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
		04/04/2007

Stanley Burnton J :

Introduction

1. This is an appeal by K against the decision of the Special Educational Needs and Disability Tribunal dated 6 October 2006 made pursuant to section 326 in Part IV of the Education Act 1996.
2. The Tribunal's decision, and this appeal, relate to the education of Ms K's son L, who is severely disabled. He is now aged 12. The most substantial dispute before the Tribunal, and in substance the real dispute before this Court, concerns the school he is to attend for his secondary education. The dispute in its essence is not uncommon. His mother believes that he needs to be educated at a non-maintained private residential school, namely Treloar School, which offers distinct advantages over a non-residential placement. The cost of such a place is very substantial indeed: some £75,000 a year. The Second Respondent, the Local Education Authority, had proposed that L attend its special school, Lonsdale School, a specialist school that had been highly praised by Ofsted. The cost to the authority of his place at Lonsdale would be relatively negligible. It is scarcely surprising, therefore, that the authority would prefer him to be educated at Lonsdale. The case is not unusual in another respect too, in that the number of experts providing reports for L's mother, the appellant, exceed those doing so for the LEA.
3. The relevant part of the decision of the Tribunal is set out in the Appendix to this judgment. For ease of reference, the Tribunal's bullet points have been replaced by numbered paragraphs.

The facts

4. The facts relating to L are clearly and adequately set out in the Tribunal's decision. I add only that no one who has read the interim report of Dr Carr, the consultant paediatric neurologist at Great Ormond Street who was concerned with him, could not have the greatest sympathy for him and his mother, whose devotion to and support for him merit respect and commendation.
5. The question for the Tribunal was whether L's special educational needs would be met at Lonsdale; if not, it was common ground that they could and should be met at Treloar.

The live issues before the Tribunal

6. The issues before the Tribunal affecting the choice of placement were the implications of the considerable distance between L's home and Lonsdale, and the consequential considerable travel time involved; the availability of appropriate therapy, and the question whether he needed a 24-hour curriculum, which of course could only be provided in a residential placement.

The grounds for challenging the Tribunal decision

7. The challenge to the decision of the Tribunal is essentially a reasons challenge: did the Tribunal give adequate reasons for its decision? Allied with this is L's mother's contention that the Tribunal could not, on the evidence before it, reasonably have found that L did not require a 24-hour curriculum, or, what is very much the same contention, that there was no evidence to justify the finding that he did not require such a curriculum.
8. There is an express statutory requirement that the Tribunal give reasons for its decision. It is to be noted, however, that the requirement, in regulation 36 of the Special Educational Needs Tribunal Regulations 2001, is that they be "in summary form". That being so, it is not to be expected or required that they should be of the length and detail appropriate to a judgment of a court following a disputed substantive hearing. The authorities were considered and the requirement was described by Beatson J in his judgment in R (L) v LB Waltham Forest [2003] EWHC 2907 (Admin), [2004] ELR 161, at paragraphs 13 and 14, which it is unnecessary for me to set out. I would, however, caution against seeking to break the requirement down into a number of specific mandatory requirements. Ultimately, the question for the Court is whether the reasons given by the Tribunal demonstrate that they addressed the substantial issues before them, that they took into account the relevant evidence and contentions, and show why they reached their decisions on those issues.

Travel

9. It is by no means unusual for children with special educational needs who need education at a specialised school to have to travel a considerable distance to and from school. The reason is not hard to find. There are not enough special schools to be able to find one within what for other children would be a reasonable travelling distance.
10. There was an issue as to how long the journey would take. That was resolved by the Tribunal's finding that it would take about an hour, which is not challenged. L's mother's evidence was to the effect that the journey would be unduly fatiguing and stressful. Diane Blit, the Occupational Therapist instructed on behalf of L's mother, in a report dated 19 June 2006, said, under the heading "Transport":

"1. L will always need to be transported in his wheel chair when travelling in education transport as it would be unsafe for carers to lift him in and out. He would need to travel in his wheelchair with seating system so he is in a good safe position.

2. Ms K reported that L suffered from dehydration last summer. If he were to travel for any length of time it would be much more comfortable if he were in an air conditioned vehicle.

3. One of the documented findings regarding L's condition is that stress and anxiety often leads to an increase in spasticity. If travelling long distances caused L stress than this should be taken into consideration when considering school placement."

The dehydration presumably arose from L's difficulty in drinking large amounts of fluid at any one time: see page 9 of Ms Blit's report. It can be seen that Ms Blit's view relating to travel was very qualified and conditional ("if it causes stress"). She did not advise that travel to Lonsdale School was inappropriate.

11. Sara Taylor, the physiotherapist instructed for L's mother, in her report dated 2 July 2006, stated:

"I am concerned that L has been offered a secondary school, Lonsdale, which is 33 miles away. This entails a 3 hour return journey, which would be detrimental to a child with L's condition. It has been shown that L's musculo-skeletal system deteriorates when he is not well managed and a journey of this length would only serve to increase both his muscle tone and his fatigue levels, which in turn would leave him unable to fully benefit from the education this school would offer."

Her assumption of the duration of the journey was, given the Tribunal's finding, mistaken, by a considerable amount. Clearly, this affected the reliability of her conclusion: indeed, on one view, her evidence was inapplicable to a journey time of 2 hours.

12. Dr Carr addressed this issue in her letters of 10 May and 20 June 2006. In the letter of 10 May 2006 to L's mother's solicitors (in reply to a letter of 4 April 2006 which unfortunately is not in the court bundle), she said:

"I do apologise for my delay in replying to your letter of 4/04/06. I understand you are acting for L's mother, Ms K who is appealing against the contents of L's Statements of Special Educational Needs. One of her concerns is the travel time that L will endure if he attends Lonsdale School. You asked for my opinion on the likely physical impact of this journey upon L in his general well-being and his ability to access the curriculum.

L was last seen in our clinic 22/02/06 by my colleagues Dr D Howard, Dr S Bhate and Ms L Katchburian. The report to which you refer followed an assessment by Dr J Sergent and colleagues on 7/09/05.

From para 16 of the appeal I note that if L does not attend Lonsdale School he would be facing a journey of 1 hour 15 minutes on a Monday morning, Wednesday evening and trips to and from the school on Thursday and Friday. I agree this represents significant travelling time, which could indeed be arduous, tiring and possibly distressing to L. However the travelling conditions, the company L enjoys during the journey and his ultimate experiences in Lonsdale School (as to how stimulating and enjoyable he finds the environment) will affect his ability to cope with the journey. It is indeed possible that the whole experience will be unduly fatiguing for L but this is not guaranteed. I note that Ms K is in favour of residential placement at Treloar School where the travel would but be an issue and which offers an educational package that is not available at Lonsdale."

In her letter of 20 June 2006 she stated:

"Following my report of 10/05/06 I have had further discussion with Ms K, L's mother and we are ourselves discussed things over the telephone 13/06/06. The main issue remains the potential detrimental effects of the long journey that L will require if he is to attend Longsdale School as is currently planned.

It is certainly Ms K's opinion that this will be the case. Clinically L has abnormal muscle tone and prolonged periods of immobility will have a negative impact on this; increasing his tone and causing discomfort. As a result he requires extra stretches after periods of immobility. Given the time that is going to be spent in travelling to and from school there is additional concern that he will not receive his usual stretches before or after school, which again will negatively impact, on his overall muscle tone.

Furthermore L has oromotor difficulties. Long journey times could compromise his inability to keep up with his fluid demands.

He needs frequent small amounts of oral fluid but in the past has become dehydrated in the hot weather.

At the end of the day I would have concerns at L facing such a long journey on a regular basis. I think it has to be considered very carefully along with his very specialist educational needs. A residential placement may well be better suited to L's needs."

13. Dr Carr produced an interim report dated 20 September 2006, clarifying at the request of the tribunal that L's hereditary spastic paraplegia is indeed a degenerative condition, and explaining the implications of that for him. She did not expressly address the question of travel to and from school, although she was of course aware of it as an issue of concern to L's mother.
14. The LEA's evidence included a joint report by a children's physiotherapist and a children's occupational therapist from the Hertfordshire Partnership NHS Trust dated 1 September 2006. They had read Sara Taylor's report, but made no comment on the question of travel to and from school.
15. In its statement of its case, the LEA pointed out that "although each child has different needs many pupils who travel a similar distance to Lonsdale School have similar complex medical needs".
16. According to L's mother's witness statement, Judith Huddart, the clinical director of Treloar School, gave evidence to the effect that long journeys had a negative impact on children with conditions similar to L.
17. The Tribunal dealt with this issue at paragraph E(2), from which it appears that Mrs White, the headmistress of Lonsdale School, gave evidence about the greeting and therapeutic input of children on arrival.
18. In my judgment, the Tribunal were right, and certainly entitled, to find that Dr Carr had been pressed on this issue, which was the only subject of her letter of 20 June 2006, and to give particular weight to her opinion, both by reason of her qualifications and the fact that she had not expressed a view which L's mother clearly wished her to endorse. Given the mistaken basis of Sara Taylor's opinion, and the terms of Ms Blit's, it was unnecessary for them to address them expressly. It is evident that the Tribunal had considered the reports of Mr Taylor and Miss Blit, which they referred to generically immediately after the heading "Tribunal's Conclusions with Reasons" and specifically at paragraph D(3). The reason for the Tribunal's conclusion on this issue is clear: its reasons were adequate and not irrational.

Therapy

19. The issue under this head was whether the therapy required by L would be available for him at Lonsdale. It should have been a peripheral issue. It was raised on appeal on the basis that the Tribunal's approach demonstrated that their decision was flawed in that it was not based on the evidence before them, and inadequate reasons were given.
20. The LEA would be under an obligation to provide L with the therapy specified in his statement as determined by the Tribunal. If the relevant NHS authority did not provide that therapy, the LEA would have to commission it and pay for it out of its resources. (It is not suggested that the therapy specified in L's statement has not been provided, although a failure to provide it would not be a ground of appeal, but of judicial review to enforce the LEA's fulfilment of its obligation.) If there is a dispute as to the therapy to be specified in the statement, it must be addressed by the Tribunal and sufficient reasons given for its conclusion. Here, however, it is not suggested that the Tribunal erred as to the amount or type of therapy required, but only as to whether it would in fact be provided. It seems to me that such an issue should rarely be significant, given the nature of the LEA's obligation.
21. The evidence before the Tribunal was to the effect that the therapy required by L would be very considerably more (some 20 times more) than that provided to any other pupil at Lonsdale. The Tribunal did specify that therapy.
22. Mr Davies said:

"At the Lonsdale School, the School has no control over the therapy support provided for the students and therapy support is allocated on the basis of the greatest need, meaning that all students receive only a share of the available 'cake' and there would be no guarantee that L would obtain the daily therapy management that he needs. To date, this level of daily physical management support has not been specified by the North Herts NHS Trust and provision made is only at the discretion of the Trust."

23. The joint reports of the NHS Trust therapists did not suggest that the requisite therapy could not be provided at Lonsdale. However, Sara Taylor expressed the view that the NHS would not provide the necessary therapy at Lonsdale.
24. The Tribunal's finding is in paragraph E(1), from which it appears that they received evidence about the provision of therapy at Lonsdale which impressed them. It appears from paragraph F that the Tribunal appreciated that it might be necessary for the LEA to buy in additional therapy. In my judgment, given the nature of the LEA's obligation, and the absence of any suggestion that it would refuse or fail to meet its obligation in relation to therapy, the Tribunal's reasons were adequate and their conclusion is not open to criticism.

Residential placement

25. This issue, as described in the Appellant's skeleton argument, is whether L required a 24-hour postural management programme to maintain his physical condition, which in turn was necessary if he was to benefit from his educational (in the sense of academic) provision. The issue had been put rather differently in her amended statement of case to the Tribunal, which stated:

"10. The appellant also believes that L requires a 24 hour curriculum so that he has an opportunity to transfer learnt provision to after school hours. Due to the complexity of his profound needs, L has a particular need for constant stimulation and provision which will not be available other than through a waking curriculum."

The case here was that a 24-hour curriculum was necessary for L to put into practice what he had learnt. See too paragraph 18:

"24 hour curriculum

The Appellant seeks a waking day curriculum for L on the grounds that a day placement will not enable him to increase his independence skills. She refers to paragraph 15 of Mr. Davies' report where he advises that L

"requires a much more aggressive and consistent physical management programme" in light of his diagnosis.

The Appellant submits that L can only obtain the full benefits and consistency of such a programme if it is provided through a 24 hour curriculum. She also submits that the FLAME programme at Treloar School is the most appropriate programme to provide the degree of physical management recommended by Mike Davies."

26. However, Ms K's amended statement of case predated the expert reports on which she chiefly relied before the Tribunal. These led to the contention that a 24-hour curriculum was necessary being based more on therapy needs.
27. The Tribunal had its first hearing of the appeal on 11 July 2006, when it learned that his condition might be degenerative, and adjourned the appeal. The chairwoman directed that a full report on his condition should be obtained. As a result, Dr Carr wrote her interim report dated 20 September 2006. The report described L's condition, which is "almost certainly a progressive degenerative condition" and his difficulties. Dr Carr said:

"Given L's multiple and complex needs, I would recommend that he has a comprehensive management program that should be delivered by experienced paediatric therapists including a full physiotherapy program with regular review. Deterioration cannot be entirely avoided but an active program will optimise L's abilities and may ameliorate the rate of deterioration."

28. The Tribunal placed heavy reliance on Dr Carr's opinion, as can be seen from section D of their decision. On behalf of L's mother, Miss Lawrence submitted that Dr Carr's opinion was not inconsistent with those of the other experts instructed on behalf of her behalf. I do not accept that submission. In my judgment, the Tribunal's finding that Dr Carr was not recommending a 24-hour curriculum cannot be faulted. Dr Carr's opinion had to be read against her earlier letters, and it merited all the more weight because it was given against a background of her knowing of L's mother's preference for Treloar, which was a residential placement which did not involve travel, a matter that, as the Tribunal pointed out, had been previously pressed on Dr Carr. As noted above, in her letter of 20 June 2006, Dr Carr had stated that a residential placement might be better suited to L's needs, but had gone no further. It was significant that she did not modify this highly qualified statement in her interim report.
29. The Tribunal preferred Dr Carr's view to that of the other experts instructed on behalf of the appellant. Mike Davies had said:

"There are three factors that the writer has noted about the School in relation to L's SEN:

a. No student at the School is Statemented to receive any therapy intervention and the therapy provided to the School is 'at the discretion of the North Herts NHS Trust'. This will not be sufficient for L and he will require an intensive daily programme that is closely monitored by the physiotherapists and occupational therapists because of the higher than usual risk of physical deterioration because of L's condition.

b. L also requires a very high level of speech and language therapy and this also needs to be written into his Statement at a far higher level than he is likely to receive on a routine level at the Lonsdale School.

c. The writer supports Ms K's request for a waking day curriculum for the reasons previously outlined: L will benefit from the therapy and educational programmes throughout the waking day and this will assist the necessary physical management programme that has been described to reduce L's physical deterioration. The partial residential provision at the Lonsdale School does not appear sufficient and does not allow for the more extensive independence programmes that L requires – there are no facilities for the students to cook for themselves, for example, and the time available, of course, is much less and is limited to 2 nights per week only."

In his conclusions, he said:

"72. Consequently, L's physical independence does become the most important aspect of his educational needs because if his physical functioning regresses, so does his access to the curriculum.

75. The fear is that where there is not a very detailed and intensive physical management programme in place with close monitoring by the therapy services, there will be the risk of creeping deterioration because the staff with the main responsibility for looking after L will not have the level of knowledge or skill to know how to best manage L from minute to minute during the whole of the educational day.

79. L needs to attend a school where the therapy staff are employed directly by the school and who deliver their programmes largely in the classrooms, alongside the teachers and with programmes fully integrated into the educational curriculum.

80. L will not just benefit from the waking day curriculum, he requires it.

81. At the Lonsdale School, the School has no control over the therapy support provided for the students and therapy support is allocated on the basis of the greatest need, meaning that all students receive only a share of the available 'cake' and there would be no guarantee that L would obtain the daily therapy management that he needs. To date, this level of daily physical management support has not been specified by the North Herts NHS Trust and provision made is only at the discretion of the Trust.

82. The Lonsdale School does not offer a waking day curriculum and this cannot meet this aspect of L's SEN."

The italics are in the original.

30. The NHS Trust's therapists, in their letter of 1 September 2006, stated:

"4. E – Physiotherapy Needs

We cannot comment on the FLAME programme at Treloar School but would agree that L needs a consistent approach to his physical management.

We would also agree that during adolescence, L will require close monitoring of his musculo skeletal system.

The information provided by the Developmental Vision Clinic at the Wolfson Centre suggested that strategies for L's visual perceptual skills were unlikely to improve.

6. H – Physiotherapy Input required to meet the above needs

We would agree that L requires a 24 hour postural management programme incorporating specialist seating, standing and sleeping equipment. This will facilitate the maintenance of L's joint ranges and muscle length.

I -hours of physiotherapy provision needed to meet above

A daily exercise and activity programme that is aimed at maintaining and developing L's gross motor control could incorporate sitting, mobilization and hips and spine, rolling and crawling. This should be devised by a qualified physiotherapist but could be carried out by non-teaching support staff."

This was not, however, a recommendation of a residential placement or 24-hour curriculum.

31. Diane Blit, in her report of 19 June 2006, referred to the degenerative nature of L's condition. She referred to his seating needs, and said:

"The initial main priority from the occupational therapy perspective would be to review and alter L's seating system. As outlined above, L does have complex needs and from discussion with both Mrs Carter and Ms K, it has proved difficult to meet his seating needs over the past few years. There have been long periods of delay with getting new seating and there appears to have been nothing done to date with altering his present seating system. It would be much easier for L's seating needs to be monitored and altered quickly if he were in a specialist school where there was an on-site technician who was able to work with the therapists to alter this as and when necessary. Without good seating not only is L's posture likely to deteriorate this will have an impact upon his general functioning and so therefore will affect how well he can access the educational curriculum."

32. Sara Taylor, the physiotherapist retained on behalf of the appellant, said:

"L needs to work through an intensive program of postural management and physiotherapy exercises throughout his school day and, furthermore, throughout the 24 hour day. …"

33. Miss Lawrence criticised what she suggested was the reason given by the Tribunal, in paragraph D(3), for rejecting the views of Mr Davies, Miss Blit and Miss Taylor, namely that their reports had been written without the information contained in Dr Carr's letter of 20 September 2006, as irrational. I consider the point being made by the Tribunal was that those experts did not have the benefit of Dr Carr's more precise description of L's condition and her view that a 24-hour curriculum was not necessary. The last sentence of paragraph D(3) of the decision is an accurate comment. Paragraph D(4) gives sufficient reason for rejecting Mr Davies's evidence. Quite what the point made in the third sentence of paragraph D(5) is not entirely clear, but the last sentence of that paragraph is clear, as is paragraph D(6). (Incidentally, manual handling, which is addressed in paragraph D(5), did not relate to the need for a 24-hour curriculum so that L could put into practice what he learned during lessons, the issue raised in the Appellant's statement of case).
34. I do not consider that the reasons given by the Tribunal for rejecting the need for a waking day curriculum to have been inadequate. As I have indicated, they were entitled to place greater weight on the opinion of Dr Carr than on those of Mr Davies and Ms Blit and Taylor. I see nothing irrational in their reasons or their finding.

Other issues

35. Miss Lawrence's helpful skeleton argument includes grounds of appeal that the Tribunal failed to consider expert evidence and failed to give adequate reasons. Those grounds have been considered above in relation to the substantive issues before the Tribunal on which their decisions have been challenged, and do not need to be addressed separately.

Conclusion

36. For the above reasons, the appeal will be dismissed.
39. Appendix

The relevant parts of the decision of the Tribunal

….

(h) The outstanding issues in respect of Part 3 were:

Page 5 – under the heading "Educational setting" the preliminary paragraph referring to the need for a 24 hour curriculum

Page 5 – speech and language therapy, and whether the wording of paragraph 1 was sufficient

Pages 6/7 – whether the wording of paragraphs 9 and 10 re occupational therapy were sufficient and appropriate

Pages 7/8 – the wording of paragraphs 13, 14, and 15 re physiotherapy

Page 8 – paragraph 17 re personal, social and emotional development insofar as it refers to the need for a 24 hour curriculum

There was no agreement with regard to Part 4, Mr Read accepted that Treloar School could meet L's needs but argued that Lonsdale School could equally well do so and the costs of a placement at Treloar School would be an inefficient use of public placement because it did not offer a 24 hour curriculum, appropriate therapeutic input was not guaranteed, and the travel arrangements would prejudice L's ability to access the curriculum.

Facts

1. L is 11 years 6 months old. Until July 2006 he attended Cherry Tree Primary School, which is a maintained mainstream School. It was agreed that he would need to attend a Special School for his secondary education but because no agreement had been reached about placement, he has not returned to school this term.

2. Until recently it was understood that L suffered from four limb cerebral palsy. It is now known that he suffers form a complicated x linked hereditary spastic paraplegia, which is said by Dr Carr to be "almost certainly" a progressive degenerative condition. Additionally he has a subluxing left hip.

3. L also suffers from optic atrophy with impaired visual acuity, a small left convergent squint, and a manifest jerk-style nystagmus. He has previously been seen by a behavioural optometrist who prescribed glasses but he has not been able to tolerate wearing these.

4. L has cognitive impairment and his attainments are limited. When tested by Mr Davies in May 2006, at Chronological age 11 years 1 month, L had an age equivalence of 6 years 7 months on the British Picture Vocabulary Scale, was at the 0.4 percentile on the Children's Category Test, and below 0.1 percentile on both the Word Reading and the Word Comprehension Tests. Mr Davies described L's cognitive profile as an enigma because, although he does well in imaginative story telling, he does poorly in following the most basic of functions.

5. L is a good communicator and his speech is intelligible to careful listeners. His spoken language can make him appear to know more than he has understood. His receptive language is poor and he has a language processing delay. His receptive language is poor and he has a language processing delay.

6. At Cherry Tree Primary School L received

• Input from the Combined Children's Occupational Therapy and Physiotherapy Service, which is run by Hertfordshire Partnership NHS Trust. This input included some home visits, some school visits, some telephone liaison, and some therapy sessions at the Children's Peace Centre.

• Speech and language therapy input from the LEA's Mainstream SALT Service, which included individual sessions with L and liaison with school staff.

• Support from two Teaching Assistants and 3 hours per week specialist teaching

7. The LEA has named Lonsdale School which is a purpose built school for children with physiological and neurological impairments. It has 77 pupils on roll with a total of 14 teaching staff and 32 full time Learning Support Assistants. It operates small teaching groups approximately 8 pupils organised in age related departments, each group being supported by one teacher and 2 assistants. Other relevant provision includes:

Paediatric nurses oversee medical needs

Physical needs are managed using a series of hoists, slings and other handling equipment, with staff being trained in the use therefore, and maintenance carried out by in-house technical support staff.

Speech and language, occupational and physiotherapy are all provided by specifically allocated therapists employed by the local HNS Child Development Centre. Provision includes (1) 3 Speech and Language Therapists who work 2 days per week each at the school, and a Nursery Nurse who works full time on speech and language support work (2) 2 Full Time Equivalent Physiotherapists and 1.5 Full Time Equivalent Physiotherapy assistants and (3) 2 Occupational Therapists who work 3.5 days per week in total.

The School has its own swimming instructor, music therapist and counsellor

4 residential units which are integral to the school, and which allow for all Key Stage 3 and 4 pupils to stay over 2 nights per week, if they wish to do so. The residential facility is supported by 10 support workers.

In addition to the residential provision there are a number of opportunities for extended curricular activities.

8. If L attended Lonsdale School he would require transport. He has to travel in his wheelchair and requires adult support. The AA route planner gives the distance as 24.7 miles by its chosen route and specifies a journey time of 56 minutes.

9. Ms K wants L to attend Treloar School, which is a non-maintained residential special school for pupils with physical disability but whose ability range varies from those who are above average to those who have severe learning difficulties. If L attended this school he would do so as a weekly boarder. He would be allocated to a group of pupils who follow the Function Language and Movement Education (FLAME) programme, which the school has developed for motor disordered students aged 7-13.

10. The cost of a placement at Treloar would be 75,019GBP including transport. The cost of a 2 night residential placement at Lonsdale is 422.66GBP, with no additional transport costs, as existing transport could be used at no additional cost to the LEA.

Tribunal's Conclusions with Reasons

We carefully considered the written evidence submitted to the Tribunal in advance and the evidence given to us at the hearing. We also took account of the Code of Practice and the relevant sections of the Education Act 1996 and the Special Educational Needs and Disability Act 2001.

Our conclusions are;

A. L's special educational needs are severe and complex. It is quite obvious that he needs to be in a special school for his secondary education.

B. In respect of Part 2:

(1) The dispute with regard to literacy was a narrow one. There was agreement that L did not benefit from the phonic approach. There was no agreement as to whether this should be recorded in Part 2. The LEA argued that it had never been used and so it was not necessary to include the point, whilst Mr Davies put forward the view that since it is Government policy to use the phonic approach the issue needed to be addressed. We accepted Mr Davies point, taking the view that it is better to be explicit about anything which may lead to confusion.

(2) The issue on mobility was also a narrow one. It was accepted that L cannot self propel his manual wheelchair but can operate an electric one. We concluded that the disputed sentence under mobility should read "He is unable to self propel his manual wheelchair but can operate and electric one; he requires hoisting for all transfers from either type of wheelchair".

C. In respect of Part 3, dealing with matters other than the 24 hour curriculum:

(1) We accepted that it would be appropriate to refer specifically in Part 3 to the fact that L benefits from using a dictaphone to record work. This is an acknowledged fact and there is no reason to suppose that this will change in the near future

(2) We also accepted that, since L does not benefit from the phonic approach to reading and does need a whole word approach, this should be recorded in Part 3

(3) The initial issue with regard to speech and language provision was the specificity of provision. At the hearing Mr Read conceded (as is recorded in Appendix A) that individual speech and language therapy of one hour per week would be appropriate although he was at pains to say that there would be a full speech and language assessment once L attended Lonsdale, and therefore the provision might change over time. We could see the need for a full reassessment. One of the difficulties of this case is that L has been in mainstream education, which has inevitably meant that he has not received therapeutic input from on-site therapists. The models of delivery are likely to be different in a specialist setting and this, in turn, means that any provision specified now will have to be kept under review. We were satisfied that the proposal put forward by Ms K, and accepted by the LEA, was appropriate for the immediate future. We therefore decided that paragraph no 1 on page 5 should stand

(4) The issues with regard to Occupational Therapy centred around seating and the need for the OT to monitor this. We accepted Ms K's suggestion that there should be a specified 24 hours of face to face contact over the next year and we therefore decided that the first sentence of paragraph 10 on page 7 should stand. Whilst acknowledging the need for liaison we did not accept that it was appropriate or necessary to be prescriptive about this in a well resourced and special school

(5) It is obvious that L requires ongoing physiotherapy. The suggestions contained in paragraph 13 on page 7 are reasonable.

(6) Paragraph 14 on page 7 is mainly about liaison and maintenance. We did not accept that it was reasonable to be prescriptive about these issues in a well resourced special school. We did, however, accept the point about the standing frame since it is apparent that this is of great significance to L. We therefore concluded that paragraph 14 should read "L's physiotherapy programme needs to include (1) direct physiotherapy contact of at least one hour per week over a 39 week school year and (2) an hour per day in the standing frame.

(7) In respect of paragraph 15 on page 7 we did not accept that there should be any reference to the FLAME programme. It was conceded by Ms Lawrence that this is just one way of delivering therapy, and it was not part of Ms K's case that delivery had to be by this technique. In respect of the bullet points, we took the view that these were far too prescriptive and that whoever delivers the physiotherapy programme must be allowed sufficient flexibility to prioritise whichever of L's extensive difficulties he/she considers requires the most attention at any one time, using techniques best suited to deal with those difficulties

D. We did not accept that L needs a 24 hour curriculum for educational reasons, although we did take the view that he would benefit from an extended curriculum. Our reasons for taking this view were as follows:

(1) Much was made of the degenerative nature of L's condition. We took the new information seriously. Although Dr Carr is unable to be authoritative on the issue of whether or not the condition is degenerative, she uses the term "almost certainly" and our working assumption was, therefore, that it is a degenerative condition. Dr Carr also noted that historically L had degenerated physically, and she commented that deterioration cannot be entirely avoided. We also accepted this to be the case, but had to bear in mind that, historically, L had been education in a mainstream school without specialist staff on site, and without all necessary specialist equipment. Also, it is only very recently that the hereditary condition has been diagnosed and therefore previous therapeutic input did not take potential degeneration into account. We therefore took the view that it is necessary to be cautious about drawing inferences from past experience.

(2) Dr Carr recommended "a comprehensive management programme that should be delivered by experienced paediatric therapists including a full physiotherapy review". This does not suggest the need for a 24 hour curriculum

(3) The reports of Mr Davies, Ms Bilt (OT) and Ms Taylor (Physiotherapist) all support a 24 hour curriculum but all were written without the information given by Dr Carr in her letter of 20.9.06. Whilst that letter suggests a working assumption that the condition is degenerative, it does not support the level of concern expressed by those individuals.

(4) Mr Davies gave oral evidence in the light of Dr Carr's most recent letter. He made the point, which we accepted, that for L to learn effectively he needs to be in a physical condition which will enable this. He linked this with a residential placement but we were not persuaded that this is the only way of ensuring that L is in a suitable physical condition to benefit from educational input. We accepted the evidence of Ms White that it is standard special school procedure to ensure that children are given therapeutic input on arrival at school, so as to ensure optimum physical condition.

(5) Ms Huddart gave evidence that staff at Treloar regarded manual handling as an integral part of the provision throughout the waking day. Ms White made the same point with regard to Lonsdale School staff, including those involved in the residential unit. The essential issue here is whether what we are looking at is consistency of approach, or educational provision. We concluded that we are looking at the former, and we were not persuaded that L has an educational need for specialist handling and therapeutic input throughout the waking day

(6) We accepted the points made by Mr Clarke and Ms Huddart, that L needs an extended curriculum to enable him to learn activities of daily living, and to ensure that he participates in social activities which he is not able to instigate for himself. Again, we were not persuaded that a 24 hour curriculum was the only way of achieving this and considered that opportunities to develop his social skills, life skills and independence skills by way of regular overnight stays would be another way of doing so.

E. Irrespective of the residential schooling point, it was argued on Ms K's behalf that Lonsdale School is unsuitable for L because of (1) limited therapeutic input and (2) the travel arrangements. We rejected both points for the following reasons:

(1) Lonsdale School is a specialist, purpose built, school. The therapeutic input is clearly an integral part of the school programme and not a "bolt –on" as asserted by Ms Lawrence. We were satisfied that, although many therapists are employed by the HNS, the school is able to control the level and type of input provided, with an additional therapy being acquired either through the NHS or privately, if required. The criticisms made in the reports of the experts commissioned by Ms K are unfounded in this respect. Whatever criticisms may have obtained in respect of the therapeutic provision in the mainstream primary school, there is no basis for transferring them to Lonsdale Special School

(2) The LEA stated that its transport department had advised on a journey time of 45-60 minutes from/to Lonsdale School. Bearing in mind the AA travel information we thought that the lower time was optimistic, but we rejected Ms K's estimate of 90 minutes. It is likely that the journey will take about an hour, and we had no reason to believe the LEA would breach guidelines about suitable travel times. It was apparent from the disclosed correspondence that Ms K and her representatives pressed Dr Carr on this issue, but the most she would say was that it was "possible" that the travel would be "unduly fatiguing". We were impressed by Ms White's description of how children are greeted and given therapeutic input on arrival, and were satisfied that the school has great experience in dealing with such matters. We did not accept that, even allowing for the possibly degenerative nature of L's illness, he would be in substantially different a situation than other children attending the school. We also had in mind that, if L stays at the school for 2 nights a week, transport would not be an issue on the days when he stays.

F. Ms K expressed a preference for Treloar School under Section 9 Education Act 1996. The LEA accepted that the school could meet his needs and we also accepted that to be the case. The principle arguments advanced on Ms K's behalf were that Lonsdale School could not meet his needs. For the reasons already canvassed we did not accept that contention. The costs discrepancy is huge and Ms Lawrence very promptly conceded that it could not be bridged even if (as may be the case) the LEA has to pay for some additional, specific, physiotherapy and OT therapy.

Order

Hertfordshire County Council is to leave Part 4 of the Statement as it is (i.e. naming Lonsdale School) but it is to amend Parts 2 and 3 as follows:

Part 2

In accordance with Appendix "A" (wherein no significance now attaches to the varying typeface) but subject to the following amendments:

•    On Page 2 under the bullet point "Literacy" the sentence commencing "In the light of the difficulties L has in developing his literacy skills" should continue "a whole word approach, not a phonetic approach should be used" and the rest of the sentence as drafted should be deleted.

•    On Page 3 under the bullet point for "mobility", after the sentence ending "use his right hand on occasions" the words "He is unable to self propel his manual wheelchair but can operate an electric one; he requires hoisting for all transfers from either type of wheelchair" should be inserted.

Part 3

In accordance with document "A" (wherein no significance is now attached to the varying typeface) but subject to the following amendments;

• On page 5 under the heading "Educational Setting" deletion of the wording as drafted and substitution of the words "L requires to be educated in a special school for children with physical disabilities and which offers an extended curriculum addressing (1) social and emotional development by participation in sports and leisure activities offering opportunities for social interaction with peers and adults, and (2) development of skills in activities of daily living, including the possibility of regular overnight stays to provide the opportunity for such skills to be practised in a relevant context"

• On page 6 under the heading "education" paragraph 7, the addition of a new second bullet point reading "L needs to be taught Literacy using a whole word approach not a phonic one"

• On page 6 in what is currently the third bullet point in paragraph 7 deletion of the words "for comprehension work" and substitution of the words "to record his work including comprehension work"

• On page 7 paragraph 14 should be replaced by the words "L's physiotherapy programme needs to include (1) direct physiotherapy contact of at least one hour per week over a 39 week school year and (2) an hour per day in the standing frame"

• On page 7 paragraph 15 should be amended to read "The development of L's fine and gross motor skills is an educational objective. L requires an intensive programme of postural management and physiotherapy exercises"

• On page 8 paragraph 17 should end with "…need to be put into place". All subsequent words should be deleted.