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
		24/03/2006

Mr Justice McCombe:

1. This is an appeal, brought by Mr. and Mrs. R ("the parents") against a decision and order, dated 27/6/05, of a Special Educational Needs and Disability Tribunal concerning their son, J, who was born on 29 December 1993. J is, therefore, now 12 years old; he was 11 at the time of the decision under appeal. The First Defendant to the appeal is the relevant local education authority, namely Hampshire County Council ("Hampshire"). Before me the parents were represented by Mr. John Friel of Counsel and Hampshire were represented by Mr. Paul Greatorex of Counsel. The Second Defendant, the Tribunal did not appear and was not represented.
2. It was common ground before me that J, as the Tribunal found, has profound sensori-neural hearing loss. He has a cochlear implant. His left ear has no useful hearing. His right ear has the equivalent of a residual mild hearing loss in terms of acuity when using the impant. In practice, as the Tribunal stated, J functions as a "monaurally" hearing child, with reduced range of hearing and increased vulnerability to background noise. In June 2005 he had also recently been diagnosed as having "Usher Syndrome". This has caused him to have a constricted field of vision and poor night-time vision. There is no treatment for the condition. The prognosis is one of deterioration, but the rate and extent of the deterioration are unpredictable. Mr. and Mrs. R told the tribunal that J did not find his eyesight a problem at that time.
3. J had for some time been the subject of a statement of Special Educational Needs under the Education Act 1996 ("the Act"). The most recent amendment to that statement had been made in February 2005 and it was the statement, as so amended, that was the subject of the appeal to the Tribunal and which, as further amended pursuant to the Tribunal's decision, is the subject of the appeal to this Court.
4. Before the Tribunal the parents were applying for changes to Parts 2 and 3 of the statement, as to J's needs and as to the appropriate provision for those needs. They also appealed against Hampshire's decision as to the school to be specified in Part 4 of the statement as being suitable for J's needs. Hampshire specified the NL school. The parents contended that that school was inappropriate and that the MH school should have been specified instead. NL is a maintained school within the county of Hampshire; MH is a non-maintained special school in Berkshire with charitable status. The cost to Hampshire of placing J at MH would be substantially greater than placing him at NL. Hampshire challenged the appropriateness of MH on the basis that that school was unsuitable to meet J's visual needs and also that the cost of the placement would constitute an unreasonable public expenditure. I shall return to the parents' challenge to the suitability of NL for J's needs. Mr. Friel for the parents accepted that if both schools were appropriate then Hampshire were entitled to have regard to the relative costs of placement at each school. Equally, Mr. Greatorex accepted that J could not be placed at an unsuitable school simply for reasons of cost.
5. The parents' grounds of appeal to the Tribunal contained, among other things, the following passages:

"The Final Amendment Statement does not fully identify [J]'s particular needs, specifically:

-Social emotional inclusion

-Specialist teaching

-Improved classroom acoustics/environment/size…"

"[J] needs access to a broad balanced curriculum appropriate for a pupil of high ability despite his hearing impairment. Small group teaching by experienced Teachers of the Deaf, across all subject areas, would overcome many of the practical and important issues that could impede his ability to learn. An acoustically modified room arranged so that children can all see each other and the teacher, would enable [J] to receive teaching at first hand (directly from the Teacher, rather than through an intermediary.)…"

"The decision for a mainstream placement was reached without considering the difficulties detailed above and we do not feel that a mainstream school can meet [J]'s needs. We feel that the appropriate provision should be MH…from September 2005 onwards".

6. The parents' subsequent case statement asserted that MH would meet J's needs "maximising his use of audition in the classroom, requiring low background noise, good acoustic conditions, and a classroom layout which enables him to see both his teachers and his peers". As one of the amendments to Part 3 of the statement the parents also sought the insertion of the following:

"In order to maximise [J's] hearing and access to the curriculum in the school situation…c) [J] requires low background noise and good acoustic conditions which are clearly specified in Building bulletin 87 for existing buildings and Building bulletin 93 for proposed buildings…"

7. Hampshire's case statement asserted the suitability of NL, taking issue with various points made by the parents as to the alleged unsuitability of NL, including the experience of the staff and J's ability to socialise with other pupils at the school. The case statement included the following passages:

"[J's] use and understanding of spoken language is within the average range when compared with a hearing child of the same age when given a good acoustic environment…"

"The Educational Psychologist report July 2004 reported that [J] continues to benefit from hearing peer role models to encourage the development of his speech and language skills and communication, in an inclusive school where the emotional and social impact of hearing impairment is recognised and supported. [NL] School can provide this environment where there are pupils with a range of high ability who are sensitive to pupils with hearing impairment. In addition there are acoustically favourable classrooms, and hearing impaired pupils have the benefit of support in the hearing impaired unit, staffed by Teachers of the Deaf…."

8. Also before the Tribunal was a report about J prepared by a Consultant Audiologist. Included in his conclusions was the following passage:

"The cochlear implant has been a great success for [J], giving him very good hearing acuity. However, it must be recognised that he remains a monaurally hearing child, who is vulnerable to the effects of room acoustics and competing noise. His excellent hearing in ideal circumstances may mislead some into assuming that [J] should also be able to function in normal levels of classroom noise. However, this is not the case, and teaching strategies and classroom management will need modification in his favour…".

9. It appears from the Tribunal's decision that during the course of the hearing before the Tribunal Hampshire's representative asserted (as claimed in case statement quoted above) that a number of classrooms at the School met the "recommended" levels for hearing impaired pupils. She produced a paper or report which suggested something to this effect. The document was not taken into the Tribunal's record and is not in the bundle before the Court. However, as the Tribunal records in its decision Mr. Shaw, the principal of MH told them that the survey produced did not indicate that the rooms at NL met the "recommended" standards for hearing impaired pupils, but rather that they met the standards for hearing pupils. The source of such recommendation is not identified in the decision or elsewhere. See paragraph 18 of the decision.
10. In its conclusions and reasons the Tribunal dealt with many issues as to the needs of and appropriate provision for J which were to be included in revised Parts 2 and 3 of the statement. It rejected Hampshire's contention that placement at MH would be inappropriate; it recorded in this respect Mr. Shaw's evidence as to the school's ability to meet the needs of visually impaired children, which had been the prime ground of Hampshire's challenge to the appropriateness of MH as a school for J. However, the Tribunal also found that NL was suitable for J in many respects which had been disputed by the parents. Perhaps at the core of its findings in this respect were the reasons set out in paragraph f. That paragraph began,

"We were satisfied that [NL] School would be able to meet [J]'s needs. The educational attainments of past pupils who have attended the unit appear to be good. The school is able to offer an appropriate level of teacher of the deaf and LSA support. [J] will have access to a hearing impaired peer group, including two other pupils in his year group (his close friend being one of the two). In the light of the fact that teachers of the deaf regularly support pupils in mainstream classes we believe that teaching staff are likely to be aware of and alive to deaf issues. The school population will include pupils with a range of needs, including hearing impairment, and we are satisfied that the school will be able to provide the curriculum delivery and programmes necessary to address [J]'s continuing deficits in literacy and with aspects of language development…".

11. The Tribunal also found that Part 3 of the statement should be amended to provide a requirement that "…[J] be taught in good acoustic conditions including meeting any required standards for acoustic conditions for pupils with hearing impairment…". Later in paragraph f. of its conclusions, after the passage already cited above, the Tribunal found,

"…on the evidence before us we could not be satisfied that the acoustic conditions at the [NL] school met any recommended or required standards for pupils with hearing impairment. The school has been chosen by the LEA as the site for a unit for hearing impaired children and as such should clearly offer appropriate acoustic conditions including meeting any required acoustic standards…However, we were not persuaded that the benefit to [J] of attending [MH] school…outweighed the considerable extra expense to the LEA. This is despite our reservations about the acoustic conditions at [NL] School. We have taken the view that if the school does not currently meet required or even recommended standards then the LEA has a responsibility to its hearing impaired pupils, including prospective pupils, to take swift steps to address the situation…".

12. As part of its order the Tribunal directed Hampshire " to further amend (sic) Part 3 by including the following [J] needs to be taught in a teaching environment which offers good acoustic conditions and which meets any required standards for acoustic conditions for the teaching of pupils with hearing impairment…".
13. The Tribunal then went on to dismiss the appeal as to Part 4 of the statement, being that part which provided for the placement of J at the NL School.
14. The parents now challenge the lawfulness of the Tribunal's decision. The challenge is formulated in a variety of ways. However, it boils down to this. The Tribunal could not lawfully find, as it did, on the evidence recited, that J needed "to be taught in a teaching environment which offers good acoustic conditions" and at the same time uphold the proposed placement of J at NL. It is argued that do so is to fail to act upon its finding on the evidence that it was not satisfied that the school "met any recommended or required standards for pupils with hearing impairment".
15. In response, Hampshire argues that the parents lost on all the principal issues as to the suitability of NL as a school for J. The Tribunal's comments about acoustic conditions were merely a reference to a side issue of no significance at the hearing. It is said that the parents are now seeking to elevate this very subsidiary matter into a challenge to the clear and adequately founded decision of the Tribunal to dismiss the appeal against Hampshire's decision to specify NL as the appropriate school for J. Mr. Greatorex further submitted that, on examination of the parties' written material before the Tribunal there was no clearly identified issue as to the ability of NL to provide acoustically suitable conditions for the teaching of J and certainly no specific allegation that NL was unsuitable in this respect. Moreover, he argued, the references to "recommended" or "required" standards of acoustic provision are meaningless in the context, since the Building Bulletins referred to in this respect only have force of law in relation to the requirements of the Building Regulations for the construction of new schools or the significant alterations of existing ones. NL is not a new school or subject to any relevant alterations. Mr. Greatorex urged upon me that the real issue for the Tribunal's decision was whether J needed educating in a specialist school with specialist teachers and in company with other pupils with similar difficulties; he argued that the parents lost before the Tribunal on that issue. Its observations on acoustics were, he urged, superfluous to the decision and the decision would have been unobjectionable even if it had said nothing on the issue at all.
16. Each party adduced before me evidence, to supplement the Tribunal's decision, as to what they contended occurred at the hearing with regard to the issue of acoustics. This is not the first time that I have had to express dissatisfaction (initially expressed as "surprise") that these Tribunals do not have facilities for providing an authoritative transcript of hearings before them, in order to obviate disputes such as this: c.f. W v Leeds City Council [2004] EWHC 2513 Admin at paragraph 24. I do so again. The situation was made more difficult in this case since Hampshire's evidence on this point, in answer to evidence produced on the parents' side in September 2005, was only served in the week before the hearing in this court, in response to an application to the Court, issued by the parents, to debar the use of such evidence by Hampshire. In the end, I decided to admit the evidence as to the events at the hearing, but declined to admit expert evidence from either side, produced since the Tribunal hearing, which sought to examine the acoustics question in more detail. It seemed to me that it was inappropriate for the court to entertain a dispute about such matters, on material that was not available at the time of the decision under challenge, particularly in circumstances in which Hampshire's evidence on the subject had only materialised in the week before the hearing of the appeal.
17. It seems clear to me that each party acknowledged before the Tribunal that the acoustic suitability of the teaching environment for J was of significance. The references to this aspect are numerous and some of them are set out above. The Tribunal was, in the end, to conclude that J needed to be taught in a teaching environment offering good acoustic conditions, meeting any "required" standards for acoustic conditions for the teaching of children with hearing impairment.
18. It seems from the new evidence that the Council's representative produced "a document relating to some acoustic measurement at [NL]…". She says that she brought it with her because a colleague had dealt with a previous case where similar issues had arisen and felt that if she had a copy to hand it might be "helpful". She says that this was not because Hampshire had been expecting acoustic measurements to be a "pivotal" issue. It is to be noted that it is not said in this lady's evidence that it was not expected to be an issue at all. In the light of the passages cited from the Tribunal documents above, that could not be said. The issue of acoustics obviously did arise and Hampshire produced the document accordingly. When so produced, the parents' witness, Mr. Shaw a teacher with expertise in the field, stated that the document did not indicate that the classrooms at NL met the recommended standards for hearing impaired pupils. What were the recommended standard and the basis of any "requirement" of standards appear to have remained unclear. This led the Tribunal to order that the acoustic conditions must meet any "required" standards.
19. It is clear that the outcome of the case was that J had to be taught in good acoustic conditions catering properly for his hearing needs. It may be obscure whether in using the word "required" the Tribunal meant required by law or required by J. Given the amendment that the Tribunal made to Part 3 of the statement in this respect, the Tribunal would have had to be satisfied that the school at which J was to be placed provided the right sort of acoustic conditions for him whether it was old, new or modified and whether it fell to be judged on this under the Building Regulations or not. It seems clear to me from its conclusions that it was not in fact so satisfied with regard to NL School.
20. Accordingly, the Tribunal's decision to dismiss the parents' appeal as to part 4 cannot stand and must be quashed.
21. Mr. Friel argues that, in that event, the appeal must be sent back for a full re-hearing before a different Tribunal. Mr. Greatorex submits that such a result would be most regrettable, given the fact that the parents had lost on most of the issues pertaining to the suitability of the NL School and such a re-hearing would give the parents an unjustified "second bite at the cherry". Having sympathy with Mr. Greatorex's argument in this respect, at the end of the hearing, I heard the parties on a suggestion from me that it might be appropriate to direct a limited remission to the Tribunal to decide the acoustic issue alone. Mr. Greatorex was content to accept this if I found against him on the main point. Mr. Friel, however, submitted that this would be a novel course and, on instructions, he told me that he could not agree to it, however, attractive it might appear to the court in such circumstances. Mr. Greatorex was unable to give me any comfort in the authorities to support such a limited remission to a new tribunal.
22. I have decided therefore that the case should be remitted in its entirety to a fresh tribunal. However, it seems to me that that Tribunal could not be criticised if it took a robust approach to the issues requiring to be decided by it, having regard to the many issues already resolved, without criticism, by the Tribunal from which this appeal is brought. These tribunals are specialists in their field and I would expect that they are likely to be able to take the view that the principal issue for its resolution is whether the acoustic conditions at the NL School meet J's requirements or not. They may well decide that other evidence can properly be limited to up-dating the information as to J's hearing, vision and educational progress (in the broad sense) since the last Tribunal decision.
23. For these reasons, the appeal is allowed and I shall order this case to be re-heard (with such limits as it may consider proper in all the circumstances) by a fresh tribunal.