England and Wales High Court (Administrative Court) Decisions

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

		Royal Courts of Justice Strand London WC2A 2LL
		4 March 2008

1. MR JUSTICE MITTING: Section 324(1) of the Education Act 1996 requires a local authority to determine the special educational provision which any learning difficulty a child may have calls for, and to make and maintain a statement of his special educational needs if the child falls within section 323(2). A child falls within that sub-section if he has special educational needs and it is necessary for the local authority to determine the special educational provision which any learning difficulty he may have calls for.
2. Under section 326 the parent of such a child has a right of appeal to the Special Educational Needs and Disability Tribunal ("SENDIST") when the statement is first made, if an amendment is made to it, or if after conducting a further assessment the local authority decide not to amend the statement.
3. Mrs R's son, J, was born on 10 September 1997. He is autistic. A statement of special educational needs is maintained by Bournemouth Borough Council in respect of him. It was finally made or revised on 17 May 2007. It specified the provision that needed to be made for him, and identified the school at which it was to be made -- Linwood School, a day special school. Mrs R was dissatisfied with the statement, both as to the detail of provision that was to be made for J and as to the school at which it was to be provided. She was represented by solicitors until 3 October 2007 in her appeal. She ceased to retain those solicitors on or about 3 October 2007 and instead sought the assistance of a Mr Dance of a charitable educational organisation with the acronym IPSEA. He represented her at the hearing of her appeal on 10 October 2007.
4. The solicitors who had represented her until 3 October 2007 had written on that date to the Tribunal indicating the withdrawal of her appeal against the identification of Linwood School as the identified school. The solicitors also submitted on the same day and by fax two specialist reports: a speech and language therapy report by Margo Sharp, and an occupational therapy report by Barbara Marshall, which they had had in their possession for a period before 3 October 2007. Margo Sharp's report was dated 15 September, and Barbara Marshall's 6 September.
5. Additionally, and before 3 October 2007, the solicitors indicated that they also wished to rely on a core assessment conducted by the local educational authority itself of May 2007, which had plainly been available to Mrs R and her advisers since about that time.
6. SENDIST has rules of procedure, which are contained in secondary legislation approved by Parliament, the Special Educational Needs Tribunal Regulations 2001. Unlike many Tribunals, SENDIST does not routinely conduct directions hearings, so that whereas in the case of many Tribunals the times within which procedural steps must be taken, in particular those steps required to prepare for a hearing, are not specified in the rules but are left to the direction of the Tribunal, that is not the position in the case of SENDIST. The rules are tightly prescriptive. Rule 9 provides that "during the case statement period" the parent may deliver to the Tribunal a written statement of his case, which may include the views of the child and must include the written evidence on which the parent intends to rely if not previously submitted.
7. Rule 9(2) permits, with the leave of the Tribunal or the President of SENDIST and in exceptional circumstances, the amendment of a notice of appeal and the delivery of a supplementary statement of reasons. The "case statement period" in rule 9(1) is the period specified in the notice given under regulation 18(1), namely 30 working days after the statement of special educational need is made. Rule 33 permits late written evidence to be admitted. It provides:

"(1) At the beginning of the hearing, a party may submit further written evidence which satisfies the conditions set out in paragraph (2) unless the tribunal, after considering any representations from the other party, is of the opinion that it would be contrary to the interests of justice.

(2) The conditions referred to in paragraph (1) are that -

(a) the evidence was not, and could not reasonably have been, available to that party before the end of the case statement period;

(b) a copy of the evidence was sent or delivered to the Secretary of the Tribunal and to the other party without undue delay and, in any event, at least 5 working days before the hearing; and

(c) the extent and form of the evidence is such that, in the opinion of the tribunal, it is not likely to impede the efficient conduct of the hearing.

(3) If paragraph (1) does not apply, the tribunal may give a party permission to submit further written evidence at the hearing if it is of the opinion that -

(a) the case is wholly exceptional; and

(b) unless the evidence is admitted, there is a serious risk of prejudice to the interests of the child."

8. Rule 34 gives the Tribunal broad powers to consider evidence. It provides:

"(1) In the course of the hearing the parties shall be entitled to give evidence, to call witnesses, to question any witness and to address the tribunal both on the evidence, including the written evidence submitted before the hearing, and generally on the subject matter of the appeal:

Provided that neither party will be entitled to call more than two witnesses to give evidence orally (in addition to any witness whose attendance is required pursuant to paragraph (2)) unless the President has given permission ... or the tribunal gives permission at [a hearing].

(2) Evidence before the tribunal may be given orally or by written statement, but the tribunal may at any stage of the proceedings require the personal attendance of any maker of any written statement:

Provided that a party shall only be entitled to give evidence by written statement if such evidence is submitted with the notice of appeal or the statement of his case or in accordance with regulation 33.

(3) The tribunal may receive evidence of any fact which appears to the tribunal to be relevant."

9. Regulation 32 deals with the procedure to be adopted at the hearing and gives the Tribunal wide powers. It is not necessary for me to set out the terms of rule 32 in this judgment.
10. Rule 35 gives the Tribunal the power to adjourn:

"(1) The Tribunal may from time to time adjourn the hearing.

... "

The power of adjournment is unfettered.

11. At the hearing of Mrs R's appeal, Mr Dance, her representative, sought the permission of the Tribunal to adduce written reports from three sources: the core assessment of May 2007 and the two specialist reports which I have already identified. He further sought permission to re-amend the statement of grounds relied on by Mrs R to reintroduce the question of the suitability of Linwood School and to advance her case that J should be educated at the Shieling School, a private school with fees in the order of £45,000 a year, which was weekly boarding.
12. Thirdly, he sought the adjournment of the appeal until February 2008 to permit a further educational psychologist's report to be obtained for Mrs R. The circumstances in which he made that application were that she had retained an educational psychologist to prepare a report. That person had experienced a family bereavement which had inhibited her from producing a full report. She had produced a six-page document which was in the possession of Mrs R and her advisers, but which she was unwilling to permit the Tribunal to see. Accordingly, at the appeal hearing she had no educational psychologist's report on which to rely. She wished to instruct another expert, and it was anticipated that it would not be until February 2008 that that expert could report and make a written report available to Mrs R, the local educational authority and the Tribunal. These issues were to some extent interlinked, as I shall demonstrate.
13. The local educational authority did not oppose any of the applications, but the Tribunal refused them all. It did so for differing reasons. First, as regards the core assessment of May 2007, it noted, as was the fact, that Mr Dance had accepted that he could not justify the late submission of that report. It noted, plainly correctly, that the report had been available to Mrs R before the end of the case statement period so that one of the conditions specified in regulation 33(2) was not fulfilled. It refused the application on that ground.
14. As to the occupational therapy and speech and language therapy reports of September 2007, the Tribunal noted that both reports had not been submitted until 3 October 2007 (a Wednesday). The Tribunal sat to hear the appeal on Wednesday 10 October. Its interpretation of rule 33(2)(b) led it to the conclusion that five clear days' notice was required before it could admit late written representations under rule 33(1) and (2). In the event, it concluded there had only been four clear days' notice, and accordingly it was not permitted by rule 33(1) and (2) to admit the document. It went on to consider whether or not there were exceptional circumstances or, in the words of the rule, whether the case was wholly exceptional and whether there was a serious risk of prejudice to the interests of the child, J, if the two reports were not admitted. It concluded that the case was not wholly exceptional and that there was no risk of prejudice to J if it were to refuse the application, which it did.
15. As to the third application for an adjournment, the Tribunal concluded that a lengthier adjournment would not be in J's interests, and that in any event there was sufficient evidence in the dossier available to it to enable it to make a decision. The dossier in fact contained over 250 pages of documents, amongst which were to be found the reports from various experts, including two occupational therapists, two speech and language therapists and an educational psychologist. There was however a difference between the report of the occupational therapist upon which Mrs R wished to rely, Barbara Marshall, because that report went into somewhat greater detail than did the other reports about the provision which should be made for J, but, of greater significance, concluded that that provision could best be met at a residential school such as the Shieling School.
16. Having refused those three applications, the Tribunal went on to consider the appeal on the evidence that it had. It noted and accepted agreements between Mrs R and the local educational authority as to statements in the statement of special need which should be made, and reached its own decision on the addition of a paragraph relating to speech and language therapy. I need not trouble with the precise terms of the addition, but in those respects it allowed the appeal.
17. One further statutory provision requires to be noted. Section 347 of the 1996 Act empowers the Secretary of State to approve an independent school as suitable for the admission of children with special educational needs, but by sub-section (5) prohibits any person, including therefore the Tribunal, from exercising any function under this part of the Act so that a child with special educational needs is to be educated in an independent school unless the school is for the time being approved by the Secretary of State as suitable, or the Secretary of State consents to the child being educated there.
18. Mr Hyams, who appears for Mrs R, submits that consent is routinely given at short notice on appeals, but accepts, as he must, that the statutory requirement must be fulfilled before the Tribunal could allow an appeal whose effect was to identify as the appropriate school an independent school not authorised by the Secretary of State. The Shieling School is not such a school.
19. Mr Hyams submits that, on an appeal to this court on a point of law only, this court can and should ensure that the decisions of the inferior Tribunal are taken fairly. He accepts that the requirement is procedural, but he submits that if it is my view that the decisions were not fair or taken fairly, then I must substitute my own view as to what should have occurred and so direct the Tribunal.
20. Mr Purchase, for the Tribunal, submits that the Tribunal is bound by its rules. It is not permitted to depart from them. It has applied them on the facts of this case, and accordingly no error of law on its part can be shown in this appeal.
21. There is, at the highest theoretical level, a difference of opinion between those two approaches, exemplified in decisions of this court: in particular, the observations of Sedley J in R v Cheshire County Council ex parte C [1998] ELR 66 in which he observed:

"It follows that in the ordinary case, where a power of adjournment is at large, there is no true margin of appreciation for the Tribunal; the court itself will decide on the relevant material whether fairness required an adjournment."

22. At the opposite end of the spectrum is the decision of Popplewell J in West Glamorgan County Council v Confrey and others [1998] ELR 121 in which he observed, applying a more conventional view of the jurisprudence in this area, that:

"... whether an adjournment should be granted is a matter for the discretion of the judge or the tribunal and he should be guided in the exercise of that discretion by his assessment of where justice lies. Many and diverse factors will bear upon the exercise of that discretion. I do not think it is possible myself to enumerate them all or wise to attempt to do so. In the end the tribunal, or the judge, has to exercise a discretion and seek to do justice on balance between the parties ... I do not think the principles are in dispute and nor do I think that it can be in dispute that for a Court to exercise an appellate jurisdiction in relation to an exercise of discretion, the Court has to be satisfied that the primary Court or tribunal has exercised its discretion properly. It is not enough for the appellate tribunal or Court to say that they would have come to a different conclusion."

23. SENDIST is a creature of statute. Because it does not itself conduct directions hearings, it has been thought by Parliament to be necessary to specify with greater detail than is usually the case, when various procedural steps must be taken by parties to appeals. It is not, in my judgment, for this court, when examining discretionary decisions of the Tribunal or procedural judgments made under its rules, to examine the rules with a critical eye, let alone with a view to seeking ways around them, if in the personal view of the judge they do not adequately provide for fairness in every situation. These rules do offer a good measure of flexibility to the Tribunal. The power of adjournment can be used in appropriate circumstances where the Tribunal considers that it cannot deal fairly with an appeal without considering late submitted documents, even if perhaps, and exceptionally, the late documents cannot be admitted under rule 33(3). The Tribunal can always admit the oral evidence of any person, including an expert, even if no written report is admitted or precedes the giving of oral evidence.
24. What the Tribunal cannot, however, do is to admit written reports when no witness is to be called to give oral evidence pursuant to the report, except where the provisions of rule 33 permit. Lest it be thought that those restraints on the power of the Tribunal are without purpose, the purpose of the restraints are apparent once one understands the way the Tribunal functions. The Tribunal comprises three people: the Chairman (a lawyer) and the two lay members -- specialists in various fields of educational endeavour. It is a specialist but informal Tribunal. Its members receive, in good time before the hearing of an appeal, the dossier containing all written reports upon which the appeal is in part to be considered. The dossier will of course in the ordinary case be supplemented by oral evidence, but it is obviously important, before the Tribunal hears any appeal, that each of its members is fully informed of the very considerable detail contained in the dossier before the oral hearing starts. Consequently, it is necessary for parties to an appeal to submit all of the written reports upon which they rely in good time to permit that to occur. Of course rule 33(3) and the power of adjournment provide exceptional let-outs. In a case in which the appeal could not truly be fairly determined without the use of one or both means, the Tribunal has the power to use those means. But in the ordinary case, it is important for the proper functioning of the Tribunal that all reports are submitted in adequate time to permit them to be read and understood by the members.
25. Further, as the President of the Tribunal, Lady Hughes, has made clear in a helpful written statement, the Tribunal attempts to do its work with dispatch:

"Since taking over as President, I have always impressed on chairs and members the need to avoid adjournments unless absolutely necessary. Time is of the essence in hearing our appeals; four months represents a term out of a child's education and we aim to complete an appeal from registration to issue of decision in that time."

26. Accordingly, unless the parties comply strictly with the time limits laid down in the rules, there is the very real danger that the sensible policy adopted by the Tribunal of determining these appeals quickly will be frustrated. It will not be in the interests of the ultimate object of these appeals, the child concerned, that that should occur.
27. Applying those considerations to the reasoning of the Tribunal in this case, the following conclusions emerge. First, the Tribunal was plainly entitled to refuse to admit the core assessment for the reason which it gave. It had been available to Mrs R before the end of the case statement period. The case was not wholly exceptional, and there was no risk of prejudice to the interests of the child, J, if it were not to be admitted.
28. Secondly, the two expert reports were not submitted in time. Mr Purchase submits that the wording of rule 33(2)(b) is capable of only one interpretation: the requirement that the evidence be sent or delivered to the Tribunal "to arrive at least five working days before the hearing" means five clear days before the hearing. Plainly, it does. It is not necessary to look outwith the wording of this rule to other similarly but not identically worded provisions in other legislation or rules to reach that conclusion. There is simply no alternative as a matter of language to the proposition that he advances. It must arrive before the hearing. It must arrive at least five working days before the hearing. The rule does not say that it must arrive by the fifth working day before the hearing, language which would be appropriate to accommodate a report served on these facts on 3 October; it provides that it must arrive "at least five working days" before the hearing. Those words are apt and apt only to indicate that five full working days or, in other language, clear working days, must separate the arrival of the evidence and the beginning of the hearing.
29. Accordingly, the Tribunal was right to conclude as a matter of construction that the requirements of rule 33(1) and (2) had not been fulfilled. It went on to consider whether the case was wholly exceptional, and decided that it was not, because clearly it was not. These reports had been available before and could easily have been provided in time. It, as the specialist Tribunal, was better placed than anyone to judge whether there was a serious risk of prejudice to the interests of J and decided that there was not. Such a conclusion was open to it. Mr Hyams has not attempted to persuade me that that aspect of his reasoning was plainly wrong.
30. As to the adjournment, the Tribunal concluded that a lengthy adjournment would not be in J's interests. It did so against the factual background which I have set out, namely that this is not a case in which, for reasons beyond the control of Mrs R or any relevant expert, the expert on which she wished to rely could not give evidence as, for example, in the case of ex parte C, where the expert on which the appellant wished to rely on had gone down with the flu; or L v Royal Borough of Kensington and Chelsea [1997] ELR 155, where the hearing had been advanced and the appellant's expert was unable to meet the newly fixed date. This is a case in which Mrs R wished to retain another unidentified expert in the hope that that person might support the view which she had plainly formed that it would be in J's interest not to attend Linwood School, but another school, possibly Shieling School.
31. In those circumstances, bearing in mind Lady Hughes' comments about the importance of a term to a child, the Tribunal was plainly entitled to refuse to adjourn the case until February 2008 as it decided. For those reasons, the Tribunal, in my judgment, committed no error of law, and this appeal must be dismissed.
32. MR HYAMS: Thank you, my Lord. I am publicly funded and I ask for the appropriate order in that respect.
33. MR JUSTICE MITTING: You want an order for public funding assessment of the appellant's costs?
34. MR HYAMS: Yes, my Lord.
35. MR JUSTICE MITTING: Yes, you can certainly have that. Mr Purchase, does the Tribunal, who have instructed you, and I am very grateful to them for doing so and for your submissions, seek any order for cost against the appellant?
36. MR PURCHASE: We do not seek any order. We are happy to let matters lie as they are. My Lord, one thing which occurred to me which I was struggling to check, and I am sure this is my fault, I was not quite sure whether your Lordship had reached a view in your judgment as to the first ground of appeal on amending the notice of appeal to allow the school to be argued.
37. MR JUSTICE MITTING: I am sorry, you are quite right, I did not expressly cover that. Would you like me to do so?
38. MR PURCHASE: It is for your Lordship.
39. MR JUSTICE MITTING: The Tribunal also refused to allow Mrs R to amend her grounds of appeal to identify the Shieling School as the appropriate school for J's needs. It had a freestanding power under rule 9 to allow or refuse to allow such an amendment. It noted that Mr Dance made an application to amend the grounds of appeal, but did not expressly state that the amendment was proposed to substitute the Shieling School for Linwood School. The written statement of the Tribunal's decision did not give the reason for refusing to allow that amendment, but the Chairman's handwritten notes noted, correctly, that there was no DFES approval for the Shieling School.
40. The written statement also noted that Mrs R had been advised that there was no point in naming another school, Beaucroft School, in the statement, not least because Mrs R did not consider that school to be appropriate. The reason given by the Tribunal for refusing to allow the change was that there had been no material change in J's circumstances between the date of the withdrawal of the appeal against that part of the assessment on 3 October 2007 and the date of the hearing, only a change of representation. It was entitled to reach that conclusion, although it might have been more helpful if it had set out the underlying reason, that the Shieling School had not got DFES approval so that as matters stood it could not be identified as the appropriate school in the statement by the order of the Tribunal under section 347 of the 1996 Act.
41. In those circumstances, it was entitled to reach the decision that it did, and that aspect of its decision, like the other matters relied on, do not demonstrate any error of law in its approach. I dismiss the appeal on that ground too.
42. MR HYAMS: Thank you, my Lord.
43. MR PURCHASE: I am grateful.
44. MR JUSTICE MITTING: If asked to approve a transcript, I will incorporate that into the body of the judgment so it does not appear as an untidy postscript. Anything else?
45. MR HYAMS: No, my Lord.
46. MR PURCHASE: No, my Lord.
47. MR JUSTICE MITTING: Thank you both.