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
		10th May 2006

1. MR JUSTICE HOLMAN: This is an appeal by a mother brought pursuant to section 11 of the Tribunals and Inquiries Act 1992 from the decision of a Special Educational Needs and Disability Tribunal (which I will call "the Tribunal") given on 23rd November 2005, after a hearing which took place over the course of one day on 9th November 2005. So far as the present hearing is concerned, I record that it was given an estimated length of one day and I am now beginning this ex tempore judgment at ten to four on the day of the hearing.
2. The case and the appeal concerns a boy, B, who was born on 4th February 1995 and so is now aged 11. At the time of the hearing before the Tribunal he was of course ten. It is not in dispute and is fundamental to this case that B suffers very severe Asperger's Syndrome and also Attention Deficit Hyperactivity Disorder (ADHD). In summary, those disorders have the effect that he clearly has special educational needs and also displays numerous difficulties of behaviour and social interaction in many settings, including his home. It seems to me, on my reading of this case, that his mother, supported by her partner, Mr E, have been nothing short of saintly in the love, care and upbringing that they have given, and endeavour to give, to B.
3. Since 2003 B has attended Littlegreen School. This is essentially a day school, although it is possible for pupils to stay overnight up to about two nights a week. It is relatively near to and convenient to B's mother's home. Littlegreen is a special school which expressly caters for children with Emotional, Social and Behavioural Difficulties, ie ESBD. It has a relatively small number of pupils and makes plain that, within the total number of pupils there, there is a significant number, although a minority, who are autistic. During 2004, the mother increasingly felt that B needed to attend a more specialist school and, in particular, a residential school where he could remain for the greater part of the year (I think 38 weeks a year in the case of the school which she proposes) and where a consistent structure would be provided for his education and daily routine throughout what are described as the waking hours. She identified and put forward a particular school in Boldre, near Lymington in Hampshire, called Southlands School.
4. The Local Education Authority, West Sussex Council, who are the effective respondents to this appeal, clearly did some investigation into Southlands. It is not at all disputed or in issue that Southlands is a school which may be, indeed is, very well suited to the overall needs of B. However, there is a huge cost differential between the two schools. Littlegreen is a day school and, being in the area of the West Sussex County Council, is pre-funded by them so that there is no notional extra cost to the Local Education Authority of B attending that school. The fees, however, if we were to attend Southlands School, are around £106,000 per annum plus transport costs between Sussex and Lymington of about £2,900 per annum. So the aggregate additional cost to the Local Education Authority if B were to attend Southlands School is little if any short of £110,000 per annum. The Local Authority considered the position, but decided that a residential school was not necessary or justified in the case of B and they refused to make provision for a residential school, whether generally or Southlands specifically, in a Statement of Educational Needs which they prepared.
5. The mother accordingly appealed, as was her right, to the Tribunal under the provisions of section 326 of the Education Act 1996. Her appeal from the decision of the Tribunal to this court is also brought as of right and without the need for any prior permission. It is essential to make plain at the outset, however, that the appeal to this court only lies on a point of law. It is, I think, also important to make plain at the outset of the present judgment, as is common ground between both advocates today, who are obviously each specialist in this field, that the task of a Local Education Authority, when preparing a statement of special needs, and also of a tribunal when hearing an appeal from such a statement, is limited to deciding what is adequate or appropriate to meet the educational needs of the child in question, and not identifying what might be optimum or ideal provision of such needs. As I have already said, there is no real dispute in this case but that Southlands, at a cost of £110,000 per annum, might be very well suited to the overall needs of B: but the more limited question in point is whether the education currently provided and in the future to be provided at Littlegreen is adequate.
6. The overall conclusion of the Tribunal, in a paragraph numbered 11 of their decision and reasons, now at bundle page 359 was that:

"...we concluded that Littlegreen School could offer appropriate provision for B at the present time ... we did not conclude that B requires a residential education or an extended day curriculum. It would therefore be over provision for him to receive this. In view of the difference in costs to the LEA, it would therefore be an unreasonable use of public expenditure for B to attend Southlands School when appropriate provision could be made at Littlegreen School at considerably less expense."

7. Essentially, the mother has been finding B increasingly difficult to manage within the home and elsewhere outside the school environment and, taking a broad overall view of the educational and developmental needs of her son, she feels, as I have said, that a setting such as Southlands is now required.
8. It is accordingly apparent that this case traverses what is now well trodden ground in this field. Clearly a case such is this raises the question where is any boundary between the "educational" needs and other vital needs of a child to be drawn. This was addressed by the Court of Appeal in London Borough of Bromley v Special Educational Needs Tribunal and others [1999] ELR 260 in a passage which has clearly since become classic. Beginning on page 295, Sedley LJ, with whom the other members of the Court of Appeal agreed, said this:

"Special educational provision is, in principle, whatever is called for by a child's learning difficulty. A learning difficulty is anything inherent in the child which makes learning significantly harder for him than for most others or which hinders him from making use of ordinary school facilities. What is special about special educational provision is that it is additional to or different from ordinary educational provision (see section 312(4)). So far the meaning is open ended. It is when it comes to the statement under section 324 that the LEA is required to distinguish between special educational provision and non-educational provision; and the prescribed form is divided up accordingly. Two possibilities arise here: either the two categories share a common frontier, so that where the one stops the other begins; or there is between the unequivocally educational and the unequivocally non-educational a shared territory of provision which can be intelligibly allocated to either. It seems to me that to adopt the first approach would be to read into the legislation a sharp dichotomy for which Parliament could easily have made express provision had it wished to do so, but which finds no expression or reflection where one would expect to find it, namely in section 312. Moreover, to interpose a hard edge or a common frontier does not get rid of definitional problems: it simply makes them more acute. And this is one of the reasons why, in my judgment, the second approach is the one to be attributed to Parliament. The potentially large intermediate area of provision which is capable of ranking as educational or non-educational is not made the subject of any statutory prescription precisely because it is for the local education authority, and if necessary the SENT, to exercise a case-by-case judgment which no prescriptive legislation could ever hope to anticipate..."

9. A little later Sedley LJ said, and this is very important to the present appeal:

"Whether a form of help needed by the child falls within this description [vis special educational provision] is a question primarily for the LEA and secondarily for the SENT's expert judgment. If, but only if, the SENT has gone wrong in law will the High Court overset its judgment.

10. Those passages find clear echoes in a later case of W v Leeds City Council and the Special Educational Needs and Disability Tribunal [2005] EWCA Civ 988, reported at [2005] ELR 617. At paragraph 37 Judge LJ said:

"Consistent with the relevant statutory provision, part 3 of the statement must make provision for the educational needs specified in part 2: no more, no less. Provision is not required to be made in part 3 for matters of background and comment, nor even for needs which in the judgment of the tribunal do not amount to educational needs."

Judge LJ then referred to an authority of R (Tottman) v Hertfordshire County Council [2003] EWHC 1725 (Admin); [2003] ELR 763, a decision of Moses J. It appears from what Judge LJ went on to say, that there was at any rate an application to the Court of Appeal for permission to appeal in that case, if not a substantive appeal, although neither counsel here today are aware of any report of any consideration of Tottman within the Court of Appeal. Summarising the outcome of that case Judge LJ said:

"The parents appealed against the decision of the tribunal, arguing that it was wrong in law because it failed to identify provision for out of school hours during the waking day, both before and after school, when it had or should have accepted that there was a need for such provision. Moses J decided that the tribunal had not concluded that special education should be provided throughout the waking day. It was therefore not necessary to specify the means for meeting an educational need which was not established. In short, although the tribunal accepted that the child needed consistency of approach both when he was at school, and at home, or when receiving respite care, or in other words consistency of approach all round, that did not amount to an educational need for residential education. The Court of Appeal concluded that there was no error of law by the tribunal, and that Moses J was right to dismiss the appeal by the parents. In effect, the tribunal as an expert body reached conclusions with which the court should not interfere."

In the same case, at paragraphs 50 and 51, Wall LJ said this:

"Because of his condition, C is manifestly a child with multiple needs who poses enormous challenges for those who have to attempt to care for him and provide him with education. Such a child's special educational needs simply cannot be viewed in isolation; nor can his s 17 [vis a reference to section 17 of the Children Act 1999] needs; nor for that matter can his need for services provided by the health authority and CAMHS. A holistic approach is necessary, and inter-agency co-operation essential, particularly since two of the bodies with statutory responsibilities for C (the LEA and social services department) are part of the same local authority."

11. Thus Wall LJ recognised, as indeed do I in the present case, the very considerable importance of viewing the needs of that child and this child as a whole and as a human being whose own life is not neatly divisible into separate compartments. But Wall LJ continued with the following important words:

"At the same time of course, the tribunal is a creature of statute, and its powers are limited to the areas of responsibility given to it by the Education Act 1996 and the consequential regulations ... In a case such as the present the tribunal, in my judgment, had to tread a delicate line between properly informing itself of the 'full picture' relating to C, and limiting its decision to a careful assessment of C's special educational needs within that full picture. In my judgment, this is what the tribunal conscientiously attempted to do; and accordingly, unless it has committed an error of law in that process, it is not the function of either the Administrative Court, or of this court, to interfere."

I have those passages and those authorities very firmly in mind throughout my consideration of this case.

12. Before leaving the law, it is convenient next to refer to the legal framework with regard to the actual reasons and reasoning of a special educational needs tribunal. They are, as has been said, creatures of statute and operate under regulations made pursuant to statute. Regulation 36(2) of the Special Education Needs Tribunal Regulations 2001 SI 2001/600 makes provision as to the giving of reasons. It provides as follows:

"The decision of the tribunal ... shall be recorded forthwith in a document which ... shall also contain, or have annexed to it, a statement of the reasons (in summary form) for the tribunal's decision..."

It seems to me important in my overall consideration of this case to bear in mind that what is required by the regulation is a statement of reasons in summary form, and not necessarily a very lengthy and exhaustive analysis of every aspect of the evidence in a case and every point which has been made. It is clear that there has been a body of authorities from the courts as to what is required within the reasons. My attention had been drawn to the judgment of Beatson J in R(L) v Waltham Forest and another [2003] EWHC 2907 (Admin); [2004] ELR 161. At paragraph 13, he said:

"I turn to the law. There is a burgeoning line of cases on the duty of special educational needs tribunals to give reasons. The statutory requirement is that reasons be given in summary form."

He then refers to a considerable number of reported decisions in which he says the principles have been set out and elaborated and, as I understand it, it is really common ground between counsel today that what Beatson J then said at paragraph 14 fairly and accurately summarises the thrust and effect of all those decisions. He 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 ... Grigson J 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 ... Thirdly, mere recitation of evidence is no substitute for giving reasons ... 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."

It is, I think, important at this stage in regard to the second of those points or principles that I emphasise the sentence "in certain circumstances it may be required to say why it rejects" expert evidence. The use of the word "may" in that sentence seems to me to indicate that it is not necessarily requisite that a specialist tribunal such as this, precisely because it is bringing its own expertise to bear, has to give detailed reasons for preferring its own expertise over some expert evidence that has been placed before it.

13. With that summary of the applicable law, I now return to the facts of the present case and the reasoning of the Tribunal. On behalf of the Local Education Authority, there was a considerable body of written evidence from Littlegreen School and other sources to the effect that B is in fact appropriately placed in that school; does behave and function appropriately in that school, bearing in mind the specialist nature of the school; and has made and continues to make progress in class and with what I will loosely call academic and similar topics. There was indeed a very full and detailed report from Littlegreen about B and what that school offers for him, which begins at page 8 of the present supplementary bundle. In addition, the headmaster of that school, Mr T Salt, attended and gave oral evidence before the Tribunal. So it seems to me that there is really little doubt in this case that the local authority presented sufficient and adequate evidence in support of their contention that Littlegreen is a school that adequately meets the special educational needs of B.
14. On the mother's side, however, important evidence was prepared challenging that proposition. In particular, she obtained expert evidence specifically for the purpose of the case and hearing before the Tribunal from a consultant child and adolescent psychiatrist, Dr R Soppitt, and a chartered educational psychologist, Ruth Birnbaum. Dr Soppitt met B and his mother and clearly informed himself very considerably as to B's history and needs. His report, dated 20th May 2005, is full and detailed. It includes the following key passages. First, at paragraph 3.2 on bundle page 92:

"B has a clear autistic spectrum disorder and satisfies ICD 10 criteria ... and Gillberg's criteria for Asperger's Syndrome ... due to his concrete and pseudo-adult speech, egocentricity, narrow interest patterns and lack of second order theory of mind skills and some deficit to extrapolate beyond his own experience. His intellectual ability means that he has developed some emotional vocabulary..."

"B has a concerning mix of [Autistic Spectrum Disorder] and ADHD with emergent conduct disorder, involving the narrowly avoided possibility of using weapons against neighbours and regularly attacking members of his family..."

At paragraph 3.5 he said:

"The risks for B facing transition to secondary school with his profile of difficulties are high for increasing mental health problems, continued social alienation and aggression. He is disabled by his poor planning ability, his difficulties in integrating socially and his obvious difference from his peers."

At paragraph 3.8 he said:

"B also has serious oppositional and defiant behaviours in many environments. This is probably secondary to increased anxiety and frustration at not being able to express himself and when people infringe on his egocentric world. However, he may have the capacity to reflect and discuss when not feeling threatened which would allow him to work effectively within a whole-school approach such as Southlands can offer."

At paragraph 3.17 he said:

"B's anxiety levels and oppositional behaviour are to be linked with the pressures from school and well relate directly to B's need for strict predicability and routine, his need to control his environment to reduce anxiety and his difficulties making sense of the world around him."

At paragraph 3.21 he said:

"Even with excellent support at Key Stage 2, transfer to secondary school is a major issue and risk factor for school failure; this is the point when many Autistic children fail to transfer successfully to a secondary setting and cease to attend."

At paragraph 3.37 he said:

"To impact on B's social and communication skills difficulties, he requires an ASD specific social skills training programme embedded within the curriculum and reinforced throughout his waking day."

At paragraph 3.39:

"Behavioural difficulties in the home environment and emergent in school that are presenting in B are likely to worsen in later life, especially during secondary school, without appropriate intervention and educational provision now. This is particularly a risk around the second decade of life due to B and his peer group's awareness of his differences..."

At paragraph 3.41, echoing what he had said at paragraph 3.37 about the need to reinforce skills "throughout his waking day", Dr Soppitt said:

"I would recommend a placement at Southlands School."

At Paragraph 3.43, Dr Soppitt said:

"B is currently placed in an EBD provision [viz Littlegreen]. Such provisions are contraindicated in children with B's range of difficulties that is a primary autistic spectrum disorder underlying the behavioural problems. Without a proper and tested intervention through a special school of the calibre of Southlands, it is only a matter of time before his conduct disorder generates even greater risks to B and those around him... "

"... EBD schools are inappropriate for children with AS..."

15. There was thus there a clear expression of opinion from Dr Soppitt not only that Southlands is a school that would best meet the overall needs, viewed as a whole, of B; but also that Littlegreen, being a school designed for EBD (or now ESBD) children is "contraindicated" and "inappropriate" for a child such as B. It is important to mention that, at paragraph 3.42, Dr Soppitt had said that he would attempt to extend his assessment of B by observing him within the school context at Littlegreen School and liaising with his class teacher. In the event, he never did this. There is some dispute today, which I do not have any means of resolving, as to whether that was because he was prevented from attending Littlegreen School or did not sufficiently persist in the endeavour to do so.
16. So far as Ruth Birnbaum is concerned, her report, based on seeing B on 31st May 2005, gave a detailed psychological assessment and profile and concluded on internal page 17, now bundle page 10-20.

"B is a complex little boy who has difficulties spanning a number of areas. It is understandable that his behavioural problems emerged as a primary need during attendance at a mainstream school. In many ways, perhaps this camouflaged some of his more pressing difficulties such as his learning needs and communication problems associated with Asperger's as well as literacy and numeracy. These have now become his primary needs to be addressed within school."

Then under a heading "Special Educational Provision" at internal page 19, bundle page 122 she said:

"It has been shown that B can respond to very firm structure and routine at his current school. That structure needs to be now carried throughout his waking day so he has the opportunity to transfer what he has learned during the school day to different environments. At the moment, all the learning that is taking place gets lost when he leaves school as part of his Asperger's Syndrome problem is his lack of generalisation. Thus every new experience needs to be taught from the beginning. This is not the way to proceed and B would do much better if he could attend a school where there was a waking day curriculum, where he could be taught the appropriate strategies to deal with his behavioural difficulties and manage his own anxiety, in all different environments.

"I am familiar with Southlands School and certainly feel that this could meet his needs but would add that B will need additional multi sensory teaching in literacy and numeracy by a teacher who is qualified in specific learning difficulties."

Overall, that comment by Ms Birnbaum is clearly a recommendation that B would do better if he attended a residential school, where he could have a consistent routine and structure "throughout his working day".

17. The final piece of expert evidence upon which the mother relied was a report from Dr Quentin Spender. He is a consultant child and adolescent psychiatrist. He is in a different category and position from Dr Soppitt and Ms Birnbaum in that Dr Spender has treated and cared for B for an appreciable period of time and thus knows him and his history. His report of 20th September 2005 takes the form of a commentary upon the report which I have already quoted of Dr Soppitt, which Dr Spender described as "superb". He said that Dr Soppitt had "taken B's psychiatric assessment much further than I was able to take it myself" and that "Dr Soppitt knows far more about educational provision for children with autistic spectrum disorders than I do". Speaking of B, Dr Spender said:

"B's Asperger's Syndrome is very severe. By this I mean that both his obsessionality and his difficulty with social relationships are very marked, have always been significant, and are becoming more of a problem as he gets older. The consequences are also more severe than in other children with Asperger's, for instance in terms of the types of anti-social behaviour that B demonstrates, and his resistance to the normal methods of behavioural control that would work for children without a diagnosis of Asperger's."

He then commented, tragically, on the fact that the youth offending team have endeavoured to be involved with B because it appears that he is beginning to demonstrate activity which is criminal in character, such as throwing stones and stealing from other children. He then says:

"Littlegreen is a school for children with emotional and behavioural disorders, rather than being designated as a school for Asperger's Disorder. There are a number of children with Asperger's Disorder at Littlegreen (I know because they are my patients). Generally, they do well there. B is superficially doing well at Littlegreen while he is in school, but he is not doing well in other areas of his life (at home or with peers or with adults who are strangers)."

Dr Spender then says:

"I am afraid I am not an expert on the education of individuals with Autistic Spectrum Disorder, and cannot pretend to have as much background understanding and reading as Dr Soppitt displays."

However, drawing on his clinical experience, he says:

"I agree with Dr Soppitt that B is at high risk of developing depression in adolescence, in addition to conduct disorder and delinquency...

"B may superficially appear to have his educational needs met within the school environment. If educational needs are conceived in a narrow sense, then this might be considered true, in that B is probably making as much progress in his academic work as his intellectual potential would allow. However, if education is conceived of in a broad sense, B is not making sufficient progress in and social and behavioural spheres, and in fact the problems within both these areas in his life are continuing to worsen."

It seems to me that, in that passage, Dr Spender in fact highlights and echoes what is discussed in the cases of London Borough Bromley and also of W v Leeds City Council as to the difficulty of determining in any given case where a line should be drawn between the educational and non-educational needs of the child in question. As to B, Dr Spender said:

"It seems to me that there is a strong argument in B's case for an educational environment that meets his needs in these areas -- educational needs in a broad sense. Because of the extremity of B's Autistic Spectrum Disorder, B is likely to need an educational environment that is specifically geared to the needs of children with Autistic Spectrum Disorder, rather than merely catering to these needs in the context of an environment adapted for children with emotional and behavioural difficulties."

18. Finally, at the very end of his letter or report, Dr Spender said, importantly:

"I agree with Dr Soppitt's view ... that B is likely to develop more pervasive and entrenched conduct disorder if his current educational and social circumstances remain unchanged.

"There remains the question of a boarding school environment, which Dr Soppitt does not appear to address directly. The impact of a boarding school environment depends on the temperament and age of the child. Many children of B's age could find a boarding school environment emotionally traumatic, in that they might suffer from being separated from their families, and not experience the same extent of emotional support in the boarding school environment. However, in B's case, he is not able to be emotionally in tune with other adults or children, so the benefits of remaining in a family environment may be outweighed by other considerations. These include for instance B's need for a very predictable structure to his life involving plentiful routine and repetition; clear limits to his behaviour that are reinforced in the same way his whole waking day. In addition, B increasingly finds relationships within his home problematic, in that he is already starting to physically chastise his sister and mother."

He continues by saying, and the precise words used must, in my view, be carefully noted:

"Therefore, it seems likely in my view that the advantages of an appropriately designed boarding environment could outweigh the disadvantages in B's case so that such an environment should be seriously considered."

19. It seems to me that those words are carefully weighed and, to a degree, guarded. Dr Spender says no more than than that the advantages of a boarding environment "could" outweigh the disadvantages and that such an environment "should be seriously considered". Dr Spender's letter and report does not amount to a firm and positive statement of opinion that B definitely needs, as his minimum adequate educational need, placement in a boarding environment.
20. I turn now to the decision and approach of the Tribunal. At the hearing, the two witnesses who gave oral evidence on behalf of the mother were Ms Birnbaum and also the deputy headteacher of Southlands School. I have been informed that regulations ordinarily limit the number of witness who may give oral evidence at a hearing before a tribunal to two on each side. So the mother and her advisers clearly had to make a decision as to who actually to call to give oral evidence from the various people who had prepared written reports or evidence on her behalf. It does seem to me, in some ways, regrettable that neither Dr Soppitt nor Dr Spender were available to give oral evidence at the hearing; but in the end that is the product of a decision taken by the mother and her advisers within the framework of the regulations.
21. Within their reasons, the Tribunal summarised the background facts and clearly identified that a, if not the, key issue in the case was whether B should continue to remain at Littlegreen or attend Southlands. And they said at paragraph 2, now at bundle page 349, the mother's:

"... preferred school for B was Southlands School, an independent special school for children with Asperger's Syndrome approved by the Secretary of State. Ms H wanted B to attend the school as a 38 week residential pupil. A place is available at the school for B."

Then, accurately recording the position of the LEA, they said:

"The LEA acknowledged that appropriate educational provision could be made for B at this school but that it would be an unreasonable use of public expenditure for B to attend Southlands School when appropriate provision could be made at considerably less expense by his attendance at Littlegreen school."

They described at some length the history and difficulties that B suffers and experiences at paragraphs number 5,6 and 7 under heading Part 3, now bundle 352. They, albeit briefly, summarise the thrust of what each of Ms Birnbaum, Dr Soppitt and Dr Spender had reported.

22. At paragraph 13 on page 353 they summarise the argument of Ms Hay, who appeared then as now on behalf of the mother, thus:

"Ms Hay argued that provision to meet B's difficulties outside of the school day required educational provision ... Mrs Birnbaum argued that education should look at the whole child. Once structure is removed, B cannot cope with everyday life. His life is fragmented for him and he cannot apply strategies and different structures which is part of nature of Asperger's Syndrome."

That does encapsulate, in a very few sentences, the essential contention of the mother in this case.

23. The nub of the reasons and reasoning of the Tribunal is contained under a heading "Special Educational Provision" now at bundle pages 356 and 357. It seems to me important that I incorporate the whole of the relevant passage in this judgment:

"1. Paragraph 1 -- we agreed with the LEA that reference should be made to emotional and behavioural problems and social communication difficulties. In view of the difficulties that B encountered at his previous school, it is important that the curriculum addresses behavioural problems. The summary of special educational needs in Part 2 included behaviour. The curriculum should therefore take account of these difficulties. However, it does not appear as if these manifest themselves at B's present school.

"2. Paragraph 3 -- We did not conclude that B should necessarily be educated in a school specialising in the education of pupils with autistic spectrum disorder. It is important that B receives a curriculum designed to address his individual difficulties. However, he does appear to be making some progress at his present school. 39% of pupils at the school have Asperger's Syndrome. The school reports are favourable and B is acknowledged as a popular student who is involved in the school and with his work. He is able to socially interact with his present peers. Progress, although limited, has been made in the relatively short time that B has attended Littlegreen School. We were therefore not persuaded that there is a necessity for him to attend a school that solely specialises in the education of pupils with ASD.

"3. Paragraph 4 -- we agreed that Part 3 should refer to an environment that has a high staff to pupil ratio and small classes. However, we were not persuaded that B necessarily requires a sustained or a 24-hour curriculum. We were not persuaded that there is a necessity of the continuation of an educational programme to address B's special educational needs as stated in the amended Part 2. We noted the definition of education as contained in the decision of London Borough of Bromley v SENDIST. However, we noted the level of functioning of the child in that particular case and did not conclude that the management of B's behaviour at home should be considered as an educational need, when his behaviour is not presenting any problems during the school day. Although there may be some benefit for a consistency of approach between the home and school environment to be encouraged, we were not persuaded that there is an educational reason for the education programmes to extend beyond the school day. Although the school had recognised that home/school links should be improved, we did not regard this admission as amounting to a statement that the education programmes should extent into the home environment. The existing statement made provision for a consistent whole school approach. It also mentioned that the school should continue to work in partnership with home, Social and Caring services and the Child and Family Services for Mental Health (CAMHS) to provide a consistent approach to his difficulties. The LEA had therefore acknowledged the benefits of a consistent approach. However, we were not persuaded that there is a necessity for the continuation of educational programmes beyond the school day. We noted the number of legal authorities on this. In particular, we noted the case of R (Tottman) v Hertfordshire County Council, when the Tribunal rejected the view that programmes of special education should be provided throughout the waking day. However, it found that consistency was required. We also noted that case of W v Leeds City Council and SENDIST 2004 where the need for a waking day curriculum was also rejected.

"4. In making the above decision, we noted that B appears settled in school and is making some progress. His major difficulty appears to be his behaviour at home. We noted the evidence of Dr Soppitt and Dr Spender regarding this. However, both had given their medical opinion regarding the need for provision. It is for the Tribunal to be persuaded that there is an educational need for provision beyond the school day. We were not so persuaded. Dr Soppitt had carried out only one assessment and had not observed B in school. Regarding the evidence from Mrs Birnbaum, we did not agree with her conclusions that B requires an extended day curriculum or a residential education. This present school is able to address special educational needs for many children with Asperger's Syndrome, a fact acknowledged by Dr Spender. Although we could not disagree with the findings of Mrs Birnbaum, we did not agree with her conclusions that educational provision is necessary to provide proper liaison and some consistency across environments. We did agree with the LEA that there is a need for consistency of approach.

"5. Having agreed that there is a need for liaison and consistency of approach, as contained in the present statement, we were not persuaded that any more particular or specific provision in relation to this should be made. We noted that decision made regarding this point in R (Tottman) v Hertfordshire County Council. We did not agree that the case should be adjourned for further details to be obtained of Social Services provision, as argued by Ms Hay. We were content that the present provision in Part 3 of the statement, that the school should continue to work in partnership with home, Social Services and CAMHS, is sufficient. We concluded that there was no obligation to specify what should be done outside the school day once we had concluded that B's special educational needs, as opposed to his other needs, could be met at a day special school. As stated, we did not feel that there is an educational need for any greater provision. B appears able to be learn in school and to access the curriculum that is provided to him."

24. It is within the above passage that Ms Hay submits there are errors of law. In essence, she identifies two. First, she says that within paragraph numbered 3, although the Tribunal made passing reference to the relevant authorities to which I have already referred on the topic of identifying the boundaries between educational and non-educational needs, they misunderstood or misapplied those authorities. She said that the following sentence in particular contains error:

"We noted the definition of education as contained in the decision of London Borough of Bromley v SENDIST. However, we noted the level of functioning of the child in that particular case and did not conclude that the management of B's behaviour at home should be considered as an educational need when his behaviour is not presenting any problems during the school day."

25. She submits that the educational need of B is not "the management of his behaviour at home" in contradistinction to his more conventional educational needs within school; but rather an educational need in its widest sense for B to have a firm, consistent and the same structure throughout the waking day. She further says that, in excluding "management of B's behaviour at home" from an overall appraisal of the educational needs of this child, the Tribunal were ignoring or overlooking the importance of "a holistic approach" as referred to in particular by Wall LJ in the passage I have quoted.
26. As well as making that alleged error, Ms Hay says that the reasoning of the Tribunal was inadequate in particular when dealing with the evidence of Dr Soppitt and Dr Spender and Ms Birnbaum. She stresses the point or principle number 2 in particular within the passage in the judgment of Beatson J, that whereas a specialist tribunal can use its expertise in deciding cases, "if it rejects expert evidence before it, it should say so specifically". She submits that in the paragraph numbered 4 the Tribunal simply do not give any reasons at all for their "rejection" of the evidence of Dr Soppitt and Dr Spender on the central issue of the need for residential education, or at any rate their reasons are not adequate. She says that when they say "it is for the Tribunal to be persuaded that there is an educational need for provision beyond the school day, we were not so persuaded" that is not the giving of a reason but simply the expressing of a conclusion. She says that, whilst it is, of course, correct that each of Dr Soppitt and Dr Spender are medical men and therefore giving a "medical opinion", it is not an adequate basis for rejecting or finessing away their opinion simply to say that it is a "medical opinion". She says, with force, that in a case such as this there is a very considerable overlap between the educational, behavioural, social and strictly medical needs of children such as B, and that experts such Dr Soppitt and Dr Spender, even though medical men, are well able to express valid views as to the educational needs of their patients or clients.
27. In relation to Ms Birnbaum's view, she says that when the Tribunal said, "although we cannot disagree with the findings of Ms Birnbaum, we did not agree with her conclusions that educational provision is necessary to provide proper liaison and some consistency across environments", that again merely expresses a conclusion and does not give reasons. Ms Hay submits, as of course she has to on an appeal which requires an error of law, that the manner in which the Tribunal dealt with that evidence is so defective as to amount to an error of law.
28. I have considered the submissions of Ms Hay and indeed this case with great anxiety and care. It is obvious from consideration of other authorities, such as, for instance, that of Tottman and the decision of Moses J, that the view and perspective of the High Court on an appeal such as this from a specialist tribunal such as this is one of delicacy and difficulty. Clearly, if there is a patent error of law there is no difficulty or problem: the appeal will be allowed. Clearly, if, for instance, this tribunal had simply failed to recall, refer to, or address at all the expert evidence that had been presented to it from Dr Soppitt or Dr Spender or Ms Birnbaum, there would be no difficulty at all. But it does not seem to me that there is any kind of patent error anywhere in the passages that I have quoted, nor did the Tribunal overlook or fail to deal with the expert evidence. I have to bear in mind what was said so clearly by Sedley LJ in the Bromley case:

"Whether a form of help needed by the child falls within this description [vis special educational provision] is a question primarily for the LEA and secondarily for the SENT's judgment."

and what was said by Wall LJ in the Leeds case:

"In my judgment this is what the Tribunal conscientiously attempted to do; and accordingly unless it has committed an error of law in that process, it is not the function of either the Administrative Court, or this court, to interfere."

29. It seems to me, viewing this case in the round, that this tribunal, first of all, did clearly act conscientiously; and secondly, did clearly have in the forefront of their mind, as well as all the evidence of the local authority, the evidence and reports of Dr Soppitt, Dr Spender and Ms Birnbaum. The obligation on them in the end was to state their reasons in summary form. It seems to me that they have, in the end, adequately given their reason for disagreeing with each of Dr Soppitt, Dr Spender and Ms Birnbaum, namely that someone -- and it was for them and not the doctors to do it -- had to identify where, on the facts of the case, the line needs to be drawn between educational and non-educational provision.
30. At the end of the day, although I have the utmost sympathy for the position of the mother and although I do not doubt that it might be best for B if he could attend Southlands and the funding be made available, I have not been persuaded that there is overall an error of law in the reasoning and approach of this Tribunal. It seems to me that their final conclusion, that B does not "require a residential education or an extended day curriculum" and that, accordingly, "it would be over provision for him to receive this" and "an unreasonable use of public expenditure" is one that was properly within their discretion and one which is sufficiently and appropriately reasoned by them.
31. Accordingly, this appeal must be dismissed.
32. Does any question arise in regard to costs or consequential matters?
33. MR GREATOREX: My Lord, there is an application for costs.
34. MR JUSTICE HOLMAN: Who is going to pay it?
35. MR GREATOREX: As usual, it is against the claimant my Lord. There is no public funding.
36. MR JUSTICE HOLMAN: Is there no public funding?
37. MR GREATOREX: No.
38. MR JUSTICE HOLMAN: Oh, dear. I mean -- what is the figure. I think I did see some document.
39. MR GREATOREX: Well, I must admit I have not paid a huge amount of attention to it.
40. MR JUSTICE HOLMAN: Well, I can assure you there is one and I have seen it.
41. MR GREATOREX: No, my Lord. I should get it now.
42. MR JUSTICE HOLMAN: I cannot just remember where it comes, that is all. It is here. £5,175. What is the financial situation of Ms H?
43. MR GREATOREX: I should only say one other thing in support to help and that is in respect of the schedule of costs served by the appellant in this was over twice as much.
44. MR JUSTICE HOLMAN: That does not have anything to do with it. You are only asking for your costs and you say they are £5,175 and the question is whether it is right to order the mother to pay them. The fact that she has anyway incurred a bill of £11,000 merely makes her situation all the tougher.
45. MR GREATOREX: I fully appreciate that. I was just anticipating, perhaps prematurely, that there was going to be objection to the amount of costs that was --
46. MR JUSTICE HOLMAN: I am surprised about that. Anyway the first matter is the principle of the thing.
47. MS HAY: I agree the amount is not particularly an issue, my Lord. The principle is in a sense that the hardship that this family would experience is not the kind of money that makes this anything other than an extremely expensive and difficult exercise for them already having gone through the Tribunal.
48. MR JUSTICE HOLMAN: What happens about the costs of the Tribunal process?
49. MS HAY: The costs of the Tribunal, in wholly exceptional circumstances, which is a phrase which crops up --
50. MR JUSTICE HOLMAN: Well, in this case, what happens?
51. MS HAY: Nothing. Then there is generally no order as to costs or no consideration of any costs --
52. MR JUSTICE HOLMAN: So she has had to bear all those?
53. MS HAY: My Lord, yes.
54. MR JUSTICE HOLMAN: The trouble is, is it not, I am afraid, a more hard, you could say ruthless approach is applied to appeals. Basically, if you appeal and you lose an appeal you have to pay the costs, unless you are protected by the fact that you are publicly funded.
55. MS HAY: My Lord, there is no public funding here.
56. MR JUSTICE HOLMAN: I do not see that I really can apply any different approach to that which would be applied on an appeal to the Court of Appeal. In the Court of Appeal, unless you are publicly funded, if you appeal and lose you pay. Time to pay and so on is another matter. I am terribly sorry. I am desperately sympathetic to your client but I am afraid she has lost and I think the normal rule must follow: she must pay. Do you wish to say anything about quantum?
57. MS HAY: No, there is no issue on quantum and I anticipated that would be the view your Lordship would come to in these circumstances and, clearly my client has been advised throughout about what the position is likely to be.
58. MR JUSTICE HOLMAN: I am terribly sorry. I could not be more sympathetic to Ms H but I think that is the rule, really. I am of course a Court Justice and I am afraid she will have to pay the costs.
59. Is there anything else that anybody wishes or needs to raise?
60. MR GREATOREX: Just in order to confirm, you will need the costs summarily assessed at £5,125.
61. MR JUSTICE HOLMAN: Correct. Anything else that anybody wishes or needs to raise? No, I am very, very sorry Ms H. Of course, it is nothing to do with what I might have decided if I had been the educational tribunal. What I have to decide is whether they made an error in law and, for the reasons I have endeavoured to give, in the end I have not been persuaded that they did. So my heart is with you completely, but my head has to go with the law.
62. Thank you all very much for you patience and attendance today.