England and Wales High Court (Administrative Court) Decisions

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT

		Royal Courts of Justice, Strand, London WC2A 2LL
		10th July 2006.

General

1. This is an appeal by the parents of Evan against a decision of the Special Educational Needs and Disability Tribunal issued on 30 December 2005. E was born on 24 December 1994 and was thus 11 at the time of the decision.
2. The parents had appealed to the Tribunal against a Statement of Special Educational Needs ("the Statement") dated 17 December 2004 prepared by the First Respondents, Norfolk County Council. The Tribunal made various changes in the Statement. However, the central complaint of the parents, namely the proposed placement of E at Wicklewood Primary School, a mainstream school, rather than the Old Rectory School, Rettenham, was rejected by the Tribunal.
3. The family had previously lived in Swansea and moved to Wymondham in Norfolk. E held a Statement issued by Swansea. In Wales he had been attending Ffyone House School, a school in the independent sector with specialist provision for dyslexia. At that school he had made some progress.
4. The Norfolk Statement described Evan's special educational needs as relating "to his significant learning difficulties and emotional and behavioural difficulties". The Tribunal declined the parents' submission that that sentence should be deleted. The parties and the Tribunal agreed that the following should be inserted:

"Evan is very severely Dyslexic and has also been diagnosed as having inattentive ADHD and a severe and significant language disorder in both receptive and expressive language".

5. The proceedings took an unusual course. The Tribunal met on 20 June 2005, but it became apparent that there was insufficient time. The matter was to be resumed on 26 September, but one member of the Tribunal was ill. The hearing in fact resumed on 28 November, when the third panel member was still unavailable. Although the parents were initially reluctant to continue with the remaining two members, both parties did in fact agree to that course.
6. The unusual course of events does not form a ground of appeal.
7. The parents were represented by a solicitor. Their witnesses were Dr.Brian Male, a paediatric psychiatrist (who gave evidence on 20 June), Mrs. Katherine Sharkey, an educational psychologist (who gave evidence on 20 June), Mrs.Janet O'Keefe, a speech and language therapist (who gave evidence on 28 November) and Mrs.B.Page (another educational psychologist (who gave evidence on 28 November). Mrs.Page effectively took over from Mrs.O'Keefe, because the latter could not attend on 28 November. The Tribunal had written reports from these witnesses.
8. Norfolk were represented by Ms.V.Clarke. Their witnesses were Mr.B.Smith, senior educational psychologist, and Ms.J.Price, senior teacher at Wicklewood Primary School, who attended on both days.
9. The parties had helpfully prepared, as a working document, a revised draft of the original Statement, containing some agreed amendments to the original and indicating passages proposed by each of the parties. The draft was used by the Tribunal as the basis for its revision of the Statement.
10. In January 2006 Evan started to attend Wicklewood School. In February 2006, Norfolk issued a new Statement, allegedly in part to correct what the Tribunal had ordered in one respect. Subsequently Evan has ceased to attend. However, his attendance and subsequent ceasing to attend are not matters relevant to my decision, although they may have some bearing on any order relating to the future.
11. At the outset of the hearing I ordered that the parents should be referred to as EJ and IJ and that Evan be referred to as E. A reporter pointed out that this would cause the media great difficulty, because, mainly as a result of the parents' contacts with the local media, Evan's identity was already in the public domain. I said that I would reconsider my order before handing down my judgment. I have since received a letter dated 16 May from the Assistant Editor of the Eastern Daily Press, in which he asserts that the case is of significant public interest and reiterates that Evan's name is already firmly in the public domain. The existence of significant public interest, which I accept, does not necessarily mean that a child should be identified. However, while I have the usual reservations about the desirability of a child of 11 being named in the media in such circumstances as this, I have come to the conclusion that to continue the order in this case would achieve very little. I am minded, subject to any further submissions from the parties, to revoke my order.

The law

12. Subject to various provisions as to giving notice, section 323(3) of the Education Act 1996 requires a local educational authority to make an assessment of the educational needs of a child who falls within subsection (2), that is, 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".

13. In the light of such an assessment, if it is necessary to determine such provision, section 324(1) requires the authority to "make and maintain a statement of his special educational needs". The form of such a statement is prescribed by regulations made under subsection (2). Part 2 of the form sets out the needs and Part 3 the provision required. The type of school must be specified and in certain circumstances the name of the school: section 24(4) and Schedule 27.
14. A statement must be reviewed within 12 months: section 328(5).
15. A statement is required to be specific, detailed and quantified: see Code of Practice of Special Educational Needs, paragraphs 8.36 and 8.37 and the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001. In L v. Clarke and Somerset County Council [1998] ELR 129 at 137, Laws J., in a passage referred to with approval by the Court of Appeal in London Borough of Bromley v. Special Educational Needs Tribunal [1999] ELR 260 at 297, said:

"The real question, as it seems to me, in relation to any particular statement is whether it is so specific and so clear as to leave no room for doubt as to what has been decided is necessary in the individual case. Very often a specification of the number of hours per week will no doubt be necessary and there will be need for that to be done".

16. It is submitted by Mr.Friel on behalf of the parents that under section 324, the statement must determine the provision required, not provide for a further assessment. He also points out that section 326, which provides for the Tribunal's powers, gives the Tribunal no power to order a further assessment.
17. However, some flexibility may be appropriate. In E v. London Borough of Newham [2003] ELR 286 the Court of Appeal said in its judgement:

"63. … the countervailing arguments for allowing the degree of particularity to be determined in the context of this case rather than in the abstract are in our judgment overwhelming.

64. The following general considerations have weighed with us:

(i) At one extreme, a tribunal cannot delegate its statutory duty to some other person or body, however well-qualified. Equally, the statutory duty will not be discharged if the description of the special educational provision which is to be made is framed in terms so vague and uncertain that one cannot discern from it what (if anything) the tribunal has decided in that respect.

(ii) At the other extreme, the statutory duty plainly cannot extend to requiring a tribunal to 'specify' (in the sense of identify or particularise) every last detail of the special educational provision to be made (indeed Mr.Wolfe [counsel for the parents in the case] accepted that in an appropriate case a tribunal may lay down minimum requirement).

(iii) Between those two extremes, the degree of flexibility which is appropriate in 'specifying' the special educational provision to be made in any particular case is essentially a matter for the tribunal, taking into account all relevant factors. In some cases, a high degree of flexibility may be appropriate, in others not.

(iv) In the particular circumstances of the instant case the Tribunal was, in our judgment, fully entitled to conclude that the individual education plan referred to in part 3 of the statement be determined not by it but by the designated special school in conjunction with the therapists."

18. I note also what was said by the Court of Appeal in R. (on the application of IPSEA Ltd. v. Secretary of State for Education and Schools [2003] ELR 393 at paragraphs 14 to 17.
19. The statement will also be open to objection if it has the effect of depriving parents of their right of appeal against any amendment of the statement. An example was E v. Rotherham MBC [2001] EWHC Admin 432, where Bell J. decided that a statement had that effect where it said "Any change in the level [of] support will require a formal discussion between the LEA, the NHS Trust and one of both of [the] parents, but the above level of support is to remain at no less than the present level until June this year".
20. On the adequacy of reasons, I have been referred to a number of authorities, including R. (L) v. London Borough of Waltham Forest 2004 ELR 161, a decision of Beatson J., W v. Leeds [2005] EWCA Civ 988 and to J v. Staffordshire County Council [2005] EWHC 1664 (Admin). The Tribunal should not be expected to set out its reasons in more than summary form. What is necessary is that the aggrieved party should be able to identify the basis of the decision, reading the decision as a whole in a commonsense way.

The grounds of appeal to this court

21. The grounds of appeal are somewhat discursive, but can be summarised as follows:

(1) The Tribunal having ruled that written reports from Mrs.O'Keefe and Mrs.Sharkey should be admitted, failed to record that it had admitted those reports and failed to consider those reports and to make any appropriate finding on the evidence of Mrs.Sharkey.

(2) The Tribunal failed to make reference to the written and oral evidence of Mrs.Page.

(3) The Tribunal failed to make any appropriate finding in relation to the evidence of Dr.Male.

(4) The Tribunal orally ruled that certain anonymised individual education plans for pupils at the Old Rectory School should not be admitted, but in fact recorded that it had admitted those documents.

(5) The Tribunal wholly misunderstood the parents' case on the issue of autistic spectrum disorder and restored a provision relating to that condition.

(6) The Tribunal failed to make findings on the parents' case that the provision proposed had previously failed to work.

(7) The Tribunal approved Norfolk's proposals which were not specific and which allowed the Statement in effect to be amended, thus denying the parents a right of appeal.

22. I can deal shortly with (4). It is correct that the Tribunal orally ruled against admitting the documents, but recorded their admission in its Decision. The adjournment may have played a part in this error. However, the Tribunal does not appear to have relied on the documents. It decided that a mainstream school would meet E's needs and did not consider any advantages of the Old Rectory School.
23. I can also deal shortly with (5). There had been a time when the parents had suggested that there might be Asperger's Syndrome and autism, but that was not their case to the Tribunal. The Tribunal wrongly stated that the mother took the view that Evan might be experiencing an Autistic Spectrum Disorder. However, the Tribunal stated that a reference to that in his statement served no useful purpose, a proposition that was in fact common ground, and deleted references in Part 2 to both Autistic Spectrum Disorder and to Asperger's Syndrome. Unfortunately, in Part 3, they retained in the Statement references to support by a member of staff with training in the needs of pupils with Asperger's Syndrome and to consultation with the Norfolk Autistic Spectrum Disorder Team. However, although the Tribunal was in error in its reference to the parents' case and in retaining the passage in Part 3, its primary conclusion in Part 2 is agreed to be correct. I see no evidence that the errors affected its other conclusions. The error in Part 3 is likely to have arisen in the complicated redrafting process. It could be dealt with by ordering a deletion of the passage. Norfolk have in fact omitted the passage in the new statement.
24. In considering the Decision of the Tribunal, I ignore those parts of the evidence filed in this court that seek to interpret the Decision.

(1) to (3) and (6) The evidence relied on by the parents

25. These grounds can be considered together. It is correct that the Tribunal did not in its Decision record that it had admitted the reports of Mrs.O'Keefe and Mrs.Sharkey. However, that omission would in itself not be significant unless the Tribunal failed to consider the evidence (including the reports) of the parents' witnesses.
26. The Decision refers to the four witnesses, their area of expertise and the dates on which they attended. The other references to their evidence are as follows.
27. Mrs.O'Keefe: Paragraph 3 refers to the expert assessment by Mrs.O'Keefe and accepts the need for speech and language therapy in accordance with it. Paragraph A refers to her diagnosis of very severe dyslexia, which it accepts. I do not accept that there is simply a "minor reference" to Mrs.O'Keefe and in any event her evidence is accepted.
28. Mrs.Sharkey: There is no other reference to her. There is thus no reference to her description of emotional and behavioural difficulties or his emotional fragility and very low self-esteem as a learner. She expressed concern in evidence about the amount and quality of Norfolk's provision.
29. Mrs.Page: There is a reference to her report as late written evidence. There is no other reference to her. Thus there was no reference to her evidence of the inadequacy of the Norfolk proposals. She too recommended a specialist placement.
30. Dr.Male: Paragraph A refers to his diagnosis of very severe dyslexia, which it accepts. However, there is no reference to his report where he diagnoses an adjustment disorder, stating that Evan would, as in the past, react to the stress of educational failure if his need for a specialist school was not met. There is no reference to Dr.Male's opinion that a specialist school is required.
31. The Tribunal put on one side evidence of the previous difficulties in this way:

"Given that it is such a long time since Evan attended school we cannot find that references to that environment remain useful. Staff of whatever setting he is sent to will have to be mindful that he has not been accustomed to attend any school during the recent past and deal with his responses as they consider appropriate. That his emotional and behavioural difficulties emerge when he is unhappy is a truism."

32. The Tribunal set out its conclusions as follows:

"In respect of Part 4

J. We acknowledge that the appellant's (sic) have misgivings about the ability of the LEA-named school to meet Evan's special educational needs. We cannot find however that those misgivings are ones of substance. Evan has not been to the school and the LEA has had scant dealings with either him or the appellants. In the absence of direct experience we cannot apportion a great deal of weight to those objections. We find them to be more ideologically then (sic) educationally based. We are fortified in this conclusion by the evidence of the appellants themselves. They have experienced both the public and the private education sectors. So far as they are concerned the public sector has disappointed them whereas their dealings with the private sector, by their account, have been relatively positive. Having moved from Wales to Norfolk they are not prepared to risk further educational harm to Evan by placing him in an LEA-maintained school. The appellant's assertions against the named school did not persuade us that it could not provide for Evan's special educational needs.

K. Mrs.Nettleton was robust in her submission that the maintained school would not be able to meet Evan's special educational needs upon medical grounds. She sought, quite properly we should say, to persuade us that Wicklewood and the LEA did not have the expertise to deal with Evan and that their understanding of current thinking, so far as children with dyslexia is concerned, was badly flawed. In that regard she made a great deal of research into Wave III of the National Literacy Strategy, suggesting that Ms. Price would be misusing that strategy is (sic) it were applied to Evan in the manner proposed. With respect to Mrs.Nettleton her criticisms were misplaced. Ms. Price struck us as exceptionally competent and thoughtful. She had a thorough grasp of the research accompanied by a vision free of dogmatism. She freely conceded that she did not know Evan. She did not know what would work for him. She had not, in point of fact, been given the opportunity to find out. Nevertheless her specialist special needs experience was sufficient to equip her with the ability to appreciate the challenges that Evan would face and carefully considered proposals to meet them that took into account his long term school absence. Upon the basis of Ms. Price's evidence we were unhesitatingly persuaded that Wicklewood could provide for Evan's special education needs. On that basis it is unnecessary for us to determine whether the Old Rectory School could also provide".

33. The Tribunal also concluded that the difference in cost would give rise to unreasonable public expenditure when Evan's needs could appropriately be met at Wicklewood.
34. It is submitted by Ms. Stone, Counsel for Norfolk, that the Tribunal sufficiently dealt with the evidence of the three expert witnesses other than Mrs.O'Keefe.
35. The Tribunal was clearly entitled to form its view of Ms. Price. However, what the Tribunal set against the evidence of Ms. Price were the objections and misgivings of the parents and the submissions of Mrs.Nettleton, their solicitor. The Tribunal appears to have accepted that the objections were based on the parents' previous experience. However, the conclusion that the parents' objections were more ideologically than educationally based was one it was entitled to reach. What the Tribunal wholly failed to do was to refer to the opinions and reasoning of Mrs.Sharkey, Mrs.Page and Dr.Male on the issue whether a specialist school was required. It would be difficult to tell from the Decision that those three expert witnesses had given any evidence at all on that issue. It may well be, as is submitted on behalf of Norfolk, that Mrs.Nettleton referred to the expert evidence in her submissions. However, the Tribunal's reasoning did not reflect the fact that her submissions were based on such evidence. Presumably the Tribunal was not of the view that those three professionals' views were other than educationally based; or, if it were of that view, it would have been essential to explain that.
36. I do not consider that the Tribunal's reference to a conclusion unhesitatingly reached saves its decision, since that begs the question as to why the Tribunal rejected the views as to placement of the three expert witnesses.

(7) The alleged lack of specificity and the deprivation of a right of appeal

37. The part of the statement about which complaint is made reads:

"… Evan will benefit from a minimum of 10 individual diagnostic teaching sessions from a Specialist Support Teacher. Each session will be for approximately 45 minutes. A further 45 minutes training session will be provided weekly to his teaching assistant. There will be a review with regard to his ongoing needs at the end of this period of sessional work. Evan will benefit, in total, from individual support in the context of small group and in class work for a minimum of 25 hours per week, this to be reviewed annually".

38. Mr.Friel submits that the provision is not specific, provides for further assessment and deprives the parents of their right of appeal if the provision is changed. Ms. Stone submits that the review at the end of the 10 sessions (and, by implication, the training sessions) was a properly flexible provision, particularly when Evan had not been in school for some time. She also submits that the annual review referred to and further references to an annual review simply reflected the local authority's statutory obligations.
39. I have come to the conclusion that in the circumstances of this case the submissions of Ms. Stone should be preferred on this set of issues. It may well be that some additional assessment before the statement had been prepared would have been beneficial. However, Evan had not been in school for some time. Some flexibility was needed. A minimum was laid down. I do not consider that the parents were deprived of a right of appeal.

Conclusions

40. The challenge to the Tribunal's decision on grounds (4), (5) and (7) fails, for the reasons I have given.
41. However, on the grounds relating to the evidence, (1) to (3) and (6), the decision must be quashed. The failure on its own to mention reports is not crucial. However, in relation to Mrs.Sharkey, Mrs.Page and Dr.Male, there was a failure to address their evidence, where it differed from that of Ms. Price.
42. I invite submissions on the form of order the court should make, particularly in the light of the issuing of a new statement.