QUEEN'S BENCH DIVISION
London WC2A 2LL
B e f o r e :
(Sitting as a Deputy High Court Judge)
|THE QUEEN ON THE APPLICATION OF ALLOWAY||Claimant|
|LONDON BOROUGH OF BROMLEY||Defendant|
WordWave International Limited
A Merrill Communications Company
190 Fleet Street London EC4A 2AG
Tel No: 020 7404 1400 Fax No: 020 7831 8838
(Official Shorthand Writers to the Court)
Mr P Oldham (instructed by LB Bromley) appeared on behalf of the Defendant [Miss A Rogers appeared for judgment]
Crown Copyright ©
"3. Purpose of Report
3.1 I have been asked by Mr and Mrs Alloway and Sinclairs Solicitors to provide an opinion on the current education in place for Stephen and whether this is meeting his needs. This addendum report should be read in conjunction with my previous report for Stephen, dated 30th May 2006. This earlier report contains an outline of Stephen's special educational needs and the provision he requires to meet these needs.
4.1 Stephen has a diagnosis of autism, learning disability and epilepsy.
4.2 Stephen is in the care of Robinia Care, placed in a residential house in Durlands Road, Horndean, Hampshire. Stephen is very settled in this household which has three other residents and has lived there since August 2004.
4.3 When I saw Stephen in May 2006 he was attending the Robinia Care Day Resource Centre (The Grove) which provides recreational activities. He was also attending a course at Highbury College; however, he no longer attends this College as they have not been able to provide for his special educational needs.
4.4 Since he left school, July 2004, Stephen's parents have been striving for him to receive continuing appropriate education. They have identified a provision they regard as suitable, namely Hesley School and Village but this has not been agreed to by Bromley Council.
5. Current Situation
5.1 Since September 2007 Stephen has been attending South Downs College, a large Further Education facility based in Hampshire, with a dedicated special needs department. Perusal of the College's recent inspection report indicates it to be an outstanding College and one which is very inclusive.
5.2 Stephen has been placed on the 'Promoting Independence Skills' course which is at 'pre-entry' level. This course delivers 15 hours a week of tuition, consisting of nine lessons. The areas covered are pre-entry life skills comprising:
- Safety awareness
- Self advocacy
- Out in the community
- Options from music/drama/sport
5.3 Mr Darby told me that the College has around 100 learning support assistants (LSA) and a team of 45 teaching assistants. Stephen is taught by qualified teaching staff and supported by LSAs. The policy is not to allocate one LSA to a student but to be flexible with staff whilst ensuring the most suitably experienced LSAs are working with Stephen. The LSAs were described to me by Mr Darby as having general skills and experiences. However, I also understand from Mr Darby that the College's teaching assistants would have more specialism in terms of specific subjects and disabilities. The student's initial assessment determines whether they are allocated general LSA support or a teaching assistant. Stephen's assessment, completed by Ms Collinson, determined that he should be allocated LSA support . . ."
"8.1 The educational provision currently in place for Stephen represents an improvement in comparison to when I saw him last. Stephen appears comfortable and settled within the College environment. The course programme is providing him with a better level of stimulation and his focus upon and participation with learning activity is improved. However, this provision is failing in a number of important areas and these must be addressed if the provision can be thought of as being adequate in meeting Stephen's needs. It provides a basis which needs to be greatly enhanced. My recommendations below outline how this needs to happen."
"1. To develop his motivation to use the language, verbal and non-verbal, that he has and continue to increase this.
2. To enable Stephen to make choices and express his needs and desires.
3. To enable Stephen to make links between the skills he learns and how they relate to life experiences.
4. To develop Stephen's basic skills in literacy, language and numeracy and to apply these to day to day experiences, choices and activities.
5. To continue to support and develop Stephen's independence skills."
"Additional provision required to enhance the current provision to enable it to meet Stephen's needs is as follows:
1. A language and social communication programme.
This needs to be advised and delivered by a specialist speech and language therapist, skilled and experienced in autism.
The therapist will need to assess Stephen's requirements and draw up a suitable programme. Advice and strategies will need to be given by the therapist to all teaching and support staff, as well as Stephen's carers, to ensure the programme is fully integrated across Stephen's waking day. This will need regular monitoring…
… Given the College's difficulty in obtaining speech and language therapy services, and to ensure this provision is gained immediately and is delivered consistently, I recommend that an independent provider is used.
2. An individualised literacy programme, which is planned according to Stephen's specific requirements, delivered to Stephen in a one to one situation by a teacher who is experienced and skilled in teaching literacy to children and young people with autism. This teaching will be individualised to Stephen to ensure a complete match of the teaching to his needs and to maximise his attention and eye contact to the taught tasks. ….
Stephen will therefore require 2½ hours teaching support a week for literacy to allow two individual teaching sessions and planning/liaison time.
3. An individualised numeracy programme, which is planned according to Stephen's specific requirements, delivered to Stephen by a teacher who is experienced and skilled in teaching literacy to children and young people with autism. This teaching will be individualised to Stephen to ensure a complete match of the teaching to his needs and to maximise his attention and eye contact to the taught tasks….
Stephen will therefore require 1½ hours teaching support a week for numeracy to allow for an individual teaching session of an hour and planning/liaison time.
4. An ICT assessment to identify Stephen's requirements to ensure access to ICT within his hardware and software to ensure Stephen can access ICT in the ICT room and in his classrooms. Training will need to be provided to teachers and support staff in the use of this hardware and software….
- 5. Stephen's full time in-class support needs to continue however the staff need to be teaching assistants, rather than the current learning assistant provided. These teaching assistants should be well trained and highly experienced in working with young people with autism and learning disability…
… Stephen should be allocated no more than three different members of staff in this role. These staff members will need to be released together (non-contact time) to ensure they can liaise with the speech and language therapist on a regular basis and to discuss and plan together how they work with Stephen and his progress towards targets set. They would therefore need to be released to carry out such planning and liaison on a fortnightly basis for 40 minutes as a minimum.
6. As well as the circulation of the individual learning plan, there should be an outline of strategies and approaches circulated to all staff working with Stephen, which should include advice from the speech and language therapist.
7. The educational provision made for Stephen needs to be extended beyond July 2009 to ensure he continues to receive such a programme, including the above recommendations, for the full period of his entitlement to education.
8. Given the complexity of Stephen's needs and the importance of now delivering the provision he requires, ensuring he makes good progress, I recommend that either an educational psychologist or an advisory teacher specialising in autistic spectrum disorders and learning disability, is involved at least twice a year and on request of the College, to provide on-going advice and monitoring. Funding will need to ensure that this can happen without difficulty."
10.1 Stephen requires an educational programme that is at least three years of duration if he is to achieve progress against the objectives outlined above and achieve the minimal goals. The programme currently being delivered at South Downs is only a two year programme. Therefore the current provision in this respect is not able to meet this requirement. This needs to be addressed.
10.2 Should the current provision made by South Downs College be enhanced through the above recommendations in their completeness, addressing 10.1, then I consider that Stephen will be provided with an adequate educational programme. The assessment currently being carried out by Connexions will need to ensure this is provided in full.
10.3 Should the above recommendations not be implemented, the provision in its current form will remain inadequate in meeting Stephen's needs and will fail him. In such a case an alternative would continue to need to be sought, including revisiting the possibility of the Hesley School and Village provision."
"5. The LSC has received three communications from Connexions (including two that are unsigned and undated) purporting to be a report, or a draft report, undertaken pursuant to section 140 of the Act. None of the reports contain the information the LSC would expect to see in a section 140 report and all arrive at different outcomes without explaining what has changed between reports to explain the different outcomes . . .
. . .
9. The placement of the claimant at South Downs College was arranged by the claimant's key worker at the Robinia Centre without reference to the LSC under the terms of the Guidance or at all. The funding being accessed is general further education ('FE') funding available to all general FE Colleges who contract with the LSC for general FE provision; the LSC has not, by the claimant accessing this general funding, made any decision regarding what is appropriate provision.
10. The LSC has not received a request to consider making a grant pursuant to section 5(1)(c) of the Act and has, therefore, made no decision in connection with such a request.
11. In making a decision, however, whether or not to make a grant pursuant to section 5(1)(c), the LSC will still have to ensure it complies with all of the statutory obligations it is under and that such grants are not used as a way of surreptitiously circumventing systems such as the approved provider system or avoiding the restrictions the LSC would usually place on funding to ensure compliance with the Act, protection of public funds, value for money, et cetera."
"Section 140 of the Act provides for the Secretary of State to arrange for an assessment to be conducted of a person who appears to have a learning difficulty. That assessment of a person is an assessment resulting in a written report of --
• the learner's educational and training needs, and
• the provision required to meet them.
The Secretary of State has made arrangements for an entity, namely Connexions, to undertake the actual assessment and the subsequent report. Connexions is a completely separate legal entity to the LSC."
"The LSC has not received, from Connexions or any other referring agency, an application for the LSC to consider funding of a speciality provision for the claimant in the form of a completed Annex F form with the supporting evidence . . . .
The LSC has received a number of communications from Connexions since January 2007 purporting to be reports of assessments carried out under section 140 of the Act. Initially in January 2007, a Moving Forward Plan was received, dated 22nd January 2007, which seemed to identify the following options as appropriate for the claimant -- personal tutor, local sector college, Highbury College, St Vincent College, Hampshire Autistic Society, Orchard Hill College of FE, Nash College and Hesley Village and College.
In a subsequent, undated communication (received by the LSC on 29th November 2007) the following options are identified -- Hesley Village and College and personal tutor. Finally, in the most recent (undated but received in January 2008) draft report (or more accurately Part 2 of the report, the LSC have not seen Part 1 yet) the following options are identified -- Hesley Village and College, Nash College and Orchard Hill College.
No reason or explanation is given for the different options identified over the last 12 months. Further confusion arises from the suggestion now that residential provision is essential to the claimant's education and training . . . whereas some of the options identified (in two of the three reports offer day provision only . . . [T]he obligation on the LSC is to secure reasonable facilities for education and training. Contrary to the Guidance, there is no evidence that the claimant has attended assessments and no information on the courses identified and views on suitability in relation to the claimant's education and training needs as identified by Connexions, pursuant to section 140 of the Act. There are a number of other issues with the communications received from Connexions however, suffice to say, the LSC shares the concerns of the claimant over whether the purported section 140 reports do, in fact, comply with section 140 of the Act."
"Stephen's parents are concerned as to whether his current provision meets all of his needs and have requested a revised S140 from Connexions, at the same time commissioning a further Educational Psychology report as a result of Stephen starting his course."
"Stephen wishes to continue in learning; this is supported by the Educational Psychologist's (Vivienne Clifford) report which states that Stephen has the potential to continue in learning and to develop his communication, literacy and numeracy skills. According to the Educational Psychologist's report Stephen requires a minimum of three years education in order to achieve the fullest possible progress."
"There are other LSC funded providers that may be able to meet Stephen's needs. These could be explored in further detail should none of the other options be available."
"In our opinion it would be disruptive to Stephen's well being, and future long term education, if he were to be removed from South Downs College as the Educational Psychologist indicates that he is making progress.
Given this, Connexions feels that South Downs College is the best option for Stephen, provided the adjustments outlined in Vivienne Clifford's report are fully implemented. These would need to be funded through the LSC.
Should the recommendations not be implemented, Connexions would suggest that specialist provision be sought at an alternative institution in order to minimise any delay in Stephen accessing appropriate learning.
As such, Connexions will start the process by completing a draft section 2, specialist funding application, as far as is possible at this point, in order to expedite matters swiftly. However, it would be expected that Stephen visit and be assessed by these specialist providers before an offer could be made or funding pursued."
It is of relevance that the comment in paragraph 2 of this section recommended South Downs College as the best option provided the adjustments outlined in the Clifford report are fully implemented. This suggests that at this stage Connexions had not yet assessed, or at least fully assessed, whether the provision could be made at South Downs College. Indeed, read in the light of the LSC's letter of 17th January, that conclusion is supported by the fact that the LSC were also sceptical of the progress that Connexions had made by that date.
"Connexions will convene a meeting between South Downs College, the LSC, Stephen's parents and Connexions to explore ways of implementing the recommendations."
Again, it seems to me to be a clear inference from this statement that the practical implementation of the recommendations in the Clifford report had not at this stage been fully explored or assessed.
"You also mention that there are, 'other LSC funded providers that may be able to meet Stephen's needs'. Please would you confirm who these providers are and what evidence is being relied upon to determine that they could possibly meet his needs. We assume you are saying that as these have not been explored they were not considered to be suitable or are you saying that you do not [know] whether or not they are suitable because they have not been explored? We fail to understand what you mean when you say that they may be able to meet needs if you have not explored whether or not they are suitable.
In relation to South Downs College Hampshire you have identified and have recommended the support that has been suggested by Vivienne Clifford, educational psychologist. We need to know --
1. Who is available to deliver the support that Vivienne Clifford recommends, ie, what body or body of individuals are available?
2. Who is going to be responsible for overseeing the integration of this support? Which body or bodies of individuals will do this?
3. Has this body or bodies of individuals been approached? If so by whom and what have the responses been?
4. How quickly can this be put into place and who will be responsible for overseeing the progress and any necessary updates that may be required to the educational programme that is being recommended?
We need to hear from you as soon as possible in relation to this as we have some concerns that the LSC have written to us to state that they are unhappy about the way in which the assessment has been conducted thusfar."
"In response to your questions about the support identified at South Downs College. We will only be able to answer these questions once we have convened a meeting with the Learning & Skills Council (LSC), representatives from South Downs College and a Personal Advisor from our provider Prospects Services. It is important that professionals from the agencies involved are able to discuss and plan the support required for Stephen.
It would be helpful if you or Stephen's parents could contact Peter Davis at prospects so that we can proceed.
The Connexions Service is committed to get the best possible support for Stephen and I would like this to happen as quickly as possible. We will do all we can to ensure that the LSC provides funding to support Stephen as identified in the assessment."
"The Connexions Service and the LSC are trying to arrange a meeting to take this issue forward. Peter Davis, Prospects Services has been in contact (on 7th February 2008) with Kathleen Moss, LSC Regional Advisor to arrange a meeting. As I understand it, the London Regional Administrator at the LSC is taking this forward to coordinate diaries for the LSC.
[Possible dates in February and March were then listed]
In your letter, you make the point that this case cannot drift any longer. The implication here is that you feel that we are allowing this case to drift. I think this is most unhelpful. As you know, we have completed the assessment and have started discussions with the LSC to organise a suitable time for individuals to meet. The LSC and our provider Prospects Services will contact me when the date of the meeting has been confirmed. I will of course pass this information to you.
In respect of Vivienne Clifford's attendance, I do not have a problem with her attendance. As her report has already been taken into account along with the opinion of the Personal Advisor I am not sure what more can be added at this stage. …
I, like you, want this issue to be resolved so that Stephen has in place the best possible support so that he can achieve his goals. The Connexions Service in South London has completed the assessment (meeting the statutory requirement), taking into account your commissioned report by the Educational Psychologist, Vivienne Clifford. A meeting is now being arranged. I would like to think that the LSC will provide the support as requested in the assessment.
In respect of the assessment, could you please as requested organise Stephen's parents to sign and return it to Peter Davis at Prospects."
"For reasons known to your office we cannot sign the assessment as yet because we do not know how, by whom or where the additional provision recommended by Vivienne Clifford could practically be delivered at South Downs College. Unless a body of individuals are identified and a plan drawn up it is difficult to see how our clients can sign the document and hence the reason why there is to be a meeting. In other words the meeting is to determine whether the provisions suggested at South Downs could be practically achieved."
I note again that it is being raised as early as February 2008 that Stephen's parents were concerned about the practical delivery of the provision that was being suggested.
"The situation therefore is that the Connexions Service are not expecting either our client, his parents or indeed his representatives to attend the meeting on 6th March 2008. Further the Connexions Service revealed that it had not sent the unsigned section 140 assessment to the LSC. Such a comment appeared to be at odds with the comments that we had received previously from the LSC's solicitor dated 17th January 2008 in which it is recorded, 'finally in the most recent (undated but received in January 2008) draft report, or more accurately part 2 of the report, the LSC have not seen part 1 yet, the following options are identified -- Hesley Village and College, Nash College and Orchard Hill College' . . .
The most alarming information that we have received is that the meeting of 6th March 2008 is no longer possible as the LSC are unable to attend on that day.
This is clearly an urgent case that has been drifting for a number of years. Indeed we have been corresponding with you for some time. Our clients are not able to sign the 'Moving Forward Plan' as it fails to identify who is going to be able to deliver the support that is now being recommended. Incidentally we can also point out that we have spoken with Orchard Hill College, one of the providers that you have suggested in the report, who have informed us that there are no possibilities of Stephen receiving a place there until possibly even 2010! We were informed that the paperwork was not even sent to Orchard Hill College at all for them to ascertain Stephen's suitability for a place although the College admitted that it would have to undertake a full assessment before it could determine whether or not he could in fact even attend there. With respect it is the job of the Connexions Service to undertake the assessment and to then report as to how and where Stephen's needs could be met. It appears that it is now suggesting two colleges that it has not even properly consulted, ie, Nash or Orchard Hill.
The only issues therefore which remain are --
1. Whether South Downs College can meet his needs with the additional support and if so who is going to deliver that additional support or;
2. Hesley Village and College, which the LSC will not fund.
We do not want this matter to drift any further and we would respectfully suggest that it would be quite possible for those in the Connexions Service to pick up the telephone and speak to South Down College and the LSC to determine how this support that it recommends in paragraph 3 of the assessment could be delivered. The matter should not be delayed further because of a requirement for a face to face meeting. If this matter is going to drift further then our clients can see no point stalling any application to the High Court because this case appears to them to be simply going round and round in circles. We repeat, in an effort to avoid the judicial review claim, we simply want the Connexions Service to address the questions we raised previously in our letter of 5th February 2008, namely --
(a) Who is available to deliver the support that Vivienne Clifford recommends? What body or bodies of individuals are available?
(b) Who is going to be responsible for overseeing the integration of this support? Which body or bodies of individuals will do this?
(c) Has this body or bodies of individuals been approached? If so by whom and what have the responses been?
(d) How quickly can this provision be put into place and who will be responsible for overseeing the progress and any necessary updates that may be required to the educational programme that is being recommended?"
Again, it was put in the clearest terms by the Claimant's solicitors that they did not want further delay and that they wanted to understand how the recommendations which Connexions accepted from the Clifford report could be delivered in practical terms. I note the comment in (d) above which was similar to the earlier correspondence.
"We refer to an email that you sent to our office dated 13th March 2008 in which you stated that in response to our earlier correspondence you contacted South Downs College to provide answers to the questions on page 3 of our letter. You record that having spoken to Debbie Bolles, the learning support coordinator for the College, she is more than happy to put in as much support for Stephen as is necessary. What is necessary? Your assessment needs to identify this.
You then say that the College will need to discuss this with the LSC in order to seek additional funding and require the section 140 assessment in order to do so. How can you seek funding when your assessment does not identify exactly what is in fact necessary? Your assessment will need to confirm what is necessary, why it is necessary, can the provision be made and if so by whom? When? How often and at what cost? …
[Various detailed points about provision were then made]
You then point out that it is the view of the College and that of the LSC that provision can be put in place quickly. Our clients do not wish to be difficult but the first responsibility must lie with the Connexions Service to finalise its assessment. The assessment quite frankly needs to, as we have repeatedly said, identify the needs of Stephen and how those needs should be met. The document needs to be specific explaining clearly whether those needs can be met locally and if so by whom, when, where, how often and at what cost? The assessment that you have asked our clients to sign does none of this.
You then say that you urge our clients to sign the assessment so that you can proceed to put in place the support that Stephen requires. Yet for the reasons explained the needs that Stephen has, other than through Vivienne Clifford's report, are certainly unclear in your assessment. Our clients cannot sign an open-ended document. Our clients are desperate to receive first a finalised assessment and then they will sign the same if it is in appropriate form. It is pointless identifying for example as you have in the context of Nash and Orchard Colleges academic provision. In other words provision that is practically not possible.
Can we therefore ask that … you now finalise this assessment within seven days. Whereupon we will then take instructions within seven days thereafter to obtain our clients' signature and thereafter for funding to be arranged speedily. We cannot let this matter drift any longer as our clients have explained to us that they are at the end of their tethers, as they believe that this case is drifting unnecessarily and that Stephen is suffering as a consequence. If we do not receive such an assessment within the time period that we have requested we will have no alternative, as we so instructed, to make an application to the High Court for the reasons repeatedly explained to you. At the same time we do sincerely hope that such a course of action can be avoided and that a solution can be achieved speedily in the interests of Stephen."
"Please inform us as soon as possible of the exact changes to the section 140 assessment that you would like to see. At the moment your case is unclear and we do not see how a court can properly adjudicate on it.
Further, the section 140 assessment of which you complain has not yet been submitted to the LSC, in accordance with your wishes. However given that, as your grounds of claim state, the LSC is an interested party in this case, it is of the utmost importance that the LSC is permitted to comment on the acceptability or otherwise of the assessment. In any event, it seems to us that as an interested party the LSC is entitled to see all the papers in the case, which includes the disputed assessment."
"Thank you very much for your letter of 12th June 2008. We consider that the S140 assessment should set out in clear terms the needs of the young person and how those needs should be met and where they should be met. You will please refer to our earlier correspondence and in particular the pre-action correspondence that challenged the S140 assessment.
You will appreciate that our client is concerned that the assessment seems to be suggesting provision that may be academic and may never be achievable at his current placement. We need to know how this will be achieved, who will be delivering the support, how often and when. We also need to move as fast as we can in this case as time is moving on. In relation to your point concerning the LSC involvement, we can confirm that the Court Bundle in its entirety has been served upon the Legal Services Commission. This perhaps deals with your query."
"Given that you cannot specify for us what you think the assessment should say, or exactly how it is in breach of the law, we do not understand how a court can agree with the claimant that there has been an error of law in the assessment.
We regret to suggest that this somewhat unhelpful approach is not in accordance with our understanding of how parties engaged in public law litigation should attempt to resolve their differences."
"[The] document did not identify the extent of hours that should be dedicated to Stephen to help enhance these skills. Neither did it identify who should deliver it, whether it should be a specialist teacher qualified and experienced in dealing with young people on the autistic spectrum. We concluded in our letter, 'We trust you will appreciate therefore that our clients are uncertain as to what your assessment is indeed recommending'. That situation remained the case then and remains the case now, for the reasons that are quite clearly set out in the correspondence that has been passing between the parties. Furthermore the issue is raised in the pleadings . . . .
We pointed out that our clients preferred South Downs College, Hampshire with adequate support being built in. It was further pointed out that we were clearly being led to believe that the LSC had received these assessments from the Connexions Service in the past in any event. However in relation to the specificities we asked a number of questions in our letter of 5th February namely --
'1. Who is available to deliver the support that Vivienne Clifford was recommending, ie, what body or bodies of individuals are available?
2. Who is going to be responsible for overseeing the integration of this support, which body or bodies of individuals will do this?
3. Has this body or bodies of individuals been approached? If so by whom and what have these responses been?
4. How quickly could this be put into place and who will be responsible for overseeing the progress and any necessary updates that may be required to the educational programme that is being recommended?' . . .
It seemed to our clients and to us that the matter was going round in circles. We had repeatedly explained what we wanted and why we were concerned about the section 140 assessment over a number of years. Time was moving on and Stephen was getting older and he was becoming more and more in need of specialist help.
Vivienne Clifford, educational psychologist, produced another report which the Connexions Service clearly believed was not necessary to pay for on 8th January 2008. In this report she made a series of recommendations at page 16 of her report identifying the needs for --
1. A language and social communication programme
2. A literacy programme
3. A numeracy programme
4. An ICT assessment
5. Full-time in-class support
6. An IEP with an outline of strategies and approaches circulated to all staff
7. An assurance that his support could continue beyond July 2009.
She also very clearly recommended the type of people who should deliver these programmes and support including a SALT, a specialist teacher (specialist in the sense that they are skilled and experienced in teaching literacy to children and young people with autism), the ongoing involvement of an educational psychologist or an advisory teacher specialising in ASD being involved at least twice a year on the request of the college providing ongoing advice and monitoring and training and a recommendation that he receive an educational programme for at least three years duration (see 10.1 of her report) . . .
Further we express surprise that despite lengthy correspondence spanning two years the Connexions Service still appear to be uncertain as to what it is we would like to see within the Learning & Skills document. We thought that we had made ourselves abundantly clear in the previous correspondence but again in order to provide further clarity we would suggest --
1. That the assessment identify fully Stephen's needs as assessed by the experts involved in this case.
2. If there is any dispute in relation to his needs then the learning document would need to set out on what basis such a contention can be made and relying on what evidence.
3. The assessment will need to determine what is in fact necessary, by which we mean learning provision. Why is it necessary? Can the provision be made and if so by whom, when, how often and at what cost? How is any support that might be built in to the college placement being fully integrated? Who will oversee it? What qualifications and experience would that person need?
4. The assessment should not identify alternative placements that have never been approached or evaluated. It should not suggest hypothetical provision but rather real provision that is actually available. It should either agree or disagree and if so specify why alongside the recommendations made by Vivienne Clifford in the report already referred to. It should itemise the provision determined to be necessary and decide whether or not it is capable of being addressed at South Downs College and if so by whom, at what cost etc."
"With reference to the above, we attach a section 140 assessment with some further information.
Our aim is to try to make progress so that Stephen is placed at an educational establishment which can meet his needs. Because your clients have not signed the current assessment it has not been sent to South Downs College.
As a result, the discussions which would then take place between student, family, provider, Connexions, and if necessary the LSC, have not begun. We very much hope your clients will now sign it so that this process can start. We would stress that the section 140 assessment is not meant to be a complete description of Stephen's needs. It is not the equivalent of a statement of special educational needs. The specifics of provision are worked out by the provider once it has come to the view that it can meet the student's needs. If it requires further funding to do so, the LSC will be contacted.
We hope your clients would also take comfort from the fact that South Downs College already know Stephen well as he has been placed there for some time. This is not a case in which the provider knows nothing of a student's needs. We have no doubt that the section 140 assessment will be sufficient for the College to make a properly informed judgment as to whether it can provide for him appropriately and, if so, whether it will seek further funding from the LSC.
If your client will not sign the section 140 assessment, Connexions may decide in any event to send it to South Downs College. Connexions is very reluctant for further time to pass without progress being made in the planning of Stephen's education."
"Vivienne Clifford has identified a range of support needs that Stephen requires in order to fulfil his potential on this course."
"Stephen's parents have contacted both of the colleges above and been informed places would not be available for the next academic year.
There are other LSC funded providers that may be able to meet Stephen's needs. These could be explored in further detail should none of the other options be available."
"Given this Connexions feels that South Downs College is the best option for Stephen, provided the adjustments outlined in Vivienne Clifford's report are fully implemented. These would need to be funded through the LSC. Should the recommendations not be implemented Connexions would suggest that specialist provision be sought at an alternative institution in order to minimise any delay in Stephen accessing appropriate learning."
|If not attached outline here: Help needed to carry on with learning/training (including work placements)||How might it be provided|
|1-1 support required at all times|
|An individual Learning Plan with specific learning goals to cover:||An ILP should be agreed with input from Stephen (and parents), the College's Learning Support Co-ordinator, Connexions, and the Educational Psychologist.|
|1: developing and increasing Stephen's verbal and non verbal language skills||Through a programme developed and delivered by a Speech and Language specialist; this should be at least one hour each week.|
|2: developing Stephen's basic skills in literacy||Through an individualised programme of literacy using 'look and say' techniques.|
|3: developing Stephen's basic numeracy skills||Through an individualised programme of 1-1 support from a teacher experienced in working with students with autism.|
|4: assessing Stephen's access to use of ICT||Use of a touch screen computer; access to relevant software and support from teachers.|
In other respects the form of the report was not significantly different from that issued in January.
"19. I am deeply concerned about the current learning plan that has been set out by the defendant. In my opinion the learning plan will need to specifically address the recommendations I have made to ensure that any college who is entrusted to manage and address Stephen's needs do so with their eyes wide open to his needs and requirements. The current document, in my opinion, does not adequately address and make recommendations for the provision that I have identified as being absolutely necessary for Stephen . . . .
21. I stand by the recommendations made for Stephen. I would also add that I do not believe, bearing in mind what is currently provided for Stephen, that the provision is adequate in order to meet all of his needs. I am concerned that unless he receives this support he will forever be disadvantaged in his future. My concern is that a college that is asked to receive Stephen may determine, on the basis of the learning plan produced by the defendant, that they can meet his needs when in reality, if it was more specific setting out the recommendations that I believe are absolutely necessary, they may determine otherwise. In my opinion it is essential that those who are entrusted to assess and make provision for Stephen do so by identifying clearly not only what his needs are but also what is required in order to address them. In my opinion the learning plan would need to specifically set out within it the recommendations that I have made so that there can be no doubt as to how Stephen's needs can and should be addressed, which in turn will leave no doubt for any college to determine whether or not it has appropriate provision and expertise available to match. I am deeply concerned that this process has not been correctly followed in Stephen's case which has led him to receive admittedly better provision than previously but is still insufficient for the reasons I have set out."
"(1) The Council must secure the provision of reasonable facilities for --
(a) education (other than higher education) suitable to the requirements of persons who have attained the age of 19,
(b) training suitable to the requirements of such persons,
(c) organised leisure-time occupation connected with such education, and
(d) organised leisure-time occupation connected with such training.
(2) Facilities are reasonable if (taking account of the Council's resources) the facilities are of such a quantity and quality that the Council can reasonably be expected to secure their provision . . . "
"(1) In discharging its functions under sections 2, 3, 5(1)(a) to (d) and (g) and 8 the Council must have regard --
(a) to the needs of persons with learning difficulties, and
(b) in particular, to any report of an assessment conducted under section 140."
"(1) Subsection (2) applies if --
(a) a local education authority maintains a statement of special educational needs for a person under section 324 of the Education Act 1996, and
(b) the Secretary of State believes that the person will leave school at the end of his last year of compulsory schooling to receive post-16 education or training (within the meaning of Part I of this Act) or higher education (within the meaning of the [1988 c. 40.] Education Reform Act 1988).
(2) The Secretary of State must arrange for an assessment of the person to be conducted at some time during the person's last year of compulsory schooling.
(3) The Secretary of State may at any time arrange for an assessment to be conducted of a person --
(a) who is in his last year of compulsory schooling or who is over compulsory school age but has not attained the age of 25,
(b) who appears to the Secretary of State to have a learning difficulty (within the meaning of section 13), and
(c) who is receiving, or in the Secretary of State's opinion is likely to receive, post-16 education or training (within the meaning of Part I of this Act) or higher education (within the meaning of the [1988 c. 40.] Education Reform Act 1988).
(4) For the purposes of this section an assessment of a person is an assessment resulting in a written report of --
(a) his educational and training needs, and
(b) the provision required to meet them . . . "
"Whilst the content of part 3 of the statement must not be dictated by a prior decision as to placement in part 4 (that would be to put the cart before the horse), it would be unrealistic to suggest that the tribunal was not entitled to be 'influenced' in its findings as to the amendments to be made to part 3 by its decision as to the P school. The prescription in part 3 of a statement has to be delivered in the real world by a particular school or schools: see the judgment of Harrison J in R v Secretary of State for Education ex parte W (1994) 27 May (unreported).
Provided it is appropriate to meet the needs specified in part 2 and the objectives specified in part 3, the prescription in the remainder of part 3 may be 'informed' by what is actually available at a particular school. It is, however, a corollary of this approach, that if a particular school is to be relied upon to meet a particular need, the tribunal must have accurately defined the need in part 2 and must have been able to satisfy itself that the school will be able to provide the special educational provision specified in the statement: see again Harrison J at pp 13-14 of R v Secretary of State for Education ex parte W." (pp 322G-323B)
(a) It is necessary to bear in mind the division of functions between the Council LSC. It is not for the Council to secure delivery of funding.
(b) The failure of the claimant's parents to take up the invitation in June 2008 to say what should go into the assessment report is relevant. I have already referred to the correspondence on that matter.
(c) That South Downs, where Stephen has been attending for some time now, is well aware of Stephen's situation and his needs. I note in passing at this point, of course, that was true when the Clifford report was written since it was written in the light of Vivienne Clifford's visit and consideration of what was being provided at South Downs. Further, it is for the Council to satisfy itself of the provision, not South Downs College.
(d) Mr Davis has explained in his witness statement of 12th September what is now being done and what has been provided. It appears that on the basis of the July 2008 report the LSC has approved funding for some assistance and training, although it is far from clear what has happened as between Bromley and the LSC. I am surprised the Council did not think to file evidence to inform the Court as to what the position was regarding the provision of that report and the LSC's approach to date. However, it appears at least that the LSC has released funding for the Claimant and Mr Davis explained what is being provided at the moment and what difficulties are being experienced.
(e) Mr Oldham submits that there is no evidence in fact that provision is unavailable despite Mr Alloway's second witness statement which sets out a number of criticisms which were reflected in Mr Friel's submissions.
(f) Mr Oldham submits that I can be satisfied that although the drafting of the July 2008 report may be less than ideal, Bromley has not failed in law to comply with the substantive requirements of section 140(4).
" . . . the staff need to be teaching assistants, rather than the current learning assistant provided. These teaching assistants should be well trained and highly experienced in working with young people with autism and learning disability."
Detailed recommendations were made as to the skills which were necessary. This is related to the advice in the Clifford report that the support that Stephen was currently enjoying was not sufficiently experienced, nor displayed sufficient initiative, and that section 7 of the report was critical of the skill and experience of the support staff. This, in my judgment, was an important aspect of the recommendations accepted by Bromley.
"The claimant has a Learning Support Assistant support in every session and also has access to a touch screen computer to assist his studies."
This appears to me to show a misunderstanding of the clear recommendations in the Clifford report about the level and experience of support which was required. Mr Oldham was unable to explain why this had been stated by Mr Davis as opposed to something which more closely aligned with the Clifford recommendations. I also note, with respect to this particular and important requirement in the Clifford recommendations, that there is no mention of it in section 4 of the report. Whilst that is not necessarily fatal, because the report itself is attached, it does strongly suggest that there has been a misunderstanding by the Council. It is certainly true that anyone reading the report -- and the LSC in particular – would not be clear as to what was intended. Therefore, the Claimant's criticism of the report and assessment is borne out in that the undoubtedly agreed recommendations have not been understood (which is a material flaw in the assessment) or the report is inadequately expressed to reflect them so they are not being implemented.
(1) There clearly had been difficulties with arranging the meetings to discuss provision. See the correspondence in February and March and the letter from Bromley of 2nd July which suggested that progress still had to be made in terms of identifying how the provisions were to be made.
(2) The letter of 2nd July, as I have already noted, indicates the assessment of the availability of provision was incomplete.
(3) Mr Davis has explained what has been provided to date and apparently the LSC has accepted the report is suitable for its purposes. However, this does not suggest there are available facilities to meet all other recommendations. The confusion between learning and teaching support, and the issue of the level of expertise of support to be provided for Stephen, is relevant here. It is of critical importance, in my judgment, because it features so clearly and strongly in the Clifford report.
(4) Mr Davis' witness statement (paragraph 3) also reveals, as does Bromley's letter of 2nd July, that the assessment process has not been properly completed prior to its conclusion in that he says:
"In most cases only Part 1 needs to be completed as the learning provider is able to provide the required support. In order for Part 2 to be completed and brokered there would need to be evidence that said provider could not meet the needs of the young person."
(1) That the assessment and report carried out by the Council and served under cover of a letter dated 2nd July 2008 do not comply with the requirements of section 140(4) of the Learning and Skills Act 2000.
(2) The Council should reconsider the assessment and report as soon as reasonably practicable in the light of the terms of my judgment.
I shall not make any specific form of order with regards to the production of a new report but I give the claimant permission to apply to the court in the event that there is any further difficulty or undue delay in the finalisation of the assessment and the report.