QUEEN'S BENCH DIVISION
Strand, London, WC2A 2LL
B e f o r e :
| THE QUEEN
(On the application of)
P (a child by his mother and litigation friend KP)
|- and -
|THE ROYAL BOROUGH OF WINDSOR & MAIDENHEAD
LEARNING & SKILLS COUNCIL
for the Claimant
Mr Peter Oldham QC (instructed by The Principal Solicitor of the Defendant)
for the Defendant
The Interested Party did not appear and was not represented
Hearing dates: 25 May & 18 June 2010
Crown Copyright ©
Mr Justice Wyn Williams:
"A referral was received from Tim Lister, Educational Psychologist. [The Claimant] needs to transfer to Key stage 5 provision in September 2009. [P] and his mother have been receiving support from Connexions and Tim Lister in respect of this, however Tim felt the wider social needs of [P] required assessment in terms of onward placement."
"East Berkshire College has advised it cannot meet his needs and the family are keen for [P] to remain in Steiner education at The Mount, a residential school that takes children up to 19 years of age. Connexions are approaching the Learning Skills Council for funding for this. [P] has had a 3 day stay at The Mount where he was assessed as being appropriate for their pupil group which has several special needs students. [P] loved his time there and did not wish to leave. This provides a positive indicator that he will settle well there if funding of the placement should be secured."
In other sections of the record the author makes points about P's dependence upon his mother and upon the need to develop a care plan which will lessen that dependence.
"From P's point of view, an integrated care and education package at a place he wants to be, using principles and routines with which he is familiar, represents an ideal solution.
From a restricted viewpoint of basic educational needs, an extended education placement at Holyport Manor would appear to provide adequately for his needs. Without seeing the care proposals following Social Care Services' assessment of P's needs, I cannot comment on the adequacy of the package that might be put together to meet P's wider needs beyond the school day. It is this latter issue which needs to be addressed, in my opinion, in determining the correct provision for P's future.
The evidence to date appears to support the contention that a Steiner environment is well able to meet P's overall needs."
"For P's post-16 education, the authority has approached Holyport Manor School, our own special school, and the school has offered a place in September 2009. It is possible that Holyport Manor School would be able to meet P's needs between 9am and 3.30pm but they do not offer the more holistic approach of a Steiner environment to which P is now so accustomed. P does not manage change well and so this could become an issue if he attends Holyport Manor School. Additionally, Holyport Manor School will be moving to a new site in September 2010 and there will be unavoidable change and disruption. It is far from clear how successfully P would manage such a situation.
Additionally, P's own expectations are that he will remain in a Steiner environment for post 16 and he has been clear that he does not wish to attend Holyport Manor School. There is potential for P's own feelings to impede his access to what is on offer at Holyport Manor School, if he were to attend there. Therefore, although a local authority funded school has offered P a place from September 2009, it is far from clear that such a placement would be successful and so I would urge that serious consideration is given to the request for P to be funded to attend The Mount."
"While in theory the local SEN school, Holyport Manor, would just meet P's basic educational needs, Holyport Manor would also be moving in September 2010. P does not manage change well, and he may very well struggle to adapt".
The Plan continued:
"It is agreed by all professionals working with P, education and social services, that the Mount is well able to meet P's holistic and educational needs and in an ethos that P has made great progress in."
"We are happy to continue P's statement of special education needs beyond the end of this academic year as long as P remains on the roll of the school. We continue to be of the opinion that Holyport Manor can meet P's needs for his post-16 education. However we are also approaching the 2 other nearer special schools to our area, Kennel Lane School in Bracknell and Arbour Vale School in Slough to see about whether they can meet P's needs as we are aware of P's feelings about Holyport Manor School.
None of these schools are Rudolf Steiner schools. Whilst we acknowledge that P has responded very well to the Steiner principles, we are of the view that an appropriate education can nonetheless be offered P as mentioned above. All of these schools would be a more cost effective arrangement for the local authority than P attending The Mount College and, as you will be aware, we are obliged to protect public funds."
The Claimant's solicitor's response was a very detailed pre-action protocol letter dated 4 June 2009. On18 June 2009 the Defendant provided a detailed response to the pre-action protocol letter.
"Thank you for your letter dated 30 April 2009. The LSC has not received an updated S.139 report and does not consider the report dated 26 February 2009 provides an adequate assessment of the learner's needs. However the position is that as P is under 19 and has a Statement of Special Education Needs and the local authority has identified a school which can meet those needs, he remains the responsibility of the local authority. Furthermore in the circumstances he would not meet the LSC"
This letter is clear in its terms. It indicates that the document entitled "Moving Forward Plan" prepared by Connexions was not an adequate assessment of P's needs. However it also indicates that the Interested Party was not prepared to fund a place at the Mount for P.
"I write to let you know that we will comply with your request subject to the following paragraph.
You mention that the Learning and Skills Council have told you that they contend that the assessment had not been properly performed. We have not been told of this. I should be grateful if you would let me know why the Learning and Skills Council hold this view. When we have heard from you we shall then be glad to revise the section S.139 assessment.
On the basis of that revised assessment we will consider afresh whether we should exercise our power to award P a placement at The Mount College. Finally we will then let you know whether we are prepared to make such an award."
"We have complied with your request made by way of your letter of 30 June both to revise the S.139 statement in relation to P and to consider exercising our power to place P at The Mount Camp Hill College.
I attach a copy of the revised S.139 statement together with a copy of the papers upon which it has been based.
We held a formal meeting on 16 July to consider the S.139 statement and our approach to its findings. I attach a note of the findings of that meeting. As you will see, we do not accept that it is necessary for a placement to be made for Ziggie at the Mount Camp Hill College and we offer a place instead at Holyport Manor School. I realise that this news will come as a disappointment to your clients. I note in passing that we have not yet been sent details as to what the Rudolph Steiner approach is and why it is essential (not merely desirable) for P. I have to say that our discussion yesterday might have been better informed had this been available.
Please take this letter as an offer of a place at Holyport Manor School. If accepted, we will insert this name into Part 4 of the new Statement without further ado. This school has on-site provision for speech and language therapy and occupational therapy, and will have no difficulty in meeting the provisions of the Statement of Special Educational Needs and the new S.139 Statement. We will offer home-to-school transport for P. As mentioned on another occasion, the school is to move to a new site in September 2010; the new site will have much improved respite facilities and it may be possible for P to avail himself of these from time to time if necessary.
Kennel Lane School in Bracknell Forest has also offered a place, and I have asked for this to be held open for the time being. P and his parents may care to visit before making a decision, though this visit may now have to be at the start of next term. I have to say that we will still need to check on the availability of therapies there (and the practicalities of arranging therapies there if necessary), but will do so if an interest is shown in Kennel Lane. In the circumstances, we will offer home-to-school transport to Kennel Lane too."
The Scope of these Proceedings
"(a). education (other than higher education) suitable to the requirements of persons who are above compulsory school age but have not attained the age of 19,
(b) training suitable to the requirements of such persons .
Section 2(2) provides that facilities are proper if they are
"(a) of a quantity sufficient to meet the reasonable needs of individuals, and
(b) of a quality adequate to meet those needs.
Section 2(3) directs the Council as to how it is to discharge the duty imposed upon it by section 1. It provides:-
"In performing the duty imposed on it by sub-section (1) the Council must
(a) take account of the places where facilities are provided, the character of facilities and the way they are equipped;
(b) take account of the different abilities and aptitudes of different persons;
(c) take account of the education and training required in different sectors of employment for employees and potential employees;
(d) take account of facilities whose provision the Council thinks might reasonably be secured by other persons;
(da) act with a view to encouraging diversity in the education and training available to individuals;
(db) act with a view to increasing opportunities for individuals to exercise choice;
(e) make the best use of Council's resources and in particular avoid provision which might give rise to disproportionate expenditure."
Section 2(4) provides that provision is not to be considered as giving rise to disproportionate expenditure only because that provision is more expensive than comparable provision.
"(2) If the Council is satisfied that it cannot secure the provision of facilities for education or training which are sufficient in quantity and adequate in quality for a person with a learning difficulty who is over compulsory school age but who has not attained the age of 19 unless it also secures the provision of boarding accommodation for him, the Council must secure provision of boarding accommodation for him."
"(1) Sub-section (2) applies if a local education authority in England
a) maintains a statement of special educational needs for a person, and
b) believes that the person who will leave school, at the end of his last year of compulsory schooling, to receive post-16 education or training or higher education."
Sub-section 2 provides that the authority must arrange for an assessment of the person to be conducted at some time during his last year of compulsory schooling.
"An assessment of a person is an assessment, resulting in a written report, of
(a) the person's educational and training needs, and
(b) the provision required to meet them."
Sub-section 7 provides that "post-16 education or training" means post-16 education or post-16 training within the meaning of part 1 of the 2000 Act.
The Assessment under Section 139A Undertaken by the Defendant
"The document is intended to discharge the local authority's duty in P's case:
- To make an assessment, resulting in a written report, of
a) the person's educational and training needs; and
b) the provision required to meet them.
No further detail is prescribed as to the form or content of such a written report, or whether it should contain a recommendation for a specific placement for a young person. The care needs of a young person are specifically excluded from a report."
The Defendant's decisions of 16 July 2009
"4. The meeting noted:
a) P's solicitors had asked for the S.139 report to be revised and a decision taken on whether the authority would use its discretionary power to fund a place at The Mount Hill Community College, which is a residential college of further education. This is P's preferred placement.
b) Though it is not open to the authority to name a college of further education in part 4 of a statement of special educational need, it is open to an authority to bring a statement to an end and then to exercise its discretion.
c) A statement of special educational need had been made naming no school in part 4 and the period of 2 months within which an appeal may be made to the Special Educational Needs and Disability Tribunal is now running.
d) The needs expressed in the revised S.139 statement were in accordance with the accompanying background statements, the current statement of special educational need, and the Moving On plan recently prepared by Connexions (the last two named here being present in the background papers).
e) Holyport Manor School, Kennel Lane School (maintained by Bracknell Forest Borough Council) and Arbour Vale School (maintained by Slough Borough Council) all confirmed their ability to meet P's needs as described in his statement. This is in accordance with the authority's expectation of such schools with regard to these needs.
f) Holyport Manor School and Kennel Lane Schools have offered places (Arbour Vale is full).
g) The needs call for modest amounts of therapy that can be met by the residential therapists and Holyport Manor School.
h) No residential provision is required; indeed the report by RBM's social care confirms that only minimal amounts of respite care are needed.
i) The Learning & Skills Council would normally be expected to make provision for a young person under the age of 19 only where the needs were either so great or so particular that they could not be met locally.
j) The placement some years ago at the Rudolf Steiner School in King's Langley Hertfordshire had been made on the grounds that
k) It was no more expensive than a placement would have been at Holyport Manor and
l) It had accorded with parental preference.
m) The fact that such a placement had been made did not indicate that the Steiner School was the only school that could meet the needs either then or now.
n) No information has been forthcoming as to the particular elements offered exclusively by a Steiner School and why P required these.
5. The meeting concluded that:
a) No requirement exists for Steiner education (however much this might be preferred by the young person and his family).
b) The needs can be met by any of these schools named above.
c) It was impossible to recommend the Learning & Skills Council that it should make a placement at a residential college of further education.
6. The meeting resolved that:
a) A place be offered at Holyport Manor School to P. A place should be offered as an alternative at Kennel Lane School if the authority is satisfied that the therapeutic needs can be met adequately at Kennel Lane School. If the authority can offer both schools then P and his family can decide which offer to accept. Home to school transport would be offered to either school.
b) The Learning & Skills Council be advised that it would be inappropriate for a placement to be made at a residential college of further education in the light of the ability of the authority to make further placement locally.
c) Having considered matters, the authority will not place P at a residential college of further education, whether The Mount Camp Hill Community or elsewhere.
d) The authority will defend these resolutions in any judicial review or appeal to the Special Educational Needs & Disability Tribunal."
"9. How do I ensure that the assessment report complies with the law?
9.1 The key to this is ensuring that the report is fit for its purpose. The assessment should enable the LSC and education, training and other support service providers to determine that the provision will meet a young person's needs.
9.2 Local authorities will have to satisfy themselves that reports of assessments are compliant with Section 139A of the 2000 Act.
9.3 A report on a young person's needs should identify the most appropriate provision not just the characteristics of the provision but the provider and the actual programme of learning required for the learner to achieve progression. It should also include support needed to access learning provision, sensory aides, aides to assist movement or manipulation, staff ratios, level of supervision needed, specific professional support, e.g. nursing or physiotherapy. This requires input from a number of agencies and professionals and should be collated, possibly using the LfLW framework, to allow appropriate provision to be identified and to inform the LSC's funding decision.
9.4 The report should be clear where and how the learner's needs can be met and identify most appropriate provision. When transition planning is carried out effectively the provision is identified at an early stage and the provider will have a good understanding of the learner's needs and can prepare to accommodate them well in advance. This is a change to the previous guidance and reflects the recent legal ruling made in the case of Alloway v The London Borough of Bromley (dated 17 September 2008).
9.5 It is important that the LSC receives this information in a timely and consistent manner to inform planning and development with providers to ensure the most effective use of funding and the availability of appropriate provision to meet the needs of young people."
"3. An assessment of a person is an assessment, resulting in a written report, of
a) The person's educational and training needs, and
b) The provision required to meet them."
"[These statutory provisions] in my judgment, require 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 theoretic provision would not, in my judgment, be provision which was "required to meet" the needs identified for the purposes of the section.
This approach is consistent with that adopted by Sullivan J in the context of SEN in the case S v Swansea City Council  ELR 315 where, following an earlier unreported decision of Harrison J in ex parte W , he underlined the fact that, where the question of "provision" was being addressed in this context, this clearly meant provision in the real world.
"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 to the P school. The prescription in part 3 of the 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  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 the 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 pp13-14 of R v Secretary of State for Education ex parte W." (pp322G-323)
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. 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 duty; 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, 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 sufficiently 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 how it makes that assessment and expresses it in the report. The process is subject to the supervision of the court to ensure that it both complies with the legal requirement of [the statute] 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 [the statutory provisions] and the provision identified to meet those needs. If it fails in these respects it would not, in my judgment, amount to 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 [the statute] 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 page 329 by analogy with the planning cases of Sedan Properties Ltd v Secretary of State for the Environment & Macclesfield Borough Council  42 P&CR 36, the report "should be read as a whole and in a commonsense way". Clearly if that is an approach to be expected following a planning appeal, it would be unreasonable to require any higher standard of local authority producing a report under [the statutory provisions]. 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."
The second ground of challenge