QUEEN'S BENCH DIVISION
THE ADMINISTRATIVE COURT
B e f o r e :
|THE QUEEN ON THE APPLICATION OF L||(CLAIMANT)|
|LONDON BOROUGH OF WANDSWORTH||(DEFENDANT)|
|LONDON BOROUGH OF WANDSWORTH||(CLAIMANT)|
|MS L AND MR H||(DEFENDANTS)|
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MR C SHELDON (instructed by the Legal Services of the London Borough of Wandsworth) appeared on behalf of the DEFENDANT in application CO/734/2006
MR C SHELDON (instructed by the Legal Services of the London Borough of Wandsworth) appeared on behalf of the Applicant in application CO/741/2006
MR D EDWARDS (instructed by Ormerods, Croydon CR0 9XN) appeared on behalf of the DEFENDANT in application CO/741/2006.
Crown Copyright ©
"(1)[F] is 6 years old. He has a diagnosis of autistic spectrum disorder. After a period at Balham Nursery he was started at his parents' expense on an Applied Behavioural Analysis programme at home. This has been in place for 18 months at a cost of £45,000. [F] has made slow progress but has not shown the regression which had been a major concern in the past. The regression started during the latter period in nursery. He started to lose speech, began squawking, became solitary and took himself off to the shed. He started to smear faeces and began spitting. His diet and compliance were all affected. [F] has self stimulatory behaviours which affect his ability to focus and learn. These increase in an unstructured environment and without intensive support.
2. [F]'s parents want him to attend Rainbow School, an independent special school, which uses an ABA approach. The LEA contend that to educate [F] in accordance with his parents' wishes would amount to an unreasonable use of public expenditure given that in their view his needs can be met within maintained provision. They have named The Vines School where [F] would be educated in an Autistic Resource Base. To aid transition the LEA have agreed to fund one term of ABA up to a maximum of £10,000. It was unclear from the inter-departmental correspondence whether this was agreed to meet [F's] needs or to improve the chances of winning at the Tribunal. In any event this provision has been agreed.
3. Ms Arcus described the provision, teaching methods and expertise available at The Vines and Ms Schumacher corroborated this evidence. The school employs an eclectic approach to teaching. Ms Loughran was very unhappy about the discipline at The Vines. However, their witness Mr Urani was satisfied that the provision was good but unsuitable for [F]. [F] requires a consistent level of 1:1 support. It is the teaching model of intensive one to one which will ensure compliance and stop self stimulatory behaviours.
4. As part of an extensive re organisastion of special provision The Vines School is no longer admitting pupils with MLD as their only difficulty and the ARB will increase to 20 pupils. The school will close in Summer 2007 and the pupils will have to be transferred to other schools. Because of building works there will be two phases of transition with the process being completed by 2010. Ms Arcus stated that the concerns raised about the closure had not impacted on the teaching and no staff had left and denied morale was low. However, a letter of protest written by the staff to the LEA voiced grave concerns about the effect of the proposals on staff and pupils alike.
5. The Tribunal heard that the costs of a placement at The Vines was a nil cost other than the provision of transport and the initial ABA funding. If the Tribunal ordered extra support, this would be an additional cost. The cost of a placement at Rainbow School is £42,750 per annum. [F's] parents will arrange the transport at their expense.
6. There was helpful agreement on parts 2 and 3 of the statement and other changes were left to the Tribunal to decide. The Tribunal heard evidence on the need for ABA as the sole teaching method appropriate for [F] and the need for an intensive 1:1 teaching method and environment with an emphasis on diminishing self stimulatory behaviour and encouraging [F] to communicate and to be less passive. Both the LEA and [F's] parents were of the opinion that Occupational Therapy would benefit [F] but the LEA wanted his needs to be assessed."
"A: The Tribunal concluded that The Vines was not a suitable placement for [F]. The Tribunal concluded that for provision to be suitable it had to be capable of being delivered in the near future and for a substantial period beyond that. As stated in the LEA reorganisation plans parents have a legitimate expectation that their child's placement will complete a phase of their education in the same school.
B. Given the very slow rate of [F's] progress within a highly structured ABA environment the Tribunal was very concerned that the transition period that would be necessary in order for [F] to adjust and progress in a new environment would only be achieved by the time that The Vines School was due to close.
C. Once The Vines School was closed and the current pupils were transferred into The Paddocks School there was no guarantee that the Autistic Resource Base would continue when under the management of the new school. The proposals did not guarantee the continuance of a separate Autistic Resource base in the new school. In addition the profile of the new school involves a change of category to a SLD school. Inevitably the upheaval and change involved would be detrimental to a child who in all probabilities had already been difficult to settle.
D. [F] has complex needs. His learning style is very passive and requires a high degree of one to one to prevent regression, diminish self stimulatory behaviour and to encourage him to communicate rather than retreat into his world. Given the degree of specialism required by [F], the Tribunal was not satisfied that anything other than a specialist resource base for pupils with autism would be suitable.
E. The Tribunal did not conclude that ABA was the only method of teaching that was appropriate for [F] but it was satisfied that a 1:1 support in a specialist environment was necessary. The Tribunal was also satisfied that the provision of support should be offered by teachers and assistants with a track record of meeting the needs of pupils with ASD. An eclectic mix of teaching methods may however not provide the consistency of approach required. The provision at The Vines was not suitable because it did not offer this consistency of approach and the teaching environment was not set up to offer teaching on a 1:1 basis.
F. The Tribunal concluded that [F] is in danger of regression and is likely to lose the skills he has acquired. This conclusion is based on his history where he has regressed within the wrong teaching environment.
G. The purpose of education for [F] is to minimise the opportunities for self stimulatory behaviour which are a major barrier to his learning. This behaviour increases when there is not a sufficient level of adult support.
H. The Tribunal concluded that the success of [F's] school placement and any progress he makes will be dependent on a very close working relationship between home and school. [F] requires a consistency of approach and his parents will be vital in enabling this to happen. They have enormous experience of supporting [F] and this will no doubt continue. [F's] parents were not happy with the provision at The Vines and the relationship between them and the LEA is very strained. This was partly due to what they considered to be misinformation about a previous possible placement. Their view was not helped by an exchange of e mails between LEA personnel that suggested that if the LEA put in the transitionary ABA support that they were more likely to win the Tribunal. This suggested that [F's] needs were secondary rather than uppermost in the LEA'a decision making. A relationship of trust will be very important. It is the question of consistency and the management of [F's] education that potentially will be at risk when the responsibility for the provision shifts from the governing body of The Vines to a different headteacher and governing body at The Paddocks. Inevitably there will be disruption to staffing and the transition process will in all probability be detrimental to [F].
I. The Tribunal concluded that the provision at the Rainbow School was appropriate. The LEA already funds children at the school and Mr Urani was satisfied that the school was suitable.
J. The Tribunal amended the statement in accordance with these findings and the agreement between the parties and the changes are set out in the Annex attached."
"In our view, the time has now come to accept that a mistake of fact giving rise to unfairness is a separate head of challenge in an appeal on a point of law, at least in those statutory contexts where the parties share an interest in co-operating to achieve the correct result. Asylum law is undoubtedly such an area. Without seeking to lay down a precise code, the ordinary requirements for a finding of unfairness are apparent from the above analysis of the Criminal Injuries Compensation Board case. First, there must have been a mistake as to an existing fact, including a mistake as to the availability of evidence on a particular matter. Secondly, the fact or evidence must have been 'established' , in the sense that it was uncontentious and objectively verifiable. Thirdly, the appellant (or his advisers) must not have been responsible for the mistake. Fourthly, the mistake must have played a material (not necessarily decisive) part in the tribunal's reasoning."
(1) ABA was not the only method of teaching that was appropriate for F.
(2) One-to-one support in a specialist environment was necessary.
(3) Support should be provided by teachers and assistants with a track record of meeting the needs of pupils with ASD. (4) An eclectic mix of teaching methods may not provide the required consistency of approach.
(5) The provision at the B school was not suitable because (i) it did not offer this consistency of approach and (ii) the teaching environment was not set up to offer teaching on a one-to-one basis.
In view of the first finding, the consistency of approach referred to in the fourth finding cannot simply mean the use of ABA.
"Mr Wong requested that Mrs Norgate, Head of SEN Assessment, attend as a third witness for the LEA. This application was not allowed. Mrs Norgate could have represented the LEA or attended as a witness in place of one of the other witnesses who attended."
The Tribunal has a wide discretion and part of its function is to be fair to both parties.
"In the course of the hearing the parties shall be entitled to give evidence, to call witnesses...."
The right of the parties to give evidence is there set out as a separate right to the right to calling witnesses. I refer to the decision of Elias J in H v Gloucestershire County Council  ELR 357, although that was not a case where the education authority was represented by counsel. This issue raised an important and interesting question as to whether, where an authority is represented by counsel, it can nonetheless itself give evidence by an appropriate officer in addition to calling the two witnesses also provided for by regulation 34. I would have welcomed the assistance of counsel for the Tribunal, had I had to decide this point.