panel gave careful consideration to all the evidence submitted but declined to initiate a statutory assessment. The Panel was of the view that there was insufficient information in the documentation submitted to indicate [A's] level of needs. The Panel was also not sure what measures the school has taken to address any identified needs ...

"Whilst the LEA treats all requests for statutory assessment seriously, it is very difficult to discern from the documentation submitted for consideration what [A's] needs are. The LEA wrote to the school on 30/04/04 for information regarding school-based provision when the request for a statutory assessment was made by the parent, but did not receive any response. There is also reference in the documentation to [A] probably having ADHD, but nothing conclusive. The same applies to his speech and language needs. Information provided by the parent also pertains mostly to care/custody issues, with little reference to [A's] special educational needs."

8. Having referred to A's SAT attainments in 2004 and assessments in 2005 that had been provided to the Tribunal by Ms Fyfe-Hudson, the Tribunal in paragraph 2 of its decision described the provision that the school was making for A:

"Up to Christmas 2004 [A] had 2 x 30 minutes per week social skills groups, and also small group work in relation to his literacy skills. [A] had no direct input in relation to his speech and language difficulties.

3. In the current term we were told that he will receive one to one input from a speech and language therapist at school, one session per week, and if required after this term, one to one therapy would be provided by a teaching assistant, monitored by the therapist who is available in school one day per week.

4. The LEA maintain that a statutory assessment is not necessary as [A's] difficulties are understood and he is making progress in literacy and numeracy, as evidenced by his SAT attainments, and the LEA are satisfied that [A's] speech and language needs are met by the provision arranged through the school by the visiting speech and language therapist.

5. [The appellant] has at least 3 concerns in relation to provision for his son's special educational needs. Firstly, he considers that the school is not fully aware of [A's] needs and therefore cannot judge the extent of appropriate provision. Secondly, there has been no direct speech and language therapy in [A's] first term in Year 3, and therapy in the third term by a teaching assistant, as apparently proposed, he does not consider to be appropriate. Thirdly, he is concerned about the absence of documentation from the school as to the provision made, and outcomes, whilst at the same time he is sceptical as to what the disclosed documents show so far. He is also critical of the apparent absence of contact with him as to provision for [A's] needs, and any way in which [he] may assist."

9. The Tribunal then set out its own conclusions, making it clear at the outset that it had considered all of the oral and written evidence submitted, together with the relevant provisions of the Code, including paragraph 7.34 above, together with A's interests. The Tribunal's conclusions were shortly expressed as follows:

"A. We accepted the evidence from Ms Fyfe-Hudson, Special Educational Needs Co-ordinator (SENCO) from [the school], as to [A's] SAT assessments and scores in June 2004 and January 2005. We consider that these indicated appropriate progress in relation to [A's] literacy and numeracy needs.

B. We were concerned as to what may best be described as 'patchy' speech and language provision in 2003/2004 (6 sessions took place out of 18 planned) and we had no evidence of any particular input from the speech and language therapist, even indirectly, for [A] in his first term in Year 3. However, we accept that appropriate one to one provision, weekly, from the therapist is planned for the current term, and we are satisfied that this one to one provision can continue thereafter, albeit conducted by a teaching assistant, monitored by the speech and language therapist. We find that this is appropriate provision to meet [A's] speech and language therapy needs, and to that extent we disagree with the recommendations of Tanya Herman, speech and language therapist, in her report following her assessment on 28 October 2004. Otherwise her recommendations as to provision are such that we are satisfied, on the evidence of the SENCO, that these will be made by the school in tandem with the speech and language therapist.

C. We had regard to the recommendations of the educational psychology report of Naomi Burgess, of 14 December 2004, commissioned on [the appellant's] behalf. We do not agree with her conclusion as to the need for a statutory assessment. In spite of the range of [A's] difficulties, as detailed in the conclusion of Ms Burgess' report, and the ongoing psychiatric assessment in relation to ADHD and the possible prescription of Ritalin, we consider that the school is still able to co-ordinate and make appropriate provision for [A] from within their own resources and that LEA involvement is not necessary. We find that the school are making appropriate provision for [A].

D. In making these findings, and therefore rejecting this appeal, we would like our concern noted as to what came over to us as a lack of constructive and helpful contact between [the appellant] and the school. Indeed the impression given to the tribunal by [the appellant] was the main issue, for him as [A's] parent, was that he did not know what was happening, and possibly being achieved, with [A] at school. We sincerely hope that the parties are able to find a way of sharing information concerning [A] and his special educational needs, and provision arising, to [A's] obvious benefit ..."

The grounds of appeal

10. Against this background Ms Peter submitted on behalf of the claimant that the Tribunal had erred in three respects. Firstly, it had failed to give "any or any proper reasons" for rejecting the uncontradicted expert evidence of Ms Herman. Secondly, it had failed to give "any or any proper reasons" for rejecting the uncontradicted expert evidence of Ms Burgess and, insofar as reasons had been given for rejecting her evidence, the Tribunal's rejection of her evidence had been perverse. Thirdly, the Tribunal's conclusion that A was making appropriate progress on the basis of the SAT assessments and scores alone was irrational, given the mass of other evidence which explained the range and extent of A's difficulties.
11. In my judgment none of these criticisms of the Tribunal's decision is justified for the following reasons. It is common ground that a Tribunal's summary reasons must "deal with the substantial points that have been raised so that the parties can understand why a decision has been reached". (See the R(L) v Waltham Forest London Borough Council [2003] EWHC 2907 [2004] ELR 161 per Beatson J at paragraph 14.) Although the claimant laid stress on the fact that his two experts' reports were uncontradicted, it is well-established that the Tribunal is entitled to use its own 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 ..." (Ibid)

12. Pausing there, there can be no doubt that the Tribunal specifically stated that it disagreed with the evidence of Ms Herman and Ms Burgess and that it explained the extent of that disagreement. The only question is whether, read as a whole, the decision can be understood by the parties.
13. I accept Mr Oldham's principal submission on behalf of the first respondent (the second respondent did not appear) that in answering that question it is important to understand the limited area of disagreement between the Tribunal and the appellant's experts' reports. There is no indication in the Tribunal's decision that it disagreed with the experts' assessments of A's difficulties. So far as Ms Herman's report was concerned, there was no dispute that A required a speech and language therapy programme. The only dispute was as to the extent of that programme. The concluding paragraph of Ms Herman's report said that:

"[A] needs a speech and language therapy programme that will include:

i) A direct and weekly session of speech and language therapy intervention for a minimum of 45 minutes that will focus on the development of his receptive and expressive language skills. This programme needs to be administered by a speech and language therapist.

ii) A communication programme that is integrated throughout his school day, in liaison with teaching staff and home environment.

iii)Opportunities for small group work to consolidate ideas targeted in the individual therapy session and generalisation of these skills.

iv) Input to IEP targets and regular review of his progress."

14. So far as points (ii) to (iv) are concerned, the Tribunal was entitled to be satisfied on the evidence of Ms Fyfe-Hudson that such provision would be made by the school in tandem with the speech and language therapist. That leaves recommendation (i). In respect of that recommendation, the Tribunal accepted that there should be a direct ("one to one") weekly session of speech and language therapy intervention. A session of 30 minutes' duration was proposed by the school for the current term. That provision would be delivered by the therapist. For the succeeding terms, if the therapist considered it necessary, the same provision would be made, not directly by the therapist in person, but by a teaching assistant monitored by the therapist. Thus the disagreement was limited to whether a session of 45 or 30 minutes' duration should be provided by the therapist for the current term; and thereafter whether the 45/30-minutes session should be provided by the therapist in person or by a teaching assistant monitored by the therapist.
15. I do not accept, given the very limited nature and extent of the Tribunal's disagreement with Ms Herman's report, that it had to go any further and explain why it thought that 30 rather than 45 minutes was appropriate or why, after the first term, the sessions could be conducted by an assistant supervised by the therapist as opposed to the therapist in person.
16. As to the first of those matters, there is no suggestion of any mathematical precision in Ms Herman's 45 minutes. There is, for example, no explanation as to why 45 minutes would achieve a particular objective which 30 minutes would not achieve. The duration of the weekly session was very much a matter of professional judgment and the Tribunal was perfectly entitled to say to the claimant, "Your expert asked for 45 minutes but we think that 30 minutes' duration is sufficient". The same applies to the disagreement as to whether, in succeeding terms, the session should be conducted by the therapist in person or by an assistant monitored by the therapist. One has to approach these matters with a degree of common sense. Plainly, if the assistant noticed that there were difficulties, if he or she was being monitored by the therapist, then no doubt the therapist would be alerted to the problems and further steps could be taken.
17. Moving on to ground (2), the Tribunal made it clear that it disagreed with Ms Burgess. It also made clear the extent of its disagreement. In her report under the heading "Conclusions", Ms Burgess had set out in some detail the difficulties that A faced in her view. For example, she mentioned the fact that A was being assessed by an independent psychiatrist and that the question of prescribing Ritalin for a trial period was under discussion. The final paragraph of her conclusions said this:

"There is clearly interplay of the causative factors in relation to [A's] difficulty in learning, but it is difficult to state specifically which is the best way to begin his support. A full statutory assessment is required, and the recommendations from that will need to include the fact that a key worker will be required to ensure that all agencies work together in developing a language, learning, and behaviour support programme for [A]."

18. Under learning needs she said that she was only outlining "the broad areas of need for [A] as there is insufficient information to make a detailed proposal".
19. It is clear from paragraph C of the Tribunal's decision that it had regard to Ms Burgess's recommendations. Indeed, it plainly considered her conclusions with some care. There is, for example, the specific reference to the ongoing psychiatric assessment in relation to ADHD and the possible prescription of Ritalin. Equally it is plain that, save for the final conclusion -- namely that a full statutory assessment is required -- the Tribunal did not disagree with Ms Burgess' other conclusions. Thus the Tribunal says.

"We do not agree with her conclusion as to the need for a statutory assessment. In spite of the range of [A's] difficulties, as detailed in the conclusion of Ms Burgess' report ..." (Emphasis added).

20. The Tribunal then went on to explain why it did not accept that final conclusion:

"We consider that the school is still able to co-ordinate and make appropriate provision for [A] from within their own resources and that LEA involvement is not necessary. We find that the school are making appropriate provision for [A]."

21. Thus the Tribunal set out clearly the extent of the disagreement and why it disagreed with Ms Burgess. It is submitted by Ms Peter that, in so doing, the Tribunal had misunderstood Ms Burgess' report. Ms Burgess had been unable to reach a concluded view because she considered that there was insufficient information, in particular from the school. Hence any conclusions she had expressed could only be provisional and therefore an assessment was required.
22. It is plain that the Tribunal did not misunderstand that aspect of the case being put forward by the claimant. It identified his three concerns in paragraph 5 of its decision:

"Firstly, he considers that the school is not fully aware of [A's] needs and therefore cannot judge the extent of appropriate provision."

23. Moreover, having explained that while it did not accept Ms Burgess' conclusion that there was a need for a statutory assessment, the Tribunal went on in paragraph D, which I have set out above, to express its concern about the "lack of constructive and helpful contact" between the appellant and the school, and expressed the hope that ways would be found of sharing relevant information. Thus the Tribunal was well aware of the fact that the appellant was arguing that insufficient information had been received from the school.
24. It was not of course for Ms Burgess to decide whether or not a statutory assessment was necessary. That was a matter for the Tribunal to decide. The Tribunal was fully entitled to say in effect that it agreed with all of the other conclusions as to A's difficulties that Ms Burgess had identified, but it did not accept that those difficulties led to a need for an assessment, because it concluded that the school was able to co-ordinate and make appropriate provision for A. In so concluding it is clear that the Tribunal had the test in paragraph 7.34 of the Code of Practice well in mind: was the school "taking relevant and purposeful action to meet the child's learning difficulties"? The claimant disagrees with the Tribunal's conclusion, but that does not make the Tribunal's conclusion perverse.
25. I turn therefore to the final ground of appeal. I deal with it quite shortly because here the appellant sets up an Aunt Sally by putting words into the Tribunal's mouth. The Tribunal did not state that "appropriate progress" overall was being made simply on the basis of the SAT assessments and scores. The Tribunal considered that those assessments and scores "indicated appropriate progress in relation to [A's] literacy and numeracy needs". Those needs were of course an important part of the overall picture, but they were not the whole picture. Hence the Tribunal's discussion of other factors in paragraphs B and C of its decision. The Tribunal was concerned about what it described as "patchy" speech and language provision in 2003/2004, but went on to explain why it was satisfied that that deficiency in provision would be remedied. In paragraph C the Tribunal clearly considered the wider range of difficulties that had been identified by Ms Burgess in her report, but nevertheless concluded, for the reasons set out in that paragraph, that those difficulties did not result in a need for a statutory assessment.
26. As I understood the appellant's case, it was not submitted that no reasonable Tribunal could have concluded on the basis of the SAT tests that appropriate progress in relation to A's literacy and numeracy needs was indicated. It was submitted that A's needs were complex and that "the picture shown by the SAT scores would at best be a partial one". The submission wrongly assumes that the Tribunal treated the SAT results as the entire answer to the question whether A was making appropriate progress and whether the school was making appropriate provision. If one reads the decision as a whole, it is plain that the Tribunal did not fall into that error.
27. For those reasons, this appeal must be dismissed.
28. MR OLDHAM: My Lord, I am grateful. My Lord, the appellant is legally aided, so I would seek a costs order merely in these terms. We have our costs but there be no enforcement without the court's permission.
29. MR JUSTICE SULLIVAN: Can you resist that, Ms Peter?
30. MS PETER : I cannot resist that, my Lord. I would also ask that the appellant's costs be assessed for the Community Legal Services provision.
31. MR JUSTICE SULLIVAN: You can both have the orders that you seek. There will be an assessment for Community Legal Services purposes and the appellant will pay the -- let us get it right -- the first respondent's costs, to be assessed if not agreed, but those costs are not to be enforced without leave of the court.