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
		27th January 2006

MR JUSTICE WALKER:

Introduction

1. This case arises out of a dispute as to the educational provision for a boy who was born on 22nd October 1990. I have made an order under the Children and Young Persons Act prohibiting in specific terms, which I need not set out now, any identification of him in any report of these proceedings. In this judgment I shall call him "T".
2. T's mother was dissatisfied with a statement of educational needs prepared by the first respondent, Devon County Council ("Devon"). She appealed to the second respondent, which I shall call "the Tribunal". There was a hearing on 31st March 2005. In a decision dated 13 April 2005 the Tribunal made changes to the statement of educational needs but not in the way that T's mother would wish. She now appeals to this court.

Background facts and proceedings before the Tribunal

3. In its decision, the Tribunal set out both the background facts and the proceedings at the hearing in paragraphs 3 to 23. The arguments of the appellant (that is, T's mother) make it necessary for me to set these out in full, substituting "T", "T's mother" and "T's father" for the names of those individuals, and anonymising the relevant teachers, schools and colleges. Those paragraphs read as follows:

"Facts

(3) [T] is currently attending [School A], an independent school approved by the DFES for boys with specific learning difficulty, dyslexia. During his primary years [T] had attended various schools, both within the maintained sector and within the independent sector. In September 2002 he began secondary phase education as a pupil at [School B], a mainstream school maintained by the LEA. [School B] had been identified by [T's] parents as their preferred secondary provision.

(4) However, a situation arose on the first day which resulted in [T] determining not to return to school. That continued until April 2003 when, with the help and support of a welfare officer, [T] began back initially for an hour a day, increasing over the next few weeks to the point where by May 2003 he was attending school for the whole day, although not always for the whole week. By the start of the new school year in September 2003 [T] was back at school on a full time basis, although . . . he was struggling, particularly in French. As a result it was agreed that he would not have to pursue French, but nonetheless matters deteriorated to the point where by the 27th April 2004 [T] again refused to attend school. He went back on the 29th April for a geography field trip. That was his last time at [School B]. Between September 2003 and the end of the summer term 2004, apart from those limited times when [T] was attending school, whether on a part time or full time basis, he was not receiving any formal educational input. Nonetheless, [School B] commended his work at the annual statement review in January 2004, commenting that it had not itself experienced the 'trauma' that [T] was reported to be suffering as a result of his attendance there.

(5) In the meanwhile, on the 19th May 2003 [T's] first statement of special educational needs was issued by the LEA, naming [School B]. It was noted that [T] had been known to the Devon Educational Psychology Service since 1997, that he had specific learning difficulties and experienced high levels of anxiety.

(6) As a result of [T's] experience at [School B], and in view of his previous difficulties with mainstream provision, independent and maintained, [T's] parents determined to look for another means whereby his special educational needs could be addressed. In due course they resolved that he should attend [School A], as from September 2004.

(7) This appeal is against Parts 2, 3 and 4 of [T's] amended statement, issued on the 22nd September 2004. For the purposes of the appeal [T's mother] had commissioned assessments by Mr Michael Biddulph, educational psychologist, Dr Brian Male, consultant psychiatrist, Ms Patricia Rush, independent occupational therapist and Nancy Arnaud, independent speech and language therapist. Reports from each of those experts were provided to us within the appeal papers.

(8) Within his report, Mr Biddulph concluded that [T] is a student in the average range of intelligence but that he has a specific learning difficulty which is making it much more difficult for him to use the written word than would be expected. Mr Biddulph noted that the application of the 'Dyslexia Index' which combines intellectual ability, achievement and diagnostic scores, puts [T] in a category indicating that his dyslexia is 'severe'. Mr Biddulph concluded his report by making a number of recommendations. He advised that [T] requires 5 hours of specialist tuition per week, using a structured multi-sensory approach, on an individual or paired basis provided by a suitably qualified and experienced teacher of students with specific learning difficulties; 2 hours a week of specialist study skills tuition; one hour a week of specialist tuition in mathematics; additional support with homework, not undertaken within the home; and additional tutorial support, timetabled on a regular basis, by a named sympathetic teacher with an understanding of his needs. Mr Biddulph also advised that if [T] was to be educated in a mainstream school he would require additional LSA support in literacy based subjects.

(9) Mr Biddulph concluded his advice in these terms:-

'Taking into consideration his educational history and the very limited time that is now available until [T] is due to take his GCSE examinations, I consider that placement in a specialist school for students with severe specific learning difficulties is required. This will meet all his needs in all areas of the curriculum. Unlike his time at [School B], he is happily attending [School A] which can meet his needs and he should remain there. It is extremely unlikely that he would stay in any other school and in my opinion any change of school at this state in his education would be disastrous.'.

(10) Dr Male's report is dated the 15th November 2004. [T's mother] told us that it came as a shock to her. He diagnosed [T] as suffering from a specific reading disorder (dyslexia); moderate depressive episode; and generalised anxiety disorder of childhood. Dr Male described three occasions during which [T] is said to have made attempts at suicide -- once by running head on into a cupboard, on another occasion repeatedly banging his head on the bedroom door, and on the third occasion, during his first week as a boarder at Mark College, when he is said to have tried to hang himself using his tie from a curtain rail. Dr Male noted 'although the suicide attempts have not been likely to succeed it is of concern that he can act like this in response to failure'. He described [T] as showing a separation anxiety, subsumed into the overall diagnosis of generalised anxiety. [T] had also expressed anxiety concerning his father's health but identified the principal cause of his stress as being his 'educational failure'. Dr Male concluded:-

'In my view, given the combination of his difficulties, he will require a specialist school for specific learning difficulties, in which the whole curriculum is taught in small structured classes by teachers with the expertise and experience to meet his special needs, and which is also able to support his emotional difficulties. He needs a residential placement now that he is overcoming his homesickness because it protects him from his anxieties about his father's health and ensures his regular attendance.'

(11) We should note here that at the conclusion of the hearing Mr Biddulph, speaking on behalf of [T's mother], emphasised to us that it is not part of her case that a residential placement is required to satisfy an educational need.

(12) Ms Rush, in her report of the 17th December 2004, looked closely at certain aspects of [T's] motor skills, and recommended that he requires occupational therapy provided by a paediatric occupational therapist experienced in working with boys of his age. She prescribed a short burst of therapy, in one term 6 sessions each of 45 minutes with the therapist followed by 15 minutes with an LSA, with monitoring sessions at the beginning and end of the next two terms.

(13) In contrast, in the medical advice obtained during the re-assessment of [T's] needs, the Consultant Community Paediatrician, Dr Holme, noted in his report of the 25th June 2004 that [T's] motor control was 'normal'.

(14) Finally, the speech and language therapist, Nancy Arnaud, assessed [T] and concluded that he has intact language skills and that there is no need for direct or indirect speech and language therapy. She noted that his language skills 'appear to be a relative area of strength for him'.

(15) There is no issue between the parties as to the relevance and significance to [T] of his specific learning difficulty. The LEA's educational psychologist, Ms Tipping, gave evidence to us at the hearing and confirmed that there is no material point taken in respect of the test results obtained by Mr Biddulph, which were largely consistent with results obtained by others on previous occasions. The difference between the parties is whether [T] needs the specific quantity of specialised provision put forward by Mr Biddulph in his report, supplemented by him during the course of his evidence to us, or whether [T's] specific learning difficulty can be dealt with adequately within its own maintained provision, which is now proposes should be [School C].

(16) [T's mother] urged upon us that it is not simply a matter of addressing [T's] academic needs in terms of his literacy and numeracy difficulties. She said that his school history to date has been fragmented and has presented him with a number of challenges which have caused him, and his family, stress, which have raised his anxiety to wholly unacceptable levels, and which have caused his self-perception and self-esteem to plummet. She told us that [T] took a couple of months to settle at [School A], but is now well settled there and is succeeding. Initially she would receive a number of telephone calls and text messages from him, through the day and night, [T] using that as a means of relieving his anxiety. She told us that now she gets perhaps 2 a day, if that, and that during his time at home, at weekends and during holidays [T] is a wholly different child. He is relaxed, happy, and is achieving -- not least as a result of the fact that he is now a regular attender at school rather than a school refuser.

(17) We were generally assisted at this hearing by evidence from [Mr C], the head of learning support and SENCO at [School C]. The college takes pupils between 7 and 13. There are presently approximately 860 students on roll. Of those there are 80 children at School Action, 10 at School Action Plus and 24 with statements of special educational needs, of whom 6 have statements that include specific learning difficulties.

(18) [Mr C] has the RSA qualifications in teaching children with specific learning difficulties. He told us that 80% of his own timetable is available for use at his discretion. Currently about 20 lessons out of the 40 which take place during the week are spent by him with pupils on a 1:1 or small group basis. Additionally there is a team of 16 teaching assistants (TAs). A number of them have undergone specialist SEN based training. Should [T] attend [School C], [Mr C] told us that he has a particular TA in mind who has experience of supporting a child who entered the school in Year 8, barely literate, to the point where he is now on course to achieve 5 or more GCSEs at grade C and above. During the course of his evidence, [Mr C] fully and carefully explained to us how [T's] specific learning difficulty would be addressed. A range of multi-sensory teaching strategies are used within the school including a Reading Scheme on a 1:1 or small group basis; the use of Phongraphics, with specific training from LEA staff; two TAs have recently completed training on the Reading Recovery Scheme; use of the Touch, Type and Spell IT package; and reading groups of 3-6 students, allowing for daily reinforcement of literacy learning.

(19) [Mr C] explained the expanded and improved ICT resources available within the school and how [T's] need for organisational study skills would be met. In mathematics a particular TA is designated to the maths department and would support [T] under the guidance and supervision of the maths teacher. Homework support is provided both within and after school homework club and also within a support facility (referred to informally at the hearing as a 'sanctuary') staffed by teaching assistants and over-seen by [Mr C]. Presently it is running at lunchtime but as from May it will be available throughout the school day.

(20) As to occupational therapy, [T's mother] told us that it is not currently being provided to [T] at [School A]. There is not an occupational therapist on site there, and so it would have to be bought in, if required. At the moment neither she nor [School A] see it as a requirement. [T's] motor skills needs are being met as part of the delivery of the curriculum. [Mr C] confirmed that the same would happen at [School C].

(21) Miss Chester told us that the LEA would in any event want to undertake an occupational therapy assessment, noting the discrepancy between the paediatrician's view on [T's] motor skills, and those expressed by Ms Rush in her report. Should that assessment identify a need for occupational therapy, then the LEA would secure it, the usual model being that a programme is devised by an external therapist, having assessed [T], and is delivered by a TA, and also generalised across the curriculum. The LEA acknowledges that occupational therapy is, in [T's] case, an educational need. What is does not accept is that there is a requirement now for [T] to have direct work with the therapist in order for that need to be appropriately addressed.

(22) At the end of the hearing there was discussion between the parties as to the relative cost of the placements at [School C] and [School A]. Mr Harrison had done some calculations, based upon what it would be likely to cost the LEA if it was required to make the provision identified in the various experts' reports, upon the assumption that the provision would have to be bought in. However, should individual occupational therapy be required for [T], that would be a cost incurred in whichever placement [T] was being taught. In terms of comparison, therefore, it would be cost neutral.

(23) As to the provision of specialist teaching, [Mr C] has the qualifications required to undertake that work. He is already employed by the LEA, and would have the time available within his existing timetable. The LEA would not be having to buy in specialist teacher time, nor would it be purchasing additional TA time, given the resources available at [School C], to provide necessary support during the course of the school day, and throughout the curriculum, as required."

The Tribunal's conclusions

4. The Tribunal set out its conclusions in lettered subparagraphs. Again, it is necessary to set them out in full, making the same substitutions. They read as follows:

"(a) As to the description of [T's] needs within Part 2 there is not, in fact, any significant difference between the parties. We do not accept that it is appropriate to describe [T's] specific learning difficulties as 'severe' in the terms in which it is put to us by Mr Biddulph. The LEA accepts that his difficulties are significant but disputes that it is helpful to categorise it in those terms. We accept the LEA's position that where there is no issue between the parties as to the assessment results obtained both by those within the LEA, and those outside it, it is more relevant to determine the provision necessary to meet those needs, about which there is no dispute, than attempt to label them. We accept that [T's] needs are significant.

(b) We also accept that as a result of the additional information obtained by [T's mother], and provided to us at this appeal, Part 2 should be expanded so that it contains a more detailed account of the findings of the various experts who have contributed to a more complete understanding of [T's] needs.

(c) At the end of the hearing, in his submissions on behalf of [T's mother], Mr Biddulph urged us to the view that it would be wrong to jeopardise what is now working at [School A] by placing [T] at [School C]. He noted, however, that 'from a paper point of view [School C] could possibly make provision for [T]' but said that it would not work in practice. The inference is that [T] would refuse to attend [School C] because of his previous experiences and because he is now fully settled within an environment that he finds understanding and supportive.

(d) On the balance of the evidence provided to us at this appeal we find that appropriate and adequate provision can be made for [T] at [School C]. We were impressed by the evidence given to us by [Mr C]. We are satisfied that if [T] requires 1:1 specialist teaching, it will be available to him at [School C]. [Mr C] has the experience and qualifications to provide it. We are further satisfied that support in literacy based subjects within the curriculum, and in mathematics, can be appropriately and adequately provided by [Mr C], the TAs, and professional staff within the school. It seems to us that [School C] is well resourced and that [T's] dyslexia is readily capable of being addressed by [Mr C] and his colleagues there.

(e) As to occupational therapy, we agree with the LEA that it would be appropriate for it to obtain its own assessment. We are satisfied that occupational therapy is appropriately identified as an educational need. We are not satisfied, however, that the case is yet established that there needs to be direct 1:1 work between [T] and an occupational therapist. We have taken account of the report prepared by Ms Rush. We have noted that the Consultant Community Paediatrician identified [T's] motor skills as 'normal'. We are aware that no occupational therapy is currently being provided for [T] at [School A]. Direct work with a therapist does not appear to have been identified as a necessity there, at least for the time being. We are satisfied that should it become apparent to [School C] that some direct occupational therapy is required to supplement or guide Mr Confrey and his colleagues in the delivery of the curriculum, it will be identified and will be provided for [T] at [School C]. As Mr Biddulph pointed out, Ms Rush was in any event recommending a relatively small amount of direct provision.

(f) As to additional learning support, we are satisfied that [School C] is appropriately resourced to ensure that [T] has that support within those parts of the curriculum where it may be required. We agree with both parties to this appeal that [T] would not be assisted by a lot of dedicated support within the classroom. It would reinforce his sense of being 'different'. It would be unwelcome to him and would, in all probability, be ineffective. On the basis of what we have heard, from [Mr C] in particular, we believe that adequate support would be sensitively and purposefully provided to [T] at [School C]. [T's] vulnerability would be recognised and properly addressed by a soundly based pastoral care system within the school.

(g) The LEA does not suggest that [T] is not being adequately provided for at [School A]. On the face of it, therefore, both placements would be able to meet his needs.

(h) [T's mother] told us that if the decision boiled down to one of cost, having regard to her preference that [T] should remain at [School A], she . . . would undertake to be responsible for transporting [T] to and from [School A], on a weekly basis so that the burden that fell upon the LEA would be restricted to the annual boarding fee, namely £17,952.

(i) On the basis of the evidence, the only additional cost that might be incurred at [School C], should it be found to be necessary, would be some limited direct occupational therapy. However, that cost would also fall upon [School A] should the same provision have to be made for him there. [School C] is already sufficiently resourced, in our opinion, both in terms of access to a specialist teacher and to appropriate learning support so that the cost of [T's] placement there, put by the LEA at £4,722 per annum is a reasonable basis upon which to conduct the comparison.

(j) We have . . . concluded, however, that there is a material and significant difference between the placement costs at [School A] and [School C], irrespective of transport costs. We find that it would be an unreasonable imposition upon the LEA to require it to fund the cost of [T's] attendance at [School A], even with the cost of transport being removed from the equation.

(k) However, we have to resolve the differences in the approach taken by Mr Biddulph and Ms Tipping to the provision of specialist teaching. Both took the view, with which we agree, that 'little and often' was likely to be most effective. On balance, we are satisfied that there needs to be a minimum level of specialist teacher provision identified within [T's] statement. Having heard from [Mr C] we are not satisfied that it needs to be as much as recommended by Mr Biddulph. We have noted the LEA's position. Ms Tipping invited us, in effect, to leave it to [Mr C] and his colleagues to determine what provision is required, and then to provide it. We take the view, however, that some middle ground is appropriate.

(l) Having considered the report from [School A] as to [T's] current progress and taking note of his verbal and non-verbal abilities as identified by his test scores, in our view 2 and a half hours a week would be an appropriate minimum level of direct or small group (a maximum of three pupils in the group) specialist teaching provision for [T] to facilitate his access to the curriculum at [School C]. We are satisfied that should it be found that more than that is necessary it can be, and will be, provided from within the teaching resources available at that school.

(m) We do not find that it is possible, desirable or necessary to identify some minimum level of TA support for [T] at [School C]. We are satisfied that there would be adequate resources and experience to ensure that [T] is appropriately supported across the curriculum in a manner that would not cause him to feel himself to be under a spotlight.

(n) Finally, but importantly, we have to consider whether all of the above would be rendered irrelevant because of [T's] emotional responses to stress and pressure and his predicted reaction to [School C] being named in Part 4.

(o) Dr Male's report is a cause for significant concern. We can fully understand [T's mother's] shock upon reading it. She chose not to share it with [T's] GP nor, until as part of the appeal papers, with [School A]. No help or support has yet been sought from CAMHS. We note that [School B] appears not to have experienced the traumas within school that were described as having been experienced at home prior to April 2004. That is not to deny that [T's] behaviour at home, and physical discomfort at the prospect of going to school, were not real and very upsetting to his parents. That was allowed to go on for several months, without any formalised educational input or support being made available to him while he was out of school. As time wore that would have been likely to reinforce [T's] reluctance to consider going back to school.

(p) [T's] mother was very clear in her evidence to us that this is not a case of a child 'tied to his mother's apron strings', notwithstanding Dr Male's references to separation anxiety. In responding to [T's] numerous phone calls and text messages following his placement at [School A] -- as well as one serious attempt at self-harm -- she has reinforced her support for that placement and has been successful in persuading [T] to stay the course after a rocky start. With that encouragement [T] has made a difficult transition -- all the more difficult because it has required him to be away from home during the school week.

(q) We heard from [Mr C] how the pastoral care system works at [School C]. The college has its own counsellor, but also has access to more specialist counselling from CAMHS, which [Mr C] thought might well be preferable in [T's] case. We are confident that [School C] would adopt a sensible and sensitive approach to enabling [T] to make a managed transition from boarding provision at [School A] to day provision at [School C]. We do not underestimate the size of the task, but we do consider that if given the same home-based support that he gets currently, [T] would be able to make the move to [School C] where he would be well supported throughout his GCSE years, and where he could stay on into the 6th form if he so chose.

(r) We acknowledge that, despite what we have found, [T] may not himself be persuaded and that he may refuse to make the move. However, given our conclusions as to the adequacy of provision at [School C], and as to the material difference in the cost of a placement at [School A], it could not be appropriate nonetheless to require the LEA to fund [T's] placement at [School A] on the ground only that [T] may refuse to attend at [School C]."

The heads of complaint

5. Miss Scolding, who appears today on behalf of the appellant, said that the challenge now made by the appellant was confined to four heads of complaint. First, it was said that the Tribunal had failed to give reasons for rejecting the evidence of the educational psychologist, Mr Biddulph, and the psychiatrist, Dr Male. Second, it was said that when identifying in section 3 of the statement the provision required to meet T's needs, the Tribunal was insufficiently specific in relation to teaching assistance and occupational therapy needs. Third, on the question of occupational therapy provision, the Tribunal was said to have been self-contradictory and unlawful in its reasoning. Fourth, complaint was made that the Tribunal had allowed cost implications to take precedence over T's needs.

The first head of complaint

6. In order to examine this head of complaint, I need to make some remarks about the structure of the Tribunal's decision, particularly in the section where the conclusions and the reasoning are set out. It will be seen from the extensive quotation of subparagraphs (a) through to (r) earlier in this judgment that the Tribunal was able to deal relatively shortly with matters which it treated as going to the question of T's needs. It did so in subparagraphs (a) and (b). The remainder of this section of the decision, subparagraphs (c) through to (r) deal in various places with the question of provision to meet those needs and the question of placement, and in some subparagraphs with both. It is a matter of concern to me that the Tribunal does not appear to have carried out the logical function of proceeding from the question of needs to the question of what provision is required to meet those needs, and then to the question of placement. I shall return to that concern later in this judgment.
7. So far as the question of placement is concerned, Mr Oldham, who appears today for Devon, accepted that the Tribunal's reasoning had three sequential stages. The first was that the provision for special educational needs required by T was available at School C. The second was that School C would be significantly less costly than the school T is at at the moment. The third, which is introduced at subparagraph (c) and examined at subparagraphs (n) to (r) was that T would be able to make the move to School C.
8. The appellant's skeleton argument on this head focussed on the third stage. Consistently with this, Miss Scolding began her oral submissions by saying that paragraphs (n) to (r) had failed to deal with the psychiatric and psychological evidence. She cited the evidence from Mr Biddulph which is quoted by the Tribunal at paragraphs 8 and 9. T was extremely unlikely to stay at any other school; his emotional needs and specific learning difficulties required a specialist school; moving him would be disastrous. The psychiatrist, Dr Male, had, as noted by the Tribunal, identified two attempts at suicide by T at a previous school and one at his current school. There had been a diagnosis of specific reading disorder, a moderate depressive episode and generalised anxiety disorder of childhood. Again, the Tribunal had quoted relevant parts of Dr Male's report. In particular, paragraph 10 quoted his conclusions that T required a specialist school for specific learning difficulties in which the whole curriculum was taught in small structured classes by teachers with the expertise and experience to meet his special needs and which is also able to support his emotional difficulties. There was a need, Dr Male had said, for a residential placement now that T was overcoming his homesickness because it protected him from his anxieties about his father's health and encouraged his regular attendance.
9. Miss Scolding said that subparagraphs (n) to (r) failed to explain why the Tribunal dismissed the expert conclusion that a specialist school was necessary and that to move T at this stage would be disastrous. T's anxiety was a central issue and no expert evidence countered it. At subparagraph (q) the Tribunal had indicated what Mr Humphrey (who was not a psychiatrist or psychologist) had indicated was available. Given that the Tribunal accepted Dr Male's report to be a significant cause for concern, it was essential for the Tribunal to indicate why it was rejected. What had happened, said Miss Scolding, was that the Tribunal had decided evidence and not explained why it reached the conclusion that it did.
10. So far as the law was concerned, Miss Scolding accepted the principle set out in the case of W v Leeds and SENDIST [2005] EWCA Civ 988, relied upon by Mr Oldham in his skeleton argument. There Wall LJ at paragraph 53 had adopted the approach taken by the Court of Appeal in Meek v Birmingham City Council [1987] IRLR 250:

"The parties are entitled to be told whether they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court, to know whether any question of law arises."

Miss Scolding added, however, that, as can be seen, for example, in paragraphs 32 to 36 of the judgment of Calvert Smith J in J v Staffordshire, it is necessary for the Tribunal to deal with the substantial points raised.

11. I queried with Miss Scolding whether her argument had not gone beyond the way in which the first head of complaint was put in paragraph 5 of the appellant's skeleton argument, in so far as the psychiatrist and educational psychologist had said that a special school was needed. That had been rejected by the Tribunal before turning to the third stage in subparagraphs (n) to (r). Miss Scolding said that the position simply was that the question of his emotional needs was relevant to whether he could be placed at School C and that neither in sections (n) to (r) nor in the earlier sections had the Tribunal dealt with that question.
12. She suggested that this case was similar to the facts of a decision of Mr Jack Beatson QC (as he then was) in R (on the application of B) v The Vale of Glamorgan County Borough Council. I say no more about that aspect for, as it seems to me, the factual questions which arose in that case were different from those in the present case. That case concerned a child who had attended and then refused to attend further a particular school. The local authority had asserted that, nonetheless, the child could be returned to that school. This case is different in that the school which the Tribunal has in mind is not a school that T has ever attended.
13. In summary, Miss Scolding said that this was not a case of bare school refusal. T was accepted to have the psychiatric problems identified by Dr Male. He had previously harmed himself in order to avoid going to school. The Tribunal failed to show that they had grappled with the emotional needs of T and the impact that that had on the choice of school that he would attend.
14. When Mr Oldham came to make submissions on behalf of Devon on this, I raised with him a concern as to whether the Tribunal had dealt adequately with the expert evidence on the first stage of the question; namely, whether T's needs could be dealt with adequately at School C. I have found it difficult to identify where in the Tribunal's conclusions there is any explanation by the Tribunal of reasons for rejecting what, as it seems to me, are highly relevant passages in the evidence of the two experts.
15. First, Dr Male said that T required a specialist school for specific learning difficulties in which the whole curriculum is taught in small structured classes by teachers with the expertise and experience to meet his special needs and which is also able to support his emotional difficulties. Mr Oldham referred me to subparagraphs (k) and (l). I find it difficult to see how those paragraphs grapple with this particular point. Dr Male went on to say that T needs a residential placement now that he is overcoming his homesickness because it protects him from his anxieties about his father's health and ensures his regular attendance. As to that, in addition to subparagraphs (k) and (l), Mr Oldham drew attention to paragraph (11). There, the Tribunal noted that Mr Biddulph, on behalf of T's mother, emphasised that it was not part of her case that a residential placement was required to satisfy an educational need.
16. That being the case, Mr Oldham says I need not address the question of whether T needs to be at a residential school, or indeed, I would infer, at this particular residential school. I have found this a particularly troubling aspect, for Mr Biddulph is also recorded in paragraph (9) of the determination as saying that it was extremely unlikely that T would stay in any other school and that, in his opinion, any change of school at this stage in his education would be disastrous. I have not found any explanation in the Tribunal's determination of the reason why it did not accept that opinion by Mr Biddulph.
17. The Tribunal in subparagraph (q) say that School C would adopt a sensible and sensitive approach. That, with great respect, is not addressing the relevant question which was whether T, given what was known about him, would be able emotionally to make the transition. That certainly is a question which the Tribunal had identified as a question it needed to address.
18. Subparagraph (n) identified T's emotional responses. Subparagraph (o) then turned to Dr Male's report which had, of course, dealt at length with T's emotional responses. What is said in subparagraph (p) is that T's mother responded to his anxiety, following placement at his current school and a series of attempted self-harm in that regard, by reinforcing support for that placement and succeeded in persuading T to stay. It is said in subparagraph (q) that if given the same home based support, T would be able to make the move to School C. To my mind, the one does not necessarily follow from the other and there is no explanation of why it should. That is particularly important given what was said by both the psychiatrist and the psychologist.
19. I said earlier in this judgment that I was troubled by the way in which the Tribunal had dealt with what Dr Male said about a residential school. I recognise that in paragraph (11) the Tribunal recorded a concession that it was not part of the appellant's case that a residential placement was required to satisfy an educational need. Nevertheless, it seems clear from the determination as a whole that the Tribunal proceeded upon the footing that the matters which Dr Male had described as giving rise to a need for a residential placement were relevant to the issue of placement. The short cut that Mr Oldham has suggested is not a short cut which the Tribunal adopted in its determination. Nor, and perhaps more significantly, is it a short cut which the Tribunal indicated to the parties it was minded to adopt so as to shut out points of this kind from being advanced in relation to placement. In those circumstances, I do not think it would be right for this court to say that it was not open to the appellant to rely upon T's emotional needs on the question of placement.
20. For the reasons I have given, I conclude that the Tribunal has not, in the words of Lord Bingham in Meek, explained to the appellant why she lost on the question of placement, nor given a sufficient account of its reasoning to enable the court to know whether there may have been some misapprehension of law. That means that the appellant succeeds on the first head of complaint and I do not need to go into other aspects of the first head of complaint.
21. I can deal shortly with the remaining grounds of challenge. The second head of complaint asserted that the provision identified by the Tribunal was inadequate in that it deleted a specific number of hours for teaching assistance and in that it failed to specify occupational therapy needed for T. Miss Scolding relied in this regard on the established principle that the provision required must be considered before a decision is made about the appropriate placement.
22. Turning first to teaching assistance, to my mind subparagraph (f) of the Tribunal's conclusions explains in clear terms why the original statement of 420 hours should be deleted. The answer was that this was in T's best interests. Applying paragraphs 8.35 and 8.37 of the Special Educational Needs Code of Practice, and consistent with the decisions in R (IPSEA Ltd) v Secretary of State for Education and Skills [2003] ELR 393 and in E v London Borough of Newham [2003] ELR 286, this was an instance where flexibility was needed.
23. Turning to occupational therapy, at subparagraph (e) the Tribunal found that it had not been shown at present that there needed to be direct one-to-one work between T and an occupational therapist. In those circumstances, it would have been quite impossible for the Tribunal to specify occupational therapy provision. Thus, without in any way casting doubt upon the legal principle that provision must be identified before turning to placement, I find that this head of complaint is not made out.
24. The third head of complaint was also concerned with occupational therapy. It was said that, contrary to principle, the Tribunal had directed an assessment. Such assessment was said to be its own responsibility. The view that I take, however, is that the Tribunal properly made its own assessment, which is the assessment I described earlier found in subparagraph (e). Reasons for that assessment are set out in that subparagraph. I need not go into them here. The fact that the Tribunal indicated that there should be a further assessment could not in any way disadvantage T and cannot, in my view, be a sound ground for overturning the Tribunal's determination.
25. The fourth head of complaint asserted that the Tribunal had ignored the question of T's emotional needs and wrongly concentrated on costs. I do not accept that the Tribunal in its determination was seeking to put costs ahead of emotional need. However, for the reasons that I have given on the first ground of complaint, the Tribunal's determination does not explain the reason for rejecting what has been said by the experts in relation to emotional need, in so far as this affected placement.

Conclusion

26. My conclusion is that the first head of complaint succeeds but that the other heads of complaint fail.
27. I will hear counsel as to the appropriate consequential orders.
28. MISS SCOLDING: My Lord, I would ask that our costs be paid by the first respondent in this action.
29. MR JUSTICE WALKER: The first thing will be that the appeal is allowed.
30. MISS SCOLDING: Yes, my Lord.
31. MR JUSTICE WALKER: The decision of the Tribunal is quashed.
32. MISS SCOLDING: Yes. The matter to be remitted to a freshly constituted Tribunal.
33. MR JUSTICE WALKER: Any objection to any of those orders, Mr Oldham?
34. MR OLDHAM: My Lord, certainly the appeal should be allowed and the decision quashed. It occurs to me, my Lord, that one option before your Lordship would be to remit it to the same Tribunal to consider the one question that your Lordship has found that it failed adequately to consider, rather than to reopen the entire matter. However, I must leave that to your Lordship's discretion.
35. MR JUSTICE WALKER: As I have said, I do have a concern about the whole structure of the conclusion section. In this particular case I think it is appropriate that the matter should go back to a fresh Tribunal.
36. MISS SCOLDING: The only other consequential issue is whether or not your Lordship feels that the original decision of the Tribunal should go before the fresh Tribunal. There had been previous authority, albeit the reasoning is opaque, to indicate that the original Tribunal decision should not go back to the freshly constituted Tribunal for the good reason that it has been quashed by the High Court. However, it has been the practice of the Special Educational Needs Tribunal to put the original Tribunal decision back in the bundle when it gets remitted back. I would ask, on the basis of the need for justice being seen to be done, that even though it is a fresh Tribunal, in the circumstances of this case it would be more appropriate for the Tribunal not to see the original decision which has subsequently been quashed. I merely mention this because it is practice and it has caused difficulties in previous cases.
37. MR JUSTICE WALKER: Your solicitor will be able to ventilate it with those at the Tribunal and the County Council. If an issue arises and if this court has jurisdiction to deal with it then you will be able to raise it. At the moment I think the best course is simply to deal with it in correspondence.
38. MISS SCOLDING: I am grateful, my Lord. The only other issue is that of costs. We would ask for our costs and we are publicly funded. We would ask for a public funding assessment and costs to be subject to a detailed assessment.
39. MR OLDHAM: My Lord, on the principle of costs, of course I recognise that the winner normally gets the costs but there are three points here which might suggest to your Lordship that there should either be no order or only an order for part of the costs.
40. The first is that this is a decision of a third party. Secondly, both parties are publicly funded. The third is that although a number of grounds were put forward and therefore some legal time spent on dealing with them, only one of them was successful. I am not sure I can assist any further.
41. MISS SCOLDING: My Lord, the fact that a third party was involved I think is irrelevant.
42. MR JUSTICE WALKER: You need address me only on the third point.
43. MISS SCOLDING: My Lord, I would indicate that clearly those grounds were properly raised. They have not taken up an excessive amount of real time either in written or oral argument before you today. We have substantially succeeded on this appeal and the ability to apportion successfully those grounds upon which there was success and failure would be far more difficult in an appeal of this nature than in other areas where one could quite helpfully, and the court would quite properly, make an apportionment of the order for costs. In those circumstances, I would ask that the appropriate order is that all our costs be paid.
44. Obviously, my Lord, as my instructing solicitor has indicated, there have been attempts to try and settle this matter out of court so obviously matters had to proceed down that route. It might be difficult to disentangle what should be paid and what should not if you adopt my learned friend's argument. Those are my submissions on that. Thank you very much.
45. MR JUSTICE WALKER: On the issue of costs, Mr Oldham recognises that in general the losing party should pay the costs. He observes that we are concerned with the decision of a third party. As to that, of course, if the County Council had not sought to support that decision then matters might have taken a very different course. He observes that both sides are publicly funded. I do not think that that is a relevant factor for me. I have to determine which of two bodies should bear the costs and this will have an effect on those bodies' finances.
46. The third point taken by Mr Oldham is, however, more substantial. The appellant has succeeded on only one of the grounds. The grounds appearing on the notice of appeal were even more extensive than those found in the skeleton argument for the appellant. In relation to the skeleton argument, the appellant has succeeded on only one of four heads of complaint. As against that, it seems to me that the ground on which the appellant has succeeded was the major ground. In those circumstances, I believe that the just course is to order that the respondent should pay two thirds of the appellant's costs, to be the subject of detailed assessment if not agreed. I believe there may be the need to make an order for detailed assessment of the appellant's publicly funded costs and I make that order.
47. MR OLDHAM: I am grateful, my Lord.
48. MR JUSTICE WALKER: May I express my thanks to both of you and your legal teams.