QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF H||(CLAIMANT)|
|WEST SUSSEX COUNTY COUNCIL||(1st DEFENDANT)|
|ANTHONY DAVIS, CHAIR OF SENDIST||(2nd DEFENDANT)|
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(Official Shorthand Writers to the Court)
MR PAUL GREATOREX (instructed by West Sussex County Council Legal Department) appeared on behalf of the DEFENDANT
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"...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."
"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..."
"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.
"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  EWHC 1725 (Admin);  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."
"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.
"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  EWHC 2907 (Admin);  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.
"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..."
"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".
"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."
"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."
"... 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.
"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.
"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."
"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."
"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."