Upper Tribunal (Administrative Appeals Chamber)

R ota JW through his mother DW as Litigation Friend [2009] UKUT 197 (AAC) (02 October 2009)

Case No JR/2050/2009

IN THE UPPER TRIBUNAL ADMINISTRATIVE APPEALS CHAMBER Before: Judge CMG Ockelton (presiding) Judge H Levenson Judge CG Ward

Attendances:

For the Claimant: Ms Aileen McColgan of Counsel, instructed by Messrs John Ford

For the Defendant: Ms Sarah Hannett of Counsel, instructed by in-house solicitor

Decision:

1. Permission to apply for judicial review is granted.

2. The claim is dismissed

.

REASONS FOR DECISION
1. JW was born on 18 September 1991 and at the time of hearing was thus almost 18 years old. There is a dispute between DW, his mother and the Defendant about the school named in Part 4 of an amended statement of special educational needs ("SEN") which the Defendant, on behalf of the local education authority, the majority of whose functions it performs, issued on 21 April 2009. That dispute is, in the usual way, a matter for the Health, Education and Social Care Chamber of the First-tier Tribunal and is to be heard by that tribunal on 4 November 2009.
2. The present application concerns a claim that the Defendant has failed to make suitable interim provision for JW pending the hearing of his claim by the First-tier Tribunal. It is common ground that the decision being challenged was that taken on behalf of the Defendant on 30 April 2009.
3. The Claimant's application was originally made to the Administrative Court (reference CO/8224/2009) on or around 30 July 2009 seeking expedition. Following an interlocutory order by Hickinbottom J (including that the proceedings should be anonymised under CPR 39.2) and refusal of permission on the papers by Cranston J on 18 August 2009, the case was referred to the Upper Tribunal under section 31A of the Supreme Court Act 1981 to be dealt with under its powers under sections 15-18 of the Tribunals, Courts and Enforcement Act 2007.
4. The relief sought in the proceedings was originally in the following terms:

"The Defendant provide suitable educational provision for the Claimant pending the final determination of the First-tier Tribunal appeal against his amended statement in any of the following ways by providing funding for:

i. A placement at [Z]

Home tuition for [the Claimant] by a suitable Orthodox Jewish home tutor; failing either

A suitable Orthodox Jewish male teaching assistant to attend [B School] with [the Claimant]."

The references to Z and B are to the education provision respectively put forward by the Claimant and the Defendant and are examined further below. At the hearing, Ms McColgan indicated that the Claimant was no longer seeking the relief at iii, even as a fall-back.

5. The Claimant is from an Orthodox Jewish family. His first language is Yiddish but he also speaks some English. He is the fifth of seven children and one of his older brothers has autism. The Claimant has a diagnosis of Autistic Spectrum Disorder with associated social communication difficulties. His condition is managed in part through control of his diet. The scope of the exclusions from his diet which have been found to have a beneficial effect on his behaviour is variously stated in the evidence before us, but as a minimum covers gluten and dairy foods and may go further. Additionally, he adheres to a strictly kosher diet. The Claimant's other difficulties include extremely severe constipation often with soiling.
6. The Claimant has had a statement of SEN since September 2004. For the two years prior to that, he had been educated by a combination of attending, with his mother, the C Centre (a secular institution), and home tuition. At all other times, his education had been in Orthodox Jewish schools. Pursuant to the statement as amended in 2006, the Claimant had attended the D School, funded by the Defendant. This was an Orthodox Jewish special school. As it does not take pupils after the academic year in which they turn 16, alternative provision was needed from September 2008. The issue was discussed at the 2007 annual review of the Claimant's needs. No representative of the Defendant was present, but in any event the form on which such reviews are recorded expressly negates any possibility that the Defendant would be bound by the discussion at such a meeting. Those who were present appeared to have proceeded on an assumption that the Claimant would proceed to the Z group of institutions, which provides both an independent Orthodox Jewish special school and a College. By the time of the 2008 annual review, likewise conducted without a representative of the Defendant being present, the expectation was that it was the Z College that the Claimant would attend.
7. The Claimant's mother took steps to secure his admission to the Z College from September 2008. The position in this regard is set out in an email of 1 July 2008 from Rabbi E of Z to the Defendant:

"…We received an enquiry some months ago from [the Claimant's mother] about a place for [the Claimant] in Z College for this September. I explained to her that for various reasons Z is not able to accept any new students into LSC [Learning and Skills Council] -funded College places for this September. However, we would be prepared to consider [the Claimant] for a place in Z Day School, which offers 14-19 provision, maintaining his LEA Statement of SEN (with amendments as necessary), with the understanding that the bulk of his education would be delivered at the Z College site, which has more appropriate facilities for him."

8. The email went on to explain that Z encouraged the Claimant's mother to discuss the matter with (among others) the Defendant but that she did not respond for a few months. By July 2008 she had applied to Z and accordingly copies of various documents were requested from the Defendant and these were provided. At this stage, Z were making it plain that they could not commit to accepting the Claimant, nor determine a fee, until after they had assessed him. (This is a convenient point to interpose that while, as will be seen, the respective roles to be played by Z College and Z School were potentially matters of some legal significance, there is absolutely no suggestion on the part of the Defendant, or of the Upper Tribunal, that Z through Rabbi E in proposing such a structure were doing anything other than trying to do their best for the Claimant within the resources available to them, nor that they were at any time anything other than entirely open with the Defendant about what was being proposed.)
9. The Claimant began his period of assessment in September 2008. No commitment was given by the Defendant to pay the fees at Z College (or School) but the Defendant was content to facilitate the process of assessment by Z of the Claimant and periodically enquired about progress.
10. On 19 November 2008, however, a report went to the Defendant's Complex Needs Panel. The purpose was to enable a decision to be taken on whether to fund the placement at [Z] Day School (sic), the cost of which was stated to be £30,525.32 per annum excluding transport. The report set out something of the history of the matter and attached an extract from the Claimant's then current statement (by then two years old) setting out his SEN and an email setting out Z's proposals. The report also included a paragraph that "Regarding local provision, an informal consultation was made with Ms F [the headteacher] for Post-16 provision at [B] School and she is confident that B can meet [the Claimant's] needs." There was no evidence before the Upper Tribunal as to the nature of the "informal consultation" or the basis on which Ms F, at the time the Complex Needs Panel met, had felt that B School (a local authority maintained special school) could meet the Claimant's needs. The decision of the Complex Needs Panel was that:

"The panel does not agree to fund the placement on the grounds of cost and would therefore be considered an inappropriate use of resources. Appropriate maintained post-16 provision has been identified that can meet [the Claimant's] needs at no extra cost."

11. During January 2009 the Claimant's mother met with the headteacher of B School to discuss issues of concern in relation to the Claimant's needs, including the provision of a diet which was both kosher and otherwise appropriate to his needs and the provision of leave of absence to facilitate religious observance. Ms F remained of the view that her school could make suitable provision for the Claimant.
12. On 3 April 2009 term at Z College ceased. The Defendant did not make any payment in respect of the placement fees at any time so the cost of the placement for the time he was there was borne by Z as a charitable matter. The Claimant's placement accordingly came to an end.
13. On 21 April 2009 the Defendant issued an amended statement of SEN. Like the report to and decision of the Complex Needs Panel, it must have been a key document informing the decision on interim provision which was before us, and it is thus right to record in general terms that we had a number of concerns in relation to it, to which we return below. Meanwhile, we note for the purposes of the latter part of this Decision that the statement (a) did not include any reference to the provision of a teaching assistant for the Claimant and (b) that the Claimant's National Curriculum Levels were Literacy 1a and Numeracy 1a, that is to say equivalent to a 5 or 6 year old (Year 1 Class).
14. On 22 April 2009 the Claimant's solicitors, who had been involved in the matter for a while, wrote to the local authority on whose behalf the Defendant acts, saying:

"This is an unusual case where a suitable teaching assistant will need to be appointed, who can meet [the Claimant's] specific religious and cultural needs. An appropriate orthodox Jewish organisation will need to be approached and a suitable appointment may take some time to put in place.

In the interim, please confirm that you will provide suitable full time home tuition for [the Claimant]."

The expectation of those advising the Claimant at this stage was thus

apparently that he would attend B School. Certainly the wording does not suggest a continuation of a placement at Z, because no teaching assistant would then be necessary.

15. The Defendant replied to the letter of 22 April 2009 by an email dated 30 April, in terms that:

"…I have asked Kash Yusaf, Special Schools Case Manager in the Learning Trust's SEN Assessment & Monitoring Team, to follow up this issue with [H] [a Jewish welfare organisation.]

Unfortunately, we are currently unable to provide a timescale in which an appropriate TA will be appointed. [Ms J], [H's] Teaching Service Manager, has put out a request for an Orthodox Jewish male TA but has not yet found an appropriate TA. She has told Mr Yusaf that she will be in contact once she has spoken with the Head Teacher at B. I will of course update you when more information is available.

With regard to your proposal of home tuition, The Learning Trust does not have any home tutors available for over-16s. Additionally, it would prove equally difficult to find an Orthodox Jewish home tutor as it is to find such a TA. As such, The Learning Trust is unable to offer this provision as an interim measure."

These positions were in essence repeated in formal judicial review protocol letters dated 30 April from the Claimant's solicitors and in a reply dated 19 May from the Defendants.

16. Meanwhile, the Claimant's solicitors had on 28 April lodged an appeal to the First-tier Tribunal against the naming of B School. Various documents had to be obtained by the tribunal to supplement the appeal and clarification provided as to the institution which the Claimant wished to be named instead of B. As a result, time passed and it was not until 20 July that the issues were clarified. No attempt was made by the Claimant's solicitors in this period to obtain an expedited hearing before the First-tier Tribunal.
17. Shortly before the judicial review proceedings were issued, the Claimant's solicitors instructed a Chartered Educational Psychologist, Ruth Birnbaum. In an initial response dated 27 July she indicated that in her view "a Jewish cultural and religious environment is a necessary part of [the Claimant's] educational provision. She subsequently amplified her position in a report likewise dated 27 July, emphasising that consistent provision between home and school life was "absolutely crucial for any child with ASD".
18. The Claimant has been out of school since 3 April 2009. This includes two periods of what would have been school holidays in any event. According to the Claimant's mother:

"[The Claimant's] behaviour has deteriorated and life has been very difficult. He is tense and unmotivated. He sometimes gets up as late as 11am because he has no routine or programme. At present [the Claimant] is at home for most of each day. I cannot leave the home for long periods because [the Claimant] needs constant care and it is difficult, due to his challenging behaviour, to attend appointments with him. Being out of school has had a detrimental effect on [the Claimant]. He longs to go back to [Z]. [The Claimant's] behaviour has deteriorated over the past few months. The tension is affecting the entire family.

[The Claimant] keeps asking to go back to [Z]. [He] loved his teacher and support worker. In mid-July 2009, [he] was invited to an outing with Z on condition he was supported by a carer. He had a wonderful time at [L] and beamed for three days afterwards."

19. What Z College had proposed in October 2008, having assessed the Claimant, was that he should:

"follow an individualised KS5 post-16 curriculum shaped primarily around his needs to continue to develop social and functional communication, social skills and integration, self-help and independence skills, meet his sensory needs, and vocational/creative skills (work experience, woodwork, horticulture, art and music). In addition he will have regular Jewish Studies lessons with a very practical focus to support his ability to be successfully integrated within his local ethnic community, plus an individualised programme of regular physical activity to promote his health and wellbeing."

There was no other evidence before the Upper Tribunal bearing on the educational provision it was proposed the Claimant should receive (if the Upper Tribunal were to order it) between the start of term in early September and November 2009 when it was anticipated the First-tier Tribunal would have heard the substantive appeal.

20. Where an amendment is made to a statement of SEN, the parent has a right of appeal: Education Act 1996 ("the 1996 Act"), s 326(1) (b). That appeal may be made against, among other matters, "the special educational provision specified in the statement (including the name of a school so specified)": sub-section (1A) (b). The appeal now lies to the Health, Education and Social Care Chamber of the First-tier Tribunal: see The Transfer of Tribunal Functions Order 2008 S.I. 2008 No.2833, paragraph 3 and Table 1 of Schedule 1, and The First-tier Tribunal and Upper Tribunal (Chambers) Order 2008, paragraph 5. The First-tier Tribunal is for this purpose constituted as a three person panel, a judge and two other members where each other member has substantial experience of educational, child care, health or social care matters: see the Practice Statement "Composition of Tribunals in relation to matters that fall to be decided by the Health, Education and Social Care Chamber on or after 3 November 2008", issued by the Senior President of Tribunals on 15 December 2008.
21. It was the practice of the former SENDIST, when hearing an appeal, to consider it on the evidence to the date of the tribunal's decision and not to restrict its consideration to what was known by the original decision taker. While we have not heard argument addressed to this point, this practice in SEN cases is in our view wholly consistent with the scheme and purpose of Part 4 of the 1996 Act, in allowing a tribunal to take into account all known relevant factors when it takes its decision and thereby to minimise the risk of undesirable further interruption to educational provision because circumstances had recently changed. The statutory appeal mechanism offers not a review examining the correctness of the decision when taken, but an appeal on the basis of the present, current position. The practice is consistent with authorities on predecessor legislation, such as R v Secretary of State for Education ex parte Davis [1989] 2 FLR 190 and with the Practice Direction issued by the President of the former SENDIST. It also is consistent with the power of review for a change of circumstances post-decision conferred in special educational needs cases by rule 48 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (SI 2008 No 2699).
22. Paragraph 11(5) of Schedule 27 to the 1996 Act, which was inserted by section 6 of the Special Educational Needs and Disability Act 2001 ("the 2001 Act") states that:

"A local education authority may not, under this paragraph, cease to maintain a statement if–

(a) the parent of the child has appealed under this paragraph against the authority's determination to cease to maintain the statement, and

(b) the appeal has not been determined by the Tribunal or withdrawn."

There is thus a provision suspending the effect of a local authority's decision in one specific context within SEN matters – the decision to cease to maintain a statement. This is however not the prevailing position in relation to SEN decisions generally and there is no statutory provision in the 1996 Act or elsewhere which suspends the effect of a decision taken by a local authority to name a different school in Part 4 of the statement.

23. Nor is there any provision for the granting of interim relief pending a tribunal hearing, either in the 1996 Act or in the relevant First-tier Tribunal rules.
24. There have been limited cases where relief has been sought in broadly similar circumstances. In R(G) v The London Borough of Barnet [2005] EWHC 1946 (Admin); [2006] ELR 4, the application was for permission to challenge a decision amending the statement of SEN itself and for interim relief pending the appeal to SENDIST (who then dealt with such appeals), rather than, as here, an application to challenge a decision specifically in respect of interim provision.
25. Ouseley J was first concerned to establish whether there was jurisdiction to order interim relief where there was an arguable point of law. He concluded that there was, relying on the decision of the Court of Appeal in Re M (A Minor) [1996] ELR 135. That is an issue which need not trouble us for exactly the same reason, as we are not concerned with whether to provide interim relief in the judicial review proceedings, but rather with whether the final remedy ordered in these judicial review proceedings should provide relief until the hearing of the appeal to the First-tier Tribunal. The existence of an arguable point of law remains relevant for us, but as the basis for granting permission as a necessary precondition to going on to consider the application for judicial review.
26. The second issue for Ouseley J was the interaction between judicial review and the existence of remedies available to SENDIST. He observed, referring to a case which pre-dated the introduction of paragraph 11(5) of Schedule 27 of the 1996 Act by the 2001 Act, that:

"The other case is R v Oxfordshire County Council ex parte Roast [1996] ELR 381 in which Dyson J held that the local education authority had power to cease to maintain a statement, even where there was an appeal before SENDIST, and the tribunal itself had no power to impose the stay. The substantive remedy before SENDIST does not mean that there are no circumstances, however exceptional, in which this court on the grant of permission to apply for judicial review should not require that some sort of interim relief be provided."

As Dyson J determined the point of construction against the claimant, he was able to conclude that the "discretion issue" (i.e. with regard to relief) did not arise. Even if the categorisation of it as a "discretion issue" implies that Dyson J was persuaded that it existed as discretion, we respectfully find it difficult to derive in this case as much support from ex parte Roast as Ouseley J was apparently able to in the case before him. Nonetheless, our view is precisely the same as that reached by Ouseley J. A court with a judicial review jurisdiction has power in such circumstances as the present to order relief including interim relief pending the decision of the First-tier Tribunal.

27. But the statutory structure clearly envisages that amendments to statements of SEN take effect forthwith despite any appeal: that is in distinction from decisions to cease to maintain a statement, which are suspended pending an appeal. Indeed, since as noted above sub-paragraph 11(5) of Schedule 27 to the 1996 Act was added by the 2001 Act, it can be seen that even when alerted to the fact that there might be categories of decision taken under the 1996 Act in respect of which a stay might be required, and with the legislative opportunity to include provision, the legislature still chose not to include provision for a stay in respect of decisions to name a particular school in part 4 of the statement.
28. The legislature, in not providing for any statutory mechanism for interim relief, has in essence provided that the general position is to be that there will be a period of time between when an appeal has been lodged and when it is heard, when a pupil with a statement of special educational needs will not be getting the educational provision which those acting for him consider he should receive and, depending on the circumstances, may not be getting (or may not be availing himself of the offer of) any educational provision at all. That is despite the fact that the very existence of an appeal process must imply that some appeals will be successful, often entailing the view that the original decision, which has been effective in the interim period, was a wrong one. While such an intervening period is scarcely likely to help the educational progress of any child with special educational needs sufficiently severe to warrant a statement, that is what the legislation envisages.
29. It follows that the statutory norm is that there will be no stay or interim provision pending an appeal against an amendment. In those circumstances it appears to us that the jurisdiction to order relief to the same effect in judicial review proceedings should be exercised with considerable restraint. We consider that an order such as that sought in these proceedings should be made only where there are exceptional circumstances.
30. It follows that even if there are errors in the decision taken on 30 April sufficient in principle to merit judicial review of it we would still refuse relief in the exercise of our discretion unless persuaded that the circumstances were exceptional. Statute has established that the intended route for challenging statements of SEN is by way of appeal. That has a number of advantages: the matter will be looked at by a tribunal with members with relevant expertise and they will do so with the benefit of any further evidence that has become available up to the date of hearing and in the light of the circumstances prevailing at that time. Special educational needs law is concerned above all with setting a right path for the future. Judicial review, looking at the methodology of a decision taken in the past and in respect of which circumstances may have moved on, will generally fail to provide what is required in this context.
31. Accordingly we consider whether the period in respect of which we are asked to make an order and the needs of this claimant and the other factors are such as to make the circumstances exceptional, as standing out from the circumstances of others with disputed statements of SEN in respect of whom appeals might be pending.
32. We conclude that they were not, for a number of reasons. The time period involved is likely to be relatively short – only a little over two months. The evidence that there was from Z about what they were originally planning for the Claimant had he started there previously was very general and, as there remained ongoing doubts about whether education was to be provided through Z School or Z College, it was unclear to what extent even what it did say remained applicable in the present context. There was no indication that any provision was being considered for the Claimant in respect of which he would lose an opportunity if he could not start it in September but had to wait until November: rather, the indications were that his programme would be "individualised" and, as such, was likely to be capable of being delivered with a later start date if that is what the First-tier Tribunal were to order. He would miss out on two months or so of education, which of course is regrettable, but as noted above, that is in the general case implicit in the legislative structure. Although it was urged upon us that the Claimant was entering Year 13 and thus his final year of schooling, we are not persuaded by this factor. The nature and extent of the Claimant's difficulties are such that he may well receive ongoing training and support in the future through (adult) Social Services, possibly even through Z College or (as does his brother) through the Day Services which Z also provide; and nothing before us suggests any radical difference between such provision and what is offered to him in Year 13.
33. A further factor bearing on our assessment that the impact of not having education from September to early November was not as great as was being urged upon us was the fact that the whole of the Summer term had been allowed to go by, apparently without any significant effort having been made before late July to speed up the hearing before the First-tier Tribunal. It would have been open to the Claimant's advisers to seek expedition. Whether to grant any such application would have been a matter for the First-tier Tribunal, subject to the possibility of applying for judicial review of that decision to the Upper Tribunal under the provisions of the Lord Chief Justice's Direction on Classes of Cases specified under section 18(6) of the Tribunals, Courts and Enforcement Act 2007.
34. We noted the evidence from the Claimant's mother about his behaviour as set out in paragraph 18 above and the effect on the family. Whilst we have every sympathy for the Claimant and for the efforts which his mother and others make to look after him, we have to decide whether the circumstances are exceptional in the context of pupils with statements of SEN. Autistic spectrum disorders, even those "of the more severe kind" (as the Claimant's was said by Ms Birnbaum to be) are by no means uncommon and the evidence did not enable us to regard the circumstances as exceptional. (Although in no way determinative, it is instructive to compare the circumstances of the pupil in R(G) v LB Barnet, one of the two reported cases where interim relief was ordered, where the child's needs were such that 52-week residential provision was required.)
35. Ms McColgan relied on three further points in support of the exceptional nature of the circumstances. First, she said that the Defendant was in breach of its own policy: but we are not satisfied on the evidence that the material before us evidenced such a policy. Secondly, we should have regard to the desirability of maintaining the status quo. But in this case, the status quo is that the Claimant was out of school and further, even if we viewed the status quo as being that he was attending Z, as he had been until April, in looking at the status quo one also needs to look at the status quo with regard to funding (see R v Worcestershire County Council, ex p. S [1999] ELR 46) and in this case the Defendant had never funded the Claimant's attendance at Z.
36. The last of Ms McColgan's further points related to an alleged breach of section 68 of the Education and Skills Act 2008, sub-section (1) of which is in the following terms:

"A local education authority in England must make available to young persons and relevant young adults for whom it is responsible such services as it considers appropriate to encourage, enable or assist the effective participation of those persons in education or training."

It seems to us that this adds little to the Claimant's case. Even if one were to assume that the section is capable of extending to the provision of a teaching assistant (a point which will have to await a case in which it needs to be decided), the services which the Defendant "considered appropriate" – prompted by the Claimant's solicitors – and which, as yet, they had not provided, were those of an Orthodox Jewish teaching assistant to enable the Claimant to attend B. This was precisely what the Claimant through Ms McColgan now no longer wanted in these proceedings.

37. Consequently, for the reasons in paragraphs 31-36, we consider that the circumstances are not exceptional. For the reasons we have given, therefore, this is not a case for the grant of the relief sought.
38. That is sufficient to dispose of these proceedings, but we should also refer to the concerns we have about the decision. It is those concerns that lead us to grant permission to apply for judicial review, although, as we have said, we dismiss the claim itself.
39. The first problem is that the decision appears to acknowledge that the Claimant needed the provision of a teaching assistant to assist him at B (or why else would the Defendant offer to provide one) to meet his religious and cultural needs. In A v Special Educational Needs and Disability Tribunal and London Borough of Barnet [2003] EWHC 3368; [2004] ELR 293 Mr David Lloyd-Jones QC (sitting as a Deputy High Court Judge) observed (at paragraph 22) that:

"It is well established and was common ground both before the Tribunal and before me that a child's Jewish religion and identity cannot constitute a special educational need (G v London Borough of Barnet and the Special Educational Needs Tribunal [1988] ELR 480 per Ognall J at 483-484). However, a decision-maker required to make decisions as to what are a child's special educational needs and the required provision must have regard to a child's Jewish religion and identity if they are relevant to that child's special educational needs or the manner in which they may be met (R v Secretary of State for Education ex parte E [1996] ELR 312 per Hidden J). "

As such factors are hardly referred to at all in the statement of SEN, we suspect that the decision of 30 April was taken without adequate information on this point. To that extent it appears to be defective.

40. Secondly, we find it surprising that under the heading "[The Claimant's] Medical Conditions" the statement recorded that "there are no reported difficulties in this area" when, on the evidence before us, there clearly were. Whether this because, as the statement records, medical advice was last taken as long ago as January 2004, we cannot be sure, but we conclude that the statement, and through it the decision of 30 April 2009, were taken without regard to material considerations, namely the Claimant's medical conditions and the up-to-date position on managing them.
41. We also note with some surprise passages in the decision that are clearly inappropriate, such as that "the Claimant's] statement should be reviewed at least every six months until [the Claimant] is five years of age" when the Claimant was aged 17 and moreover had not had a statement before the age of five; or the provision which the statement makes to ensure that the Connexions Service "is invited to the Year 9 Annual review" when the Claimant is about to go into Year 13. Provisions of the kind discussed in this paragraph suggested either poor use of cut-and-paste techniques or a failure properly to update a previous statement. They do little to promote confidence in the Defendant's decision-making processes. In view of the conclusions we have reached on other matters we do not need to consider further the impact in public law terms of these matters. We note that under section 326(5) of the 1996 Act, "Before determining any appeal under this section the tribunal may, with the agreement of the parties, correct any deficiency in the statement" and that would seem to enable shortcomings of the kind described to be put right on appeal.
42. We do not consider that Ms McColgan's arguments based on the European Convention on Human Rights add materially to her case. So far as Article 2 of Protocol 1 is concerned, applying the test in Ali v Headteacher and Governors of Lord Grey School [2006] UKHL 14; [2006] ELR 223, we concluded that the authorities had not "acted so as to deny to a pupil effective access to such educational facilities as the state provides for such pupils". The Defendant is offering educational provision which it considers suitable. If the Claimant's appeal succeeds and the First-tier Tribunal orders something different, there is no reason to suppose that the Defendant will not provide what the First-tier Tribunal orders. There have been difficulties in appointing an Orthodox Jewish teaching assistant, but this is a step which is (subject to any decision by the First-tier Tribunal) desirable rather than essential. Nor in our view is there any denial of the Claimant's right to practise or observe his religion without undue hardship or inconvenience (cf. R (on the application of Begum) v Headteacher and Governors of Denbigh High School [2006] UKHL 15; [2006] 2 All ER 487.) Whether school B is appropriate educational provision for the Claimant on the evidence can be looked at by the First-tier Tribunal, but the evidence does not suggest that that school will deny him the opportunity to practise or observe his religion. Indeed, they appear keen to ensure that he can and committed to the process of dialogue that may indeed be necessary in order to develop understanding of what is required.
43. As we have said, the defects in the decision itself lead us to grant permission. We might have taken a different view had we been persuaded that the Claimant would inevitably fail at the First-tier Tribunal hearing. The Defendant argued that that was indeed so: its position is that the Claimant cannot succeed. The reason advanced for that submission is that the Tribunal cannot order provision at a college, rather than in secondary education – and that what was proposed here was education that was wholly at a college and not (even partly) at a school. If that were established, the effect would be that the education proposed by the Claimant would not be secondary education and so – via the definition of "school" in section 4 - the Claimant would no longer be a "child" within the definition in section 312(5) of the 1996 Act, with the consequence that the duty to maintain a statement would not continue and the First-tier Tribunal would have no jurisdiction to order such education. If, on the other hand, it was partly at a secondary school and partly elsewhere, then section 2(2B) of the 1996 Act would mean that it was secondary education.
44. We accept that there have been references in the past suggesting that the claimant's education with Z was to be either wholly or largely at Z College. However, it appears that the Defendant thought that a solution might emerge that was capable of being implemented, and that it would be within the Defendant's powers to fund a place there – otherwise why allow the trial placement, and why should the Complex Needs Panel turn the Claimant's application down on the grounds of cost? There is no reliable evidence before us as to what is now being proposed in relation to provision by Z, but it is possible that there might be further material available by the First-tier Tribunal hearing in November, which will be looking at circumstances as they stand then, which might enable a placement with the Z institutions to be structured so as to fall within the proper scope of a statement of SEN. For the present, it is in our judgment simply not possible to say that the Claimant's appeal is bound to fail for the reason asserted by the Defendant.

Upper Tribunal Judge CMG Ockelton

Upper Tribunal Judge H Levenson

Upper Tribunal Judge CG Ward

1 October 2009