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England and Wales High Court (Administrative Court) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Alloway, R (on the application of) v London Borough of Bromley [2008] EWHC 2449 (Admin) (17 September 2008)
URL: http://www.bailii.org/ew/cases/EWHC/Admin/2008/2449.html
Cite as: [2008] EWHC 2449 (Admin)
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand London WC2A 2LL |
||
B e f o r e :
(Sitting as a Deputy High Court Judge)
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| THE QUEEN ON THE APPLICATION OF ALLOWAY | Claimant | |
| v | ||
| LONDON BOROUGH OF BROMLEY | Defendant |
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Mr P Oldham (instructed by LB Bromley) appeared on behalf of the Defendant [Miss A Rogers appeared for judgment]
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- THE DEPUTY JUDGE (DAVID ELVIN QC): This is a judicial review of, initially, a body called Connexions, now the London Borough of Bromley (which I substituted as defendant yesterday), which is discharging a delegated function under section 140 of the Learning and Skills Act 2000 ("the 2000 Act") to carry out an assessment under section 140 of that Act. The judicial review was begun on 23rd May of this year and, pursuant to an urgent application to Flaux J, was granted permission and expedition ordered on 28th May.
- Stephen Alloway who is the claimant by his father and litigation friend, Trevor Alloway, is a person under a disability who has a diagnosis of an autistic spectrum disorder and learning disabilities. He is also diagnosed with epilepsy which is controlled by medication. He was previously educated at Purbeck View School, which is a specialist school for children with autistic spectrum disorders, and then attended Northbrook College, a specialist college for young persons with autistic spectrum disorders. These were both residential provisions due to the severity of his needs.
- Stephen currently resides at the Robinia Care Home, Durlands Road, Horndean in Hampshire and has resided there since 2004 since leaving college. There are other male residents at this address and, outside of the specialist facilities at that home, Stephen requires and receives 56 hours of specialist care support. This is used to help him access education.
- Originally, on leaving the specialist college, Northbrook College, Stephen, having been placed at Robinia Care, attended its day resource centre known as The Grove, together with the Highbury College of Further Education for half a day a week. That provision was accepted by all to be inadequate. As a result, Stephen moved to the provision at South Downs College where he attended for three days a week. Stephen ceased attending Highbury College because the college could not provide for his needs and Stephen transferred to South Downs in September 2007. South Downs is a college of further education maintained by the Learning and Skills Council.
- Stephen commenced at South Downs College without a full assessment of his needs under section 140 of the 2000 Act, which was initially carried out by the Connexions Service before the functions of Connexions delegated by the Secretary of State were transferred to the London Borough of Bromley earlier in 2008. The current system is that the Learning and Skills Council implement, subject to their own statutory duties under the Learning and Skills Act, the provision recommended by the authority in the assessment carried out under section 140. The issue in this case which I will deal with in more detail in due course is whether the final version of the assessment which has been carried out to date, which was issued following commencement of judicial review proceedings by Bromley in July 2008, is lawful and complies with the requirements of section 140.
- It is said on Stephen's behalf by Mr Friel that in the light of what has occurred and in the attempts to carry out a proper assessment, what has resulted is an assessment which does not comply with the requirements of section 140. It does not therefore assist the Learning and Skills Council, in the way in which it ought, to carry out its own reviews to consider funding and ultimately the provision of the necessary training and assistance which Stephen undoubtedly requires, and which all are agreed he requires.
- With the assistance of the Learning and Skills Council, the Claimant's parents commissioned two reports from an expert educational psychologist, Vivienne Clifford. She issued an initial report in 2006 and provided a review and an update of that report following the commencement of Stephen's training at South Downs in 2007. In a new report dated 8th January 2008, it is common ground between claimant and defendant that that report properly assesses Stephen's needs in terms of education and skills in that it properly recommends a particular series of actions which are required in order that Stephen might be sufficiently provided for in accordance with his needs. It was made clear to me on several occasions by Mr Oldham on behalf of Bromley yesterday that in no respect has Bromley sought to disagree or derogate from Vivienne Clifford's report of January 2008. When I refer in this judgment to the "Clifford report", I am referring to that report of 8th January 2008.
- The Clifford report states (in its material parts) :
- In Section 6 under the heading "positive features" the report identified a number of improvements which had occurred including Stephen's integration in his group, greater focus on his activities than previously, he was much calmer and better stimulated, interacting with his LSA and his carer and being familiar with the names of the adults and recognising the students in his group.
- Notwithstanding the signs of improvement which were identified in section 6, section 7 of the Clifford report set out concerns which the author had, following her the visit to South Downs and consideration of the provision then being made available to Stephen. A number of matters were identified, of which one of the critical issues was the inadequate skill level of the support staff. The report indicated in paragraph 7.1 that "the skill and competency of the support staff working with Stephen needs to be higher in order to ensure his skills develop and his capacity to learn is maximised". Concerns were also identified with aspects of the literacy and numeracy programmes, noting the need for an individualised literacy and numeracy programme, in terms of linguistic and social communications which included the requirement for a speech and language therapist. In respect of ICT, it was noted that a further assessment of Stephen's ICT requirements in terms of the hardware which he would need should be assessed further, the length of the course programme and the individual learning plan. At section 8 the report summarised the matter as follows:
- Section 9 of the Clifford report set out the expert's recommendations. She repeated her assessment of the objectives for Stephen as outlined in her 2006 report and said that they remained appropriate. Those objectives were as follows:
- The recommendations considered in detail the specific requirements that needed to be added to what Stephen was receiving at South Downs in order that his needs be properly met. Those recommendations are of some importance when the assessment and report now under challenge are considered since Connexions, then Bromley, have accepted the Clifford Report in its entirety:
- 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…
- The report concluded as follows:
- Prior to this report there had been a period of draft assessments under section 140 and disagreements as to what was required. There had been correspondence with both Connexions and with the LSC about the adequacy of the steps which Connexions had taken, and indeed the time which was being taken in order to carry out that assessment. It is one of the unfortunate features of this case that Stephen, whose needs are undisputed, has been in a position whereby the process of assessing his needs has taken far too long, in my judgment. Connexions in particular frequently repeated that it should proceed swiftly, without actually proceeding swiftly as it ought to have done.
- The concerns resulted in correspondence with the LSC, and indeed it appears from the correspondence that judicial review was threatened at some point. I have not seen all of the correspondence in that respect. However, the response from the LSC to the threat of judicial review is significant, if only, given that has not been challenged, that it indicates its own perspective as to what was required in terms of the assessment and report under section 140. It wrote a lengthy response apparently to a letter before claim dated 17th January 2008 and, so far as relevant to the current proceedings, it stated:
- It is clear from that what had been done by the time of that letter of 17th January 2008 by Connexions did not meet what the LSC considered ought to have been contained in an aassessment and report pursuant to section 140.
- The letter went on to make the following points:
- The letter then referred to the LSC's own funding guidance, which is published on an annual basis, and it noted that the first stage of the process that it carried out was the completion of certain forms to show the consistency and availability of adequate information to the LSC on which it would make its funding decisions. The LSC stated:
- The letter then identified the LSC's position that its duty under section 13 of the Act "will not stretch to taking into account a deficient assessment or one that simply does not comply with section 140 of the Act". As I have noted, it was clear that as at 17th January the LSC's view, as the intended recipient of the assessment and report, was that it had neither received an application in proper form nor an adequate or appropriate report under section 140.
- As it happened, on the following day Connexions produced a further redraft of the report of the assessment. It set out Stephen's details, noted his date of birth: 17th April 1995. It set out in section 2 details about Stephen and his life and his needs and section 2(i) concluded:
- Section (2)(ii), "Future Plans/Aspirations", said this:
- Section 3 then set out "Options Identified and Intended Destination" which set out, as options identified, South Downs College, Hampshire and as 'other options' Hesley Village and College Doncaster, Nash College and Orchard Hill College of Further Education, and the "Options Identified" section ended:
- Then there is a section headed "Intended Destination":
- Section 4 of the form included a number of boxes to be completed, and I note that the boxes record that the information on Stephen's learning/education support is attached and it identifies "Educational Psychologist report January 2008" and does not then outline in subsequent boxes what the help is identified as being required or had in mind to be provided. Reliance was simply placed on the attached Clifford report and the same occurred on the next page of the form under the heading of "Social/Living/Leisure -- Social Development Support Needs". Again, reference was made to the attached educational psychology report.
- Under the heading in section 5, "Next Steps and Actions Agreed", a number of steps were set out. It started (perhaps optimistically in the light of how matters have developed) with section 140 being completed by January 2008, followed by sending that to the parents, but ending with in February 2008:
- Stephen's parents were not satisfied with the 18th January report, either in terms of the level of detail set out with regard to the needs, or what recommendations should be provided or, importantly, whether what was recommended could in fact be provided by the identified provider of South Downs or another establishment. Although, section 5 of the report suggested that there would be a meeting which would include Stephen's parents with the other relevant statutory bodies, it became clear as February and March progressed that in fact that was not what Connexions intended, although clearly they had stated as such in the report.
- On 5th February 2008, Sinclairs Solicitors, who are the solicitors acting for Stephen and his parents, wrote to Connexions and said:
- Sinclairs were referring to the LSC's letter of 17th January, and they identified the critical parts of that letter. I note from this letter, which is significant in the light of some of the submissions that were made to me by the Council, that at this stage Sinclairs raised in their concerns the ability of the identified provider actually to provide for the needs of Stephen.
- Connexions replied on 6th February :
- On 12th February Sinclairs suggested that Vivienne Clifford ought to be at the meeting, and on 19th February asked that the meeting should be convened as soon as possible within 14 days and that matters should not be allowed to drift. Connexions replied on 20th February as follows:
- On 26th February 2008 Stephen's parents wrote that they were unwilling to sign the 18th January report because they did not know how the practical delivery of the recommendations would be achieved. Sinclairs replied:
- It subsequently became clear that in fact Connexions did not intend Stephen's parents to be present at the meeting. Sinclairs wrote to them on 5th March 2008 expressing their concern:
- That point was repeated by Sinclairs on 3rd April:
- On 15th May 2008 Jenny Harris from Robinia wrote to explain her position, which was not that she considered that South Downs met all of Stephen's needs but that she considered that South Downs met his needs more than his previous college.
- On 21st May 2008 Connexions wrote to inform Stephen and his parents that its responsibilities under section 140 had now passed to Bromley as the local authority. Two days later, Stephen's parents launched the current application for judicial review.
- Bromley wrote on 12th June, seeking the views of Stephen's parents in these terms:
- The response to Bromley's letter and the request for the exact changes which Stephen's parents required to be carried out to the report was dealt with by Sinclairs in a letter of 17th June:
- Whilst Sinclairs did not take up the opportunity (as is often done in statement cases) of setting out in detail the amendments which ought to be made to the report, they nonetheless made it clear what was required as a matter of principle. Again, as in earlier correspondence, it was made clear that one of the matters which was considered essential to be included in the report was to how the recommendations which the Clifford report made would be achieved in practical terms.
- Bromley's reply of 17th June was dismissive:
- This prompted, unsurprisingly, a very detailed and comprehensive letter from Sinclairs dated 19th June which set out a resumé of the situation and what had happened to date, explained again what Stephen's parents' concerns with the process. Inmy judgment, that letter made it clear to Bromley what those concerns were even if Bromley had not been aware of the earlier correspondence (which would be surprising). Whilst I do not propose to read or summarise all of this lengthy letter, I shall refer to the following key passages. By reference to the work that had been carried out in 2007 the letter pointed out:
- Following this exchange of correspondence, although the facts are not entirely clear, Bromley then proceeded to produce a further assessment and a report. On 2nd July Bromley wrote to Sinclairs as follows:
- It is of significance to this case that this letter notes, first, that the discussions which are necessary "have not begun" and that Bromley hoped that if the form was signed "this process can start". Secondly, it also points out that Bromley had no doubt that the section 140 assessment would be sufficient "for the College to make a properly informed judgment as to whether it can provide for him appropriately". Given the lengthy correspondence and the concerns repeatedly made by Stephen's parents as to understanding and identifying the practicalities of ensuring that provision was made in the real world for Stephen's needs , that sentence is significant because, along with other indications in that letter (another matter I shall come to in a moment), it seems to me to be clear that Bromley was indicating that the process of determining whether the needs could be met in a practical sense had not been concluded. Indeed, it is possible that Bromley was stating that it had not got much beyond the starting point, noting what is said in the third paragraph of that letter.
- Although I remind myself that I should not read correspondence as if it is a commercial document or a statutory provision, it is difficult to regard this letter as other than indicative of the fact that Bromley had not, by the stage of issuing its report, been able to conclude whether South Downs could, in practical terms, provide for Stephen's needs.
- I turn now to the report itself, which post-dates the judicial review but both parties have addressed their arguments by reference to the most up-to-date report and it is plainly most appropriate that I should do so. The form identified in section 2 the same details of Stephen's requirements as the earlier form had done. It also repeated the comments in the January report as to the concerns of Stephen's parents. It repeated in the section headed "Future Plans/Aspirations" the same text that was in the January report, and in section 3, "Options Identified and Intended Destination", identified still South Downs College under the heading "Current Provision", since by this time Stephen was attending South Downs College. It noted that:
- The report set out the same bullet points that were set out in the January report and then noted "Other options, should support not be available at South Downs could include", and there proceeded to identify Henley Village and College, Nash College and Orchard Hill College, ending with the following comments:
- Under the heading "Intended Destination", the text notably repeated the conditionality which was present in the corresponding paragraph of the January 2008 report (my emphasis):
- Changes were made in section 4 in comparison to the January draft of the report. Whilst the reference to the educational psychologist's report of January 2008 was still referred to in the appropriate box, and was still attached, the section outlining the help needed and how it might be provided was completed (in comparison to the blank boxes in January) in, it appears, an attempted summary of the recommendations of the Clifford report:
- It is right to note that this report was an attempt to grapple in greater detail with the recommendations which Sinclairs, on behalf of Stephen's parents, had been consistently saying ought to be dealt with. This report was drafted following a revised assessment in the full knowledge of the concerns expressed during 2008 by Stephen's parents and the LSC. It is also relevant to take account of the fact that the report was issued following the filing of a witness statement in this judicial review by Vivienne Clifford herself on 20th June. The statement reiterated the concerns set out in the Clifford report, repeated her recommendations, and pointed out that she stood by her assessment and recommendations (which Bromley does not dissent from at all). She also stated:
- It follows that from the correspondence, from Vivienne Clifford's witness statement, and indeed from the grounds of claim, Bromley had been given clear notice of the concerns which existed, which included repeated reference to the need to deal with the issue of the practical delivery of provision to meet Stephen's needs. I note, for example, under the heading "Particulars of error of law" in paragraph 34(ii) of the grounds of claim, one of the issues raised was "identify whether such provision can be delivered at South Downs College".
- Before I turn to the specific narrow issues in this judicial review, I will deal with the relevant statutory provisions. As the parties agree, the statutory responsibility with regards to provision of assistance to those between the ages of 19 to 25 is both less clear and far less detailed than the corresponding provisions for statements for those with special educational needs who are of school age. There is a clear division of responsibility under the Learning and Skills Act 2000 between the body (in this case the local authority) delegated by the Secretary of State to carry out the assessment and to report on the assessment, and the Learning and Skills Council itself which then has to consider, in the light of that assessment, what provision should be made and whether it should be funded. It is necessary to understand that dividing line and not to read into the assessment duty under section 140 matters which properly fall to the LSC under its own statutory duty. Mr Oldham made that point for Bromley and I accept it. However, the corollary of that point is that the local authority, carrying out the delegated duty of making an assessment and a report, must not leave to the LSC matters which it ought itself properly to identify and carry out under section 140.
- The LSC's own duties and responsibilities are found in Part 1 of the Learning and Skills Act 2000. Section 3 deals with the education and training for persons over 19:
- Under section 13 of the 2000 Act the LSC duties with regards to persons with learning difficulties is set out. The provisions of section 13, so far as relevant to this case, are found in 13(1) which provides:
- It is therefore clear that the LSC's duties with regard to persons with learning difficulties is predicated upon its duty to consider and have regard to any report of a section 140 assessment. It is clear that a section 140 assessment is the first stage in the process and assesses the needs and provision to be made for a person with learning difficulties in order that the LSC may then, by reference to the report of that assessment, take matters further with regard to its own duties to assess the reasonableness of provision and then to fund the provision recommended in the report which the LSC subsequently accepts. It is therefore important that the section 140 duty should be discharged properly so that the LSC may properly proceed to deal with the next stage, in order that provision is actually made for the person who needs it.
- This judicial review, of course, is not concerned with what the LSC may or may not do, or whether it is acting lawfully, but only with the first stage of the process under section 140 which is the responsibility of the Defendant.
- Section 140 itself provides, so far as is relevant here:
- The critical provision for the purposes of this judicial review is section 140(4), it being accepted that the preconditions for the assessment and the report are present in this case since Stephen's needs had been the subject of a statement under the Education Act 1996 while he was of school age. This statutory regime, unlike others in related areas of law, does not require statutory guidance to be issued or followed. I have in any event been provided with the LSC's own funding guidance for the relevant financial year but, regardless of its status, it is not of assistance with regard to the issues in this case.
- I now turn to consider the requirements of section 140 with regards to the validity of a report. Mr Friel for the claimant, both orally and in his skeleton, referred me to a number of statutory schemes in the care and education context, including the Education Act 1996 and the Children Act 1989 where various types of assessment of need and provision must be carried out. In particular he referred me to the requirements of statements for those with special educational needs under the 1996 Act. However, I do not find the requirements of other statutory schemes particularly helpful in interpreting the legal requirements of section 140 since they arise from their own specific statutory context. It is clear, as Mr Oldham for the Council submitted, and Mr Friel accepted in argument, that the requirements for statements under the 1996 Act are far more detailed and require a higher degree of specificity than is the case with the short and relatively simple provisions of section 140.
- Section 140(4), in my judgment, requires the following: (1) an assessment of (a) the subject's educational and training needs and (b) of the provision required to meet them; (2) a written report of that assessment.
- In my judgment, the assessment of the provision to meet those needs should not be merely a set of recommendations as to what would in theory, or ideally, be required, but should identify what can actually (and realistically) be provided. To assess and report on merely theoretical provision would not, in my judgment, be provision which was "required to meet" the needs identified for the purposes of section 140(4)(b).
- This approach is consistent with that adopted by Sullivan J in the context of SEN in the case S v Swansea City Council [2000] ELR 315 where, following an earlier unreported decision of Harrison J in Ex parte W (1994), he underlined the fact that, where the question of "provision" was being addressed in this context, this clearly meant provision in the real world:
- While the statutory context here is different from that considered by Sullivan J in S, in my judgment the same reasoning is compelling here. The statutory requirement is for provision to meet actual needs and this can only be met by assessing what is available in the real world. If the provision is not actually available, then it is difficult to see how it can meet the needs and assist the LSC in the discharge of its own functions subsequent to the report. It is accepted by Mr Oldham on behalf of the Council that at the very least, the Council must be reasonably satisfied that the stipulated provision can actually be met. Further, the Council must reach that judgment at the time of making its assessment and in reporting.
- The requirement to report has also to be considered. Section 140(4) stated that the report is the result of the assessment and, in my judgment, this means that the report must reasonably reflect in sufficiently clear and intelligible form the conclusions of the assessment. The report, like the giving of reasons, must be adequate and intelligible and state the principal important conclusions of the assessment so that they are tolerably clear, not only to the informed reader but in particular to the LSC which must have regard to them in discharging its own duties: see section 13 of the 2000 Act. The report must adequately cover the principal aspects of the assessment because of the LSC's duty to have regard to it, and it will fail in its function as a report in the assessment process intended to inform the LSC's own duties if it does not sufficienrly deal with those aspects.
- That said, the content and level of detail in the report must depend on the circumstances of the individual case. Some cases will demand a greater degree of detail than others and it is primarily a matter for the Council in carrying out the assessment and writing the report as to how it makes that assessment and expresses it in the report. That process is subject to the supervision of the court to ensure that it both complies with the legal requirements of section 140 and also that it has acted reasonably in discharging its functions. As with decisions of this nature, the court will be slow to interfere on Wednesbury grounds with matters of judgment entrusted by statute to the Council. However, subject to what I have just stated, I would expect the report to cover the key matters arising with regard to the needs under section 140(4)(a) and the provision identified to meet those needs. If it fails in these respects it would not , in my judgment, amount to a reasonable discharge of the duty to provide a written report of the assessment.
- When approaching such a report and considering whether it meets the requirements of section 140, it is necessary to bear in mind that it is not a commercial contract or statute which is under scrutiny. This is a common approach in public law cases covering a wide variety of areas where judgments are entrusted to expert bodies. As Sullivan J held in S at page 329, by analogy with the planning case of Seddon Properties Limited v Secretary of State for the Environment and Macclesfield Borough Council (1978) 42 P&CR 36, the report "should be read as a whole and in a common sense way". Clearly, if that is an approach to be expected following a planning appeal, it would be unreasonable to require any higher standard of a local authority producing a report under section 140(4). Nonetheless, even if that approach is taken, if it is clear that if the exercise has not been carried out lawfully or that there has been a material error in the process, then the court will intervene.
- I turn now in that context to the issues in this case. Following discussion with counsel at the outset of this case, it seems to me that the issues arising in the current state of affairs following the issue of the July 2008 report (which post-dated the application for judicial review) are as follows. Firstly, did the report comply with section 140(4)? Secondly, in particular, had the defendant properly considered, and reported on, the question whether the provision required to meet the Claimant's need could reasonably be made in reality?
- Mr Friel for the Claimant criticises the report in two principal ways. Firstly, he listed its failures to reflect the accepted recommendations of the Clifford report. In particular he notes failures regarding teaching support in paragraphs 2 and 5 of the Clifford report and generally with regard to recommendation 8. He also criticises the reference to recommendation 4, although in my view that latter point is not well-founded given that the language used in the report does refer to a further assessment. Secondly, he submits that the Council simply has failed to satisfy itself of the practicalities of provision in the real world, has not reported on such matters and therefore cannot have properly discharged its duties either to assess or report under section 140(4).
- Mr Oldham for the defendant submits that the Council has no intention, and had none in writing the July report, to derogate from the Clifford report. He said that the report was specifically referred to in the boxes in section 4 and was attached to the report, and the report should be viewed in the light of the fact that it fully contained the Clifford report and all the recommendations in detail. He says that the deficiencies identified by Mr Friel in comparison with the Clifford report recommendations are effectively nit-picking since they were simply summaries of what was set out in the Clifford report.
- He also submits there is no evidence that the Council has failed to consider that provision can reasonably be made in the real world and he noted as follows:
- In my judgment, had the issue simply been one of the adequacy of the summary of the Clifford recommendations in the boxes in section 4 of the report, I would not have accepted the detailed criticisms of Mr Friel since the report itself is referred to as a whole and the Council has confirmed their intention not to derogate from its recommendations. Indeed, this was the position that Connexions had adopted in the January 2008 report and they had simply attached the Clifford report. In my judgment, it would have been perfectly acceptable for the Council to have put in the box in section 4 of the report simply a note, for example, to "See the detailed recommendations in the Clifford report". That would have been sufficient in terms of the identification of the needs and what was required, although that would not have itself answered the question about provision.
- However, the matter does not end simply with the drafting or summary of the Clifford recommendations, and in the end, although I remind myself that I should be slow to interfere with the exercise of judgment entrusted to the Council under statute, it does appear to me that the Council has failed to comply with section 140 and has erred in law. I identify such errors in the following respects. Firstly, there are clear indications that despite the complete acceptance of the Clifford report's recommendations, they have not been correctly understood. This is of particular importance given that it is accepted, as Vivienne Clifford has stated, that the whole of the provision recommended was needed in order to secure the best and most reasonable means to meet Stephen's needs.
- In particular I note, firstly, that the Clifford report's recommendation 5 that it was teaching not learning support which was required. Recommendation 5 stated:
- Mr Davis' witness statement of 12th September notes at paragraph 8:
- Secondly, I do not accept that the Council has properly complied with the requirement to assess the provision to meet the identified needs in terms of what is actually available. I am not satisfied that the Council had concluded what provision might reasonably be expected to be available at the time it purported to complete the assessment and produce the report in July 2008. There is no sign in the report itself that this has occurred. Whilst that is not of course itself conclusive, there are clear indications in the report that the exercise was at least incomplete, and there is the repeated reference from the January 2008 report in the proviso in the "Intended Destination" section of the report – "South Downs College is the best option for Stephen, provided the adjustments outlined in Vivienne Clifford's report are fully implemented".
- It is also significant that Mr Oldham told me in submissions that "the local LSC will know the local provider. If LSC decides to provide and meet the needs . . . then it will fund them". As I pointed out during argument, this suggested that the Council was leaving to the LSC the consideration of whether the provision could be made in reality. In my view, the proper approach was for the Council, having accepted the recommendations in the Clifford report, should have satisfied itself that the provision was available before concluding its assessment and reporting. It is then for the LSC, having considered this report, to apply its own judgment under sections 3 and 13 of the 2000 Act with regard to reasonableness and funding of that provision. However, in the present case the Council in carrying out the assessment under section 140 seems to me to have confused its own role with the distinct functions of the LSC.
- I also reject Mr Oldham's submission that the requirement for the assessment and the report to deal with actual provision was not made clear by the Claimant in correspondence. I do not regard this as an answer to the Council's failure to meet its legal duties under s. 140. However, in any event the point is a bad one. I have referred at length to the ample correspondence on this issue and it seems to me that the Council simply cannot have failed to be aware that the Claimant expected the issue of availability of the provision to be both properly considered and addressed in the report. Indeed, it was set out in correspondence, as a concern in the grounds of challenge 9which (preceded the report), and it was mentioned again in the witness statement of Vivienne Clifford. Although the Council complained that Stephen's parents had not set out a list of what they wanted to appear in the report, in my judgment the correspondence in June 2008 made it sufficiently clear in principle what Stephen's parents expected the report to deal with. The Council simply cannot hide behind the lack of a shopping list of requirements for the report the plain fact that the solicitors for Stephen's parents had stated in clear terms the need to identify how in practical terms provision would be made.
- The absence of direct evidence from the Council as to what it took into account, and how it went about the provision in the assessment troubles me to an extent, but against the background of a constant reiteration of Stephen's parents' concerns as to the practical provision of assistance, the Council must have been aware of the need to deal with this issue. Mr Davis' witness statement did not do so. Moreover, as I have noted, the report is defective in any event, since it fails to make clear that the Council is satisfied with the availability of the provision recommended, given the ambiguity of the sections of the report I have described.
- Moreover, having regard to other features of the evidence in the case, I am satisfied that, notwithstanding direct evidence from the Council, there has been failure to meet the requirements of section 140(4)(d) in the following respects:
- While it is correct that the boundaries between the Council's and the LSC's functions should be observed, it appears to me that in the present case the problem appears to have been that the Council (and Connexions before it) have left part of its functions in relation to the assessment of actual provision, which is for it to consider prior to reporting, to the LSC in the implementation stage. In my judgment, that approach is wrong in law. It follows that, even approaching the report and the assessment in the context of the constraints on judicial review, I consider there has been a failure to comply with the legal requirements of section 140.
- Since the LSC has accepted the report as being sufficient to allow it to start funding part of Stephen's requirements, it seems to me undesirable that I should quash the report and assessment, and Mr Friel agreed with this. I am also concerned that this process has been far too drawn out given the undisputed need to provide assistance to Stephen, together with the undisputed assessment of what he requires, given the acceptance of the Clifford report. There appears to me to have been unacceptable delay, principally on the part of Connexions, and notwithstanding that the Clifford recommendations of January 2008 were wholly accepted.
- I therefore propose to make a declaration in the following terms:
- I sincerely hope that this matter can now be brought to a genuinely speedy conclusion given that Stephen has only another 18 months before the end of provision on his 20th birthday and given the unanimity of the view that the Clifford recommendations in their entirety represent the appropriate way to address his needs, and that, provided it can make the provision and funding is available, South Downs is a suitable provider to meet Stephen's needs.
- MR FRIEL: My Lord, you will remember that Mr Oldham asked for written submissions on costs to be addressed to you in chambers. Was there any particular time limit that you wished to set?
- THE DEPUTY JUDGE: Do you know what Mr Oldham's availability is over the next few days?
- MISS ROGERS: I do not, I am afraid.
- THE DEPUTY JUDGE: What I will direct is as follows: that submissions on costs should be made to me in writing in my chambers to avoid delay and that I should receive submissions from Mr Friel by close of business on Monday 23rd September and from Mr Oldham in response by Thursday 26th September. Any further representations from Mr Friel --
- MR FRIEL: My Lord, could I ask your Lordship to put the time slightly forward. I will be in North Wales for the rest of the week. Would it be possible to take it over to the 24th?
- THE DEPUTY JUDGE: Yes. Any further submissions, Mr Friel, can you do them in a day?
- MR FRIEL: Given your judgment, my Lord, it is highly unlikely that I would wish to make them, so I would say a day.
- THE DEPUTY JUDGE: Any further submissions from Mr Friel by Friday 27th. I will hand down a costs judgment in writing. If, of course, the issue can be agreed then submit it to me as soon as possible and I will make the order.
- MR FRIEL: My Lord, yes. Mr Oldham will need to consider the terms of the judgment anyway.
- THE DEPUTY JUDGE: It certainly will not bear on what he seemed to be about to say yesterday.
- MR FRIEL: I have nothing further to add myself.
- MISS ROGERS: Just one matter, my Lord. Would you be content for submissions on appeal to be sent with the submissions on costs or would you like me to address you on that now?
- THE DEPUTY JUDGE: Are you in a position to address me on it?
- MISS ROGERS: Very briefly, my Lord. I am instructed that Bromley would wish to appeal, notwithstanding that you decided not to quash the judgment, in that your declaratory judgment will have a knock-on effect on the way they prepare these assessments and reports. There is no Court of Appeal authority on this as yet. There is no statutory guidance and therefore there is a point of real significance for local authorities in deciding how to go about this which is one that is right for the Court of Appeal to hear.
- THE DEPUTY JUDGE: Mr Friel?
- MR FRIEL: My Lord, I accept that this is an important judgment throughout, but my respectful submission is that this is a case where the facts, unless there is a public policy issue such as outlined in your judgment, mean that there is no chance of success that can be described as reasonable on which the Court of Appeal would grant permission.
- THE DEPUTY JUDGE: Miss Rogers, I am afraid I am not going to grant permission. The approach I have taken to section 140 is a perfectly standard public law approach to producing documents and decisions. The principles that I have said should be adopted towards considering the content and interpretation of that report reflect those adopted by Sullivan J for statements of special educational needs and there is no new ground in terms of public law principles. I therefore do not think this is a case which, although it is the first case under section 140, actually breaks new ground in terms of the relevant principles. I am afraid I refuse permission. Is there anything else?
- MR FRIEL: I can think of nothing else myself, my Lord.
- THE DEPUTY JUDGE: Thank you, and thank Mr Oldham for his assistance.
"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. Background
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:
- Literacy
- Numeracy
- ICT
- Citizenships
- 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….
… 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. Conclusion
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.