England and Wales High Court (Administrative Court) Decisions

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

		DATE: 31/07/2007

INTRODUCTION

1. This is an Appeal under Section 11 of the Tribunals and Enquiries Act 1992 on points of law only against a Decision ("the Decision") of the Special Educational Needs and Disability Tribunal ("the SENDIST") dated 30 March 2007. The Appellant appealed under Section 326 of the Education Act 1996 ("EA 1996") to the SENDIST in relation to the contents of a Statement of Special Educational Needs ("the Statement") made by the local education authority, Poole Borough Council ("the Council") for her son, Tyler. Tyler was born on 4 September 1998.

STATUTORY FRAMEWORK

2. By Section 312 in Chapter I of Part IV of EA 1996 a child has "special educational needs" in the circumstances there described. Section 317 imposes duties in relation to pupils with special educational needs. By Section 321 a local authority is to exercise its powers with a view to securing that they identify the children for whom they are responsible who have special needs and for whom it is necessary for them to make special educational provision. Pursuant to Section 323, where they consider a child may fall within Section 321, they are required to make an assessment of his needs. If as a result of an assessment under Section 323 the authority decides that it is necessary for them to make special educational provision for the child, then, by Section 324, they must make, and maintain, a Statement.
3. Section 324 provides for the contents of a Statement. It must give details of the educational needs, and of the provision required to meet them, and specify the type of School which the authority considers appropriate to meet those needs, and name any School which is considered to be appropriate. Regulations and a Code of Practice pursuant to Sections 313 and 314 prescribe in detail the form and contents of a Statement. Once a Statement is made, the authority has an obligation to arrange the specified special educational provision.
4. Section 326 enables appeal against the contents of a Statement. An appeal is to the SENDIST. Regulations apply in relation to the SENDIST, the Special Educational Needs Tribunal Regulations 2001, SI 2001/600.

THE STATEMENT

5. Part 2 of the Statement set out Tyler's special educational needs. It described his behaviour, his education, his communication skills, his medication, and the difficulties he was experiencing. It stated that (1) Tyler was assessed by the Asperger's Assessment Team in September 2005, the conclusion being that Tyler did not meet the diagnostic criteria for Asperger's, but does have attentional difficulties and significant oppositional behaviour; (2) Tyler was assessed by the Occupational Therapy ("OT") Service in June 2006, but it was not possible to carry out any practical activities with Tyler, because he would not cooperate; and (3) Tyler was referred to Guy's Hospital ("Guy's") regarding whether he has an Autistic Spectrum Disorder ("ASD").
6. In relation to the referral to Guy's, the Statement recorded that (1) Tyler was extremely hyperactive and argumentative; (2) it was not possible to complete the assessment; (3) they were therefore unable to give him a diagnosis; but (4) it was recommended that Tyler needed "a combination of treatment approaches, medication plus visual, very clear, highly structured approach that would be used with a child with autism"; and (5) the assessment confirmed a diagnosis of Hyperkinetic ODD Conduct Disorder (ADHD with Oppositional Behaviour).
7. Part 3 of the Statement specified the objectives which the special educational provision for Tyler should aim to meet, and the special educational provision which the Council considered appropriate to meet the needs specified in Part 2 and to meet the objectives specified in Part 3.
8. Part 4 of the Statement specified the placement. The type of School considered by the Council to be appropriate was a "day school for behaviour, emotional and social difficulties". Longspee School ("Longspee") was named as the School.
9. Part 5 of the Statement related to non-educational needs; and Part 6 to non-educational provision. The latter included OT.

THE APPEAL TO THE SENDIST

10. The appeal to the SENDIST was against Parts 2, 3 and 4 of the Statement. The challenge to Part 2 was that its contents did not fully describe Tyler's needs which call for special provision. A number of matters were specified for addition. These included that the first paragraph should include: "Tyler is a very high risk child. He has a very severe kinetic disorder and other features within the autistic spectrum", the latter being set out in the letter of Dr Gillian Baird ("Dr Baird") of Guy's dated 4 September 2006.
11. The challenge to Part 3 was that it was not specific enough in relation to the amount of speech and language and OT assistance Tyler should get and whether this is to be delivered by an Occupational Therapist, Speech and Language Therapist or a member of support staff.
12. The challenge to Part 4 was by way of strong opposition to Longspee. It was contended that Tyler required a school experienced with autistic spectrum difficulties, rather than a day school for children with behaviour, emotional and social difficulties ("EBD"). Reference was made to Dr Baird's letter dated 13 June 2006. Marchant Holliday School ("MHS") was put forward as the most appropriate placement for Tyler.
13. Tyler's mother's Case Statement supplemented the challenges with respect to Parts 2 and 3, including referring to Tyler needing a 24 hour waking day curriculum. As regards Part 4, MHS was no longer put forward, but St John's School ("St John's"), with a 24 hour residential setting, was. Further concerns were expressed about Longspee.

THE SENDIST HEARING

14. Tyler's mother was represented at the SENDIST hearing on 14 March 2007 by her then Solicitor; and the Council by their Education Officer for Special Education Needs, Marie Dames ("Ms Dames"). Tyler's mother gave evidence supported by Mike Davies ("Mr Davies"), Educational Psychologist, and the Head of St John's. The witnesses for the Council were Mr Bell, the Head of Longspee, and Ms Chamberlain, the Council's Principal Educational Psychologist.
15. There was voluminous documentation before the SENDIST. This included Reports from Dr Baird, Mr Davies, Ms Margo Sharp ("Ms Sharp"), Speech and Language Therapist, Ms Debra Onslow ("Ms Onslow"), Speech and Language Therapist, Dr R Coppen ("Dr Coppen"), Consultant Paediatrician, and Dr F C Ballinger ("Dr Ballinger"), General Practitioner.

THE SENDIST AND THE FACTS

16. The SENDIST in its Decision set out the facts in 19 numbered paragraphs. These included the following:-

"6. Tyler had been prescribed 10 mg of Ritalin on waking together with 25 mg of Clonidine and 18 mg of Concerta (a slow release medication for ADHD). At 11 am and 3 pm he received 25 mg of Clonodine. After 7 pm he received 100 mg of Clonidine and 3 mg of Melatonin. Ms Way told us that on the day of Mike Davies' assessment she gave Tyler an extra dose of 10 mg of Ritalin at 11 am in order to enable him to complete the assessment. Mr Davies told us that he was familiar with assessing pupils on Ritalin. Ms Dames pointed out that the assessment was very different from that with Margo Sharpe."

"7. One of the key issues between the parties was Tyler's primary presentation. Put simply Mr Davies argued that Autistic Spectrum Disorder was the most informative diagnostic indicator for Tyler and should inform the educational provision. The LEA refused to include this in Tyler's Statement of Special Educational Needs."

"12. Mr Bell told us that within the Sylvan Unit, which educated pupils at Longspee in Years 1, 2 and 3, there was a teacher who was completing a PHD in speech and language and communication behaviours. There was a small number of staff with qualifications relating to short course on ASD. The staff had always worked with pupils with ASD. Since Mr Bell joined the school in 2001 the number of pupils on roll with ASD had increased and now, out of 32 pupils, 8 had ASD. There was weekly ongoing training for staff and inductions for all staff to aid the understanding of EBD."

"13. There was training for staff at Longspee on ASD and the curriculum was offered through a highly structured approach with the use of visual timetables. Two of the six pupils in the class proposed for Tyler had ADHD whilst 4 had behavioural and social difficulties. All were of average cognitive ability. There were 3 teaching staff for each class, with one qualified teacher and two teaching assistants. A Speech and Language Therapist attended the school for half a day a week and offered direct support to pupils and staff. The whole approach of the school was to encourage socially acceptable behaviour. Learning social skills was integrated throughout the curriculum. Mr Bell confirmed that the school offered behavioural strategies suggested by Mr Davies in his report together with clear expectations of the child."

"15. Where occupational therapy was recommended the school did work with the OT service."

"16. Mr Bell had a strong belief that Longspee could meet Tyler's needs."

THE SENDIST'S REASONS AND CONCLUSIONS

17. The Decision sets out the SENDIST's Reasons and Conclusions at "A" to "U" inclusive. At "A" they stated that they were persuaded by the evidence of Dr Coppen, including the following:-

"Although Tyler has a number of Asperger characteristics his primary difficulty seems to be the pattern of attention deficit hyperactivity disorder.

Assessment by the Asperger Team concluded in fact that Tyler had some Asperger characteristics but that he did not meet the full criteria for Asperger's syndrome, that his pattern of behaviour was that of an attention deficit hyperactivity disorder with oppositional features."

18. At "B" and "C" the SENDIST refer to Dr Baird, whom they describe as "an ASD specialist", and to statements of hers, including the following:-

"Tyler may well have features of an autism spectrum disorder had we been able to complete all of our assessment but it is not the most important single diagnosis to give him. He needs a combination of treatment approaches, medication plus the visual, very clear, highly structured approach that one would use with any children with autism and that is what has already been found."

19. At "D" the SENDIST concluded:-

"The Asperger's Assessment Team in 2005 had, we noted, clearly stated that Tyler did not meet the full criteria for a diagnosis of Asperger's. In view of the overall medical evidence we did not conclude that Tyler's primary presentation stemmed from autism. We agree with the description in the statement that Tyler has a very severe hyperkinetic disorder and other features within the autism spectrum. This is taken directly from Dr Baird's description of Tyler."

20. At "E" the SENDIST said:-

"We studied Mr Davies' evidence with care. We considered that, despite Mr Davies' experience in assessing pupils on Ritalin, his assessment and thus report would have been affected by the unprescribed dose of medication given to Tyler prior to the assessment. This was a situation over which Mr Davies had no control. In addition, Mr Davies accepted himself that it was more usual for a team of professionals to diagnose Asperger's Syndrome. As we have taken the description of Tyler's difficulties from Dr Coppen and Dr Baird we have not included further reference to the causal link between ASD and Tyler's behaviours suggested by Mr Davies. For this reason we have not included a reference to Pathological Demand Avoidance."

21. At "K" to "O" the SENDIST stated:-

"K. We were not persuaded on the balance of probabilities of the need for a waking day provision for Tyler. That Tyler gravitates to an inappropriate peer group after school is not an uncommon characteristic amongst children but this does not warrant a residential placement. We note that Margo Sharpe stressed the importance of a waking day curriculum but this was not a recommendation of Ms Onslow who had the benefit of 3 observations of Tyler as well as access to the reports. Mr Davies' original report included a recommendation for a waking day curriculum but his analysis is predicated on the basis that Tyler has a diagnosis of Asperger's Syndrome which he does not. Mr Davies accepted that it is usual for a team to undertake a diagnosis of ASD. Dr Baird recommended the methods of structure timetable and a high staff/pupil ratio and a 24 hour consistent environment on the basis that she thought it would be beneficial. We preferred Dr Coppen's evidence, a Consultant Paediatrician, whose clinic has had regular and longstanding oversight of Tyler's case, and who made no recommendation for a waking day curriculum.

L. In view of the overall evidence we considered that Debra Onslow gave an accurate description of Tyler's needs and we have included this in our order. We are persuaded by her recommendations which included highly specialist input from a multi-disciplinary team who are highly skilled in the area of complex communication disorder, ASD sensory programmes and proactive behaviour support strategies. She also recommended that he be educated in a school with small classes and a high level of adult support where staff are experienced in the management of challenging behaviour and ASD and there are opportunities to provide a consistent approach across the waking day. We consider from the evidence given to us that Longspee could offer this provision.

M. Longspee is a school for pupils with emotional and behavioural difficulties which we conclude is Tyler's primary difficulty. Longspee's admission criteria lists pupils who have significant and persistent behavioural emotional and social difficulties and have complex behavioural, social and/or emotional difficulties which may result in him being unable to access the curriculum in a mainstream environment. We conclude from the evidence recited above that Tyler fits this criteria.

N. We agree that he has ASD characteristics but we do not find, in view of the medical evidence and evidence from Rachel Reid, Educational Psychologist, that he needs a school for pupils with Asperger's Syndrome.

O. There was training for staff at Longspee on ASD and the curriculum was offered through a highly structured approach with the use of visual timetables. Mr Bell confirmed that the school offered behavioural strategies suggested by Mr Davies in his report together with clear expectations of the child."

22. At "P" the SENDIST considered speech and language therapy. They noted that Ms Sharpe's recommendations had altered between her first and second Reports; and referred to Ms Onslow's Report. At "Q" they stated that they were reasonably satisfied that OT could be provided where required at Longspee, and that they were satisfied that a multi-disciplinary approach was in place there. At "R" they stated that "consistency of approach across the waking day" was important for Tyler, rather than one setting. At "S" and "T" they referred to other Reports that persuaded them that Tyler's needs could be met at Longspee.
23. Finally, at "U", the SENDIST said:-

"In sum we found Longspee to be appropriate. It could offer the appropriate consistency during the day and work with other agencies to ensure consistency of approach after school. We found no requirement for a waking day curriculum as such. We did not find St John's to be appropriate. ..."

THE SENDIST'S ORDER

24. The SENDIST ordered that the Statement be amended in accordance with an attached document. This does make amendments to Part 2. It does not, however, make amendments to Part 3. As regards Part 4, the type of school was expressed as being "Special school for pupils with emotional and behavioural difficulties", and named as being Longspee.

THE APPEAL TO THIS COURT

25. The appeal to this Court was conducted on the basis of Amended Grounds. These are expressed under four headings: (1) Irrationality, in nine respects; (2) Impermissible use of own expertise; (3) Inadequate findings, in four respects; and (4) Lack of Specificity in Part 3.
26. In relation especially to the oral evidence at the SENDIST hearing concerning Ritalin, Mr Friel, for the Appellant, sought to put in Witness Statements from Tyler's mother and from Mr Davies. If these were admitted, Mr Wilson, for the Council, sought to put in a Witness Statement from Ms Dames.

LEGAL PRINCIPLES

27. The potentially relevant legal principles are uncontroversial. They include that (1) the SENDIST must not use its own expertise without giving notice to the parties; (2) the SENDIST must give reasons which (i) deal with the substantial points that have been raised, so that the parties can understand why the decision has been reached, and (ii) indicate the reasoning process by which it has decided to accept some and reject other evidence; and (3) the Statement must be sufficiently specific that it is clear what is necessary in the individual case.

IRRATIONALITY

28. The first ground of alleged irrationality is premised on the claim that the SENDIST found that Tyler should attend the Sylvan Unit ("the Unit") at Longspee. On that basis the complaint is that anything other than the short term future is being disregarded, as Tyler could be at the Unit for only one term. Mr Friel submitted that the SENDIST did not make any findings beyond one term.
29. If indeed the SENDIST were confining themselves to the Unit and one term that would obviously be woefully inadequate. However, they were manifestly doing nothing of the sort.
30. The School the SENDIST named was Longspee, not the Unit. The Unit is part of Longspee. The Unit caters for the School's Years 1, 2 and 3. Tyler at the time of the SENDIST hearing and decision was coming towards the last term of Year 3.
31. The SENDIST's findings of fact, especially at paragraphs 12, 13 and 16, are consistent only with Longspee as a whole, not exclusively the Unit. The same applies to the SENDIST's Conclusions and Reasons, especially at "L", "M", "O", "Q" and "U", and to their Order.
32. The suggestion that the SENDIST was not looking beyond Year 3 at Longspee is in my judgment nothing short of preposterous. It is not a remotely tenable reading of the Decision as a whole.
33. The second ground of so-called irrationality is that the SENDIST did not accept evidence from Mr Davies that Tyler could now be diagnosed as suffering from an ASD, Asperger's Syndrome. Mr Davies did give that evidence. The SENDIST did not accept it. They were not, however, bound to do so. There was contrary evidence on the matter. See the Decision at "A" to "D" inclusive.
34. The SENDIST then go on in "E" to consider the evidence of Mr Davies. There is in my judgment nothing irrational in "E". Nor is there any basis for the suggestion that the SENDIST used their own expertise. Again, that is not a tenable reading of the Decision as a whole.
35. The third irrationality ground, added by amendment, relates to Ritalin. Again, this is concerned with Conclusion "E". The fourth irrationality ground also relates to Ritalin.
36. In my judgment, no irrationality is disclosed. What really seems to be suggested about the Ritalin is that the SENDIST failed to take into account, or misunderstood, the oral evidence of Mr Davies and the mother, and made a mistake of fact about the dosage and/or its effect.
37. The short answer is that they did not. They found at paragraph 6 of the findings of fact that Tyler's mother on the day of Mr Davies' assessment gave Tyler an "extra dose" of Ritalin. This is reflected in Conclusion "E" where it is described as "unprescribed". They did not find that there was a "double dose", the expression originated by Mr Davies. They appear to have understood the totality of the evidence on this, written and oral, perfectly well, and such significance as it had.
38. There is no sufficient basis in the Witness Statements (unsupported by Tyler's mother's then Solicitor) for concluding that they ignored or misunderstood the oral evidence from Tyler's mother and from Mr Davies. There was undoubtedly an extra dose. It was apparently unprescribed. It did have some effect, as Mr Davies acknowledges.
39. In any event, the SENDIST had to consider Mr Davies' evidence in conjunction with all the other evidence. Neither he nor anyone else could have been under the impression that his diagnosis was uncontroversial. His evidence appears to have been duly and fairly probed. The fact that it was not all accepted does not mean that it was misunderstood or forgotten.
40. The fifth alleged irrationality ground relates to the speech and language therapy (her sphere of expertise) and other evidence of Ms Sharpe, referred to in particular by the SENDIST at their findings of fact 6, 8 and 11 and at their Conclusions "K" and "P", in conjunction with the speech and language therapy evidence of Ms Onslow, and also the evidence of Mr Davies and Dr Baird. Mr Davies was evidently impressed by Ms Sharpe. The SENDIST were seemingly less impressed. There is nothing irrational in that, especially given the changes (at paragraphs 4.1 and 4.4) in the versions of her Report. The SENDIST gave adequate reasons as to why they did not accept (from Mr Davies and Ms Sharpe) a diagnosis of ASD. In any event, on speech and language therapy, the evidence of Ms Onslow is of more significance than that of Ms Sharpe.
41. The sixth irrationality ground relates to speech therapy. The SENDIST duly addressed the need for adequate access to speech therapy, especially at their Conclusions "L", "P" and "Q", and were satisfied that it would be provided at Longspee. There was nothing irrational about that conclusion.
42. The seventh irrationality ground relates to the appropriate levels of OT. There was a conflict of evidence which the SENDIST resolved in their Conclusion "Q". Irrationality is not even arguable.
43. The eighth irrationality ground takes one back to Dr Baird, but no nearer to anything that could fairly be described as irrationality on the part of the SENDIST.
44. The ninth irrationality ground relates to consistency of approach across the waking day, with which the SENDIST dealt in particular at paragraphs "K" and "R", and the linked questions of whether a boarding placement was appropriate, which Dr Coppen thought not, and Dr Baird did not say was necessary, and what non-educational provision is required as part of an overall, not exclusively education, package. Again, there is no irrationality in the SENDIST opting for consistency across settings and rejecting a residential placement. All the irrationality challenges are, in my judgment, hopeless.

USE OF OWN EXPERTISE

45. The second basis of challenge is an allegation that the SENDIST, in relation to the evidence both of Mr Davies and of Dr Coppen, used its own expertise on the issue of Ritalin. There is, as I have already indicated, no basis, in my judgment, in the Decision, or elsewhere, for supposing that this is the case.

ADEQUACY OF FINDINGS

46. The third basis of challenge alleges that there are a number of issues with respect to which the SENDIST made no, or no adequate, findings. Four such issues are identified.
47. The first relates to direct speech therapy. The findings to which I have already referred on this subject are in my judgment adequate.
48. The second relates to OT. The SENDIST made a finding of fact at paragraph 15 of its Decision that where OT was recommended Longspee does work with the OT service; and came to the conclusion, at "Q" to which I have referred. This, in my judgment, is adequate.
49. The third relates to the evidence of Dr Baird, as compared with that of Dr Coppen. However, neither Dr Baird nor Dr Coppen stated that Tyler has a diagnosis of ASD. Dr Coppen ruled out Asperger's, and, therefore, countered Mr Davies who did conclude Asperger's. Dr Baird does not conclude ASD, but did conclude that there were "features within the autistic spectrum". The SENDIST then imports Dr Baird's diagnosis into "D" of their Conclusions. There is, in my judgment, nothing inadequate in this approach.
50. Moreover, the issue of whether or not Tyler has ASD has to be considered in the context of what Dr Baird said about this: "He may have features of an Autistic Spectrum Disorder but this is not the most important single diagnosis to give him". The SENDIST was right to focus on the point, in Dr Baird's words, that Tyler "needs a combination of treatment approaches, medication plus the visual, very clear, highly structured approach that one would use with any children with autism and that is what has already been found". In accepting Longspee as the suitable placement for Tyler, the SENDIST recognised the ability, in their view, of Longspee to make that provision, regardless of the label requiring that provision.
51. Fourthly, criticism is made of the SENDIST's Conclusion "M". In my judgment, it is not deficient.

EBD

52. Before coming to the fourth and final head of challenge in the Amended Grounds of Appeal, it is necessary to consider Mr Friel's oral submissions that the SENDIST failed to give reasons for an EBD placement rather than an autism placement. This criticism presupposes that this is an either/or issue. However, the SENDIST did not so regard it, on the totality of the evidence before them. They gave their reasons for this and came to a rational conclusion, consistent with Dr Baird's Reports.
53. A School does not have to be entirely EBD or entirely autistic. What matters is the right approach for the particular pupil, who may indeed exhibit features in both respects. A School may be able to cope with both. The SENDIST having considered the evidence believed that the Council was right that this was the case in respect of Longspee.
54. The SENDIST were the judges of that. Indeed, there was nothing to indicate that Longspee would be likely to adopt the wrong approach in Tyler's case. The SENDIST's findings at paragraphs 12 and 13 are especially pertinent in this connection, as are Conclusions "O", "P" and "U".

SPECIFICITY

55. The fourth and final basis of challenge is that the Statement in Part 3 as approved by the SENDIST was not specific as regards Tyler's need for intervention, albeit that in Part 4 it was accepted that he needed a special school for pupils with emotional and behavioural difficulties. The Amended Grounds of Appeal themselves lack specificity as regards what specificity is lacking in the Statement, but particularisation has been provided in Mr Friel's Skeleton Argument, at paragraphs 57-60.
56. This point is well founded. The Conclusions in the Decision should have been, but have not yet been, carried over into amendments to the Statement, as has been done with regard to Part 2.
57. However, lack of specificity does not vitiate the SENDIST's Conclusion on placement and the other real issues before the SENDIST. This discrete point leads to a remission to the SENDIST solely to provide more specificity in Part 3 of the Statement. I order the case to be remitted to the SENDIST for them to amend Part 3 of the Statement so as to reflect Conclusions "H", "L", "N", "O", "P" and "Q", if within 14 days the parties are unable to agree the amendments necessary for that purpose.
58. The remission in my judgment should be to the same SENDIST, with liberty to apply should this prove to be impracticable or subject to delay.
59. Since I circulated this Judgment in draft Mr Friel has made further written submissions. I am, however, not persuaded that a remission cannot be on a limited basis. Nor am I persuaded that remission on a limited basis is inappropriate to this case. The circumstances here, failure in the attachment to the Order to carry over by way of amendments to Part 3 of the Statement the SENDIST's Conclusions, are in my judgment very different from a situation where the decision in relation to Part 4 falls to be quashed, as in JR v Hampshire County Council (2006) ELR 335. I am further not persuaded that the circumstances are analogous to the situation where the Reasons for the Conclusions are inadequate, as in VK v Norfolk County Council [2005] ELR 342.