DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

The DECISION of the Upper Tribunal is to dismiss the appeal by the appellant.

The decision of the First-tier Tribunal taken on 4 February 2009 under file reference 08-02606 does not involve any error on a point of law.

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007.

REASONS FOR DECISION

Introduction

1. This case concerns the statement of special educational needs for a child whom I shall simply call E. Formally the parties are E’s mother and the local authority. However, E’s father is equally concerned with her education and so I shall refer to the parties as the parents and the local authority respectively.

2. I held an oral hearing of this appeal at Harp House on 23 December 2009. The parents were represented by Mr Friel of counsel and the local authority by Mr Hyams, also of counsel. Neither had appeared at the First-tier Tribunal below and indeed Mr Friel was instructed relatively late in the history of the case. I am indebted to both counsel their clear, well-structured and helpful submissions at the hearing, which assisted greatly in focussing the issues.

The background to the appeal to the First-tier Tribunal

3. E is a young girl who is now aged 7. According to the First-tier Tribunal’s decision – and this much is not in dispute – she “has an unusual and complex developmental profile with delayed language skills and significant social communication difficulties. She has sensory processing difficulties. She is highly self directed, is very active and is vulnerable as she lacks awareness of danger.”

4. E joined the Reception Class of a maintained mainstream primary school in the usual way and as at the date of the First-tier Tribunal’s hearing (when she was aged 6) she had remained at that school by agreement pending determination of the appeal.

5. The local authority prepared a Statement of Special Educational Needs for E under section 324 of the Education Act 1996 and in the usual format. Accordingly Part 2 set out E’s special educational needs and Part 3 the special educational provision that was required. This was followed by Part 4, dealing with placement, which stated that “E should attend an enhanced resourced provision within a mainstream school, catering for pupils with a range of learning difficulties with opportunities for ongoing assessment.” It then named a particular primary school’s (not the primary school she had been attending) “Support Base” as the relevant school.

6. The parents were unhappy with the Statement in a number of respects. In terms of the proposed placement, their main concerns were that E would have insufficient academic challenge in the Support Base and that the other children in the peer group being educated there were generally less able and less communicative than she was. They wished to have a particular independent special school for pupils with language and communication disorders as the named school for the purpose of Part 4.

The First-tier Tribunal’s decision

7. The First-tier Tribunal sat on 4 February 2009 to hear the parents’ appeal. The tribunal’s decision was to allow the appeal in part. The tribunal ordered that Parts 2 and 3 be amended in certain respects. However, on the crucial question of the appropriate named school under Part 4, the tribunal concluded that the Support Base at the maintained primary school identified by the local authority was suitable for E, and that it would be an unreasonable use of public expenditure to place her at the independent special school sought by the parents.

8. The Tribunal Judge issued a combined Decision and Statement of Reasons for its decision. The appellant applied for a review of, and permission to appeal against, the tribunal’s decision, but both matters were refused by the Tribunal Judge. I subsequently granted permission to appeal to the Upper Tribunal.

The Upper Tribunal’s jurisdiction

9. Before 3 November 2008 (‘T-Day’) appeals against decisions of what was then a Special Educational Needs Tribunal (or SENDIST) were heard by the High Court. Since the implementation of the Tribunals, Courts and Enforcement Act (TCEA) 2007, the Health, Education and Social Care (HESC) Chamber of the First-tier Tribunal has assumed the first instance functions of the SENDIST, with a right of appeal to the Administrative Appeals Chamber of the Upper Tribunal.

10. Under section 11(1) TCEA 2007, any party has “a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal other than an excluded decision”. Excluded decisions are defined by section 11(5), and include any decision by the First-tier Tribunal to review or not to review any of its earlier decisions. Thus there is no right of appeal against the present tribunal’s refusal to review its decision of 4 February 2009.

11. Furthermore, the Upper Tribunal’s jurisdiction is confined to deciding whether the decision of the First-tier Tribunal discloses any error on “any point of law”. It is therefore trite law that the Upper Tribunal can only interfere with the decision of the First-tier Tribunal if it got the law or the procedure wrong. I cannot substitute my own view of the facts for that taken by the tribunal – not least as the tribunal is an expert tribunal in this specialist field. In particular, it is axiomatic that the weight to be attached to any particular evidence “is essentially a matter for the Tribunal, unless the approach can be shown to be so illogical as to be irrational or perverse” (per Dobbs J. in W.S. (by his litigation friend Mr S) v Governors of Whitefield Schools and Centre [2008] EWHC 1196 (Admin) at paragraph 27).

12. It necessarily follows from the Upper Tribunal’s focus on the decision of the First-tier Tribunal that it is not concerned with events subsequent to that hearing. I merely note that the local authority has stated that since the tribunal hearing below the parents have not brought E to the Support Base and it is concerned that E may not be currently receiving appropriate education, the implication being that she is also not attending her original primary school. I merely express the hope that views are not so entrenched that the parents and the local authority are unable to work together in furthering E’s best interests for the future.

A preliminary point: the format of the decision of the First-tier Tribunal

13. The format of the First-tier Tribunal’s decision in this case was in the traditional SENDIST format. Thus the Decision and Statement of Reasons includes a section headed ‘Facts’ with numbered paragraphs, a section headed ‘Tribunal’s conclusions with reasons’ with lettered paragraphs, and the document was ‘topped and tailed’ with paragraphs which are neither numbered nor lettered.

14. This is clearly a tried and tested format for SENDIST decisions. However, the section headed ‘Facts’ does not simply record the facts as found by the tribunal – it also rehearses the evidence (a tendency which Stanley Burnton J observed in VK v Norfolk County Council and SENDIST [2004] EWHC 2921, [2005] ELR 342 at paragraph 60), without necessarily always making it clear whether or not that evidence was accepted.

15. There is, however, a more fundamental issue about the continued use of this traditional SENDIST format for decisions. The HESC Chamber of the First-tier Tribunal is part of the judicial system established by the 2007 Act and overseen by the Senior President of Tribunals. The Senior President has the power to make directions on ‘the making of decisions by members of the First-tier Tribunal’, without the approval of the Lord Chancellor (Tribunals, Courts and Enforcement Act 2007, section 23(6)(b)).

16. In this regard the Senior President has issued a Practice Statement on the Form of Decisions and Neutral Citation: First-tier Tribunal and Upper Tribunal on or after 3 November 2008. This expressly provides that “First-tier and Upper Tribunal decisions must be prepared for delivery, or issued as approved decisions, with paragraph numbering”. The Practice Statement refers to the need to follow international practice and to use such numbering to facilitate publication of decisions on the web. True, that latter rationale is not applicable to decisions of the HESC Chamber of the First-tier Tribunal in special educational needs cases. However, a consistent and sequential system of paragraph numbering is invaluable for the parties and also for the Upper Tribunal in helping to identify easily particular passages in tribunal decisions. Compliance with the Senior President’s Practice Statement is therefore a matter of good judicial practice.

17. The particular First-tier Tribunal in the present case is certainly not alone in issuing decisions in the traditional SENDIST format. It is a moot point whether that practice is consistent with either the letter or the spirit of the Senior President’s Practice Statement. However, that is a matter for the judiciary in the HESC Chamber in the first instance and has no direct bearing on the outcome of this appeal.

The grounds of appeal against the decision of the First-tier Tribunal

18. The written submissions made on behalf of the parents to the Upper Tribunal raised a host of disparate points. The original application for permission to appeal sought to challenge the tribunal’s findings as regards the contents of Part 2 of the Statement of Special Educational Needs, and in particular as regards the nature of E’s social communication disorder and her cognitive ability. The grounds also challenged the tribunal’s conclusions on Part 4 as regards E’s academic needs and peer group and the issue of speech and language therapy provision.

19. At that stage I deferred determining the application for permission to appeal, being concerned that the grounds were essentially an attempt to challenge the tribunal’s expert evaluation of competing evidence. I directed a further submission from the parents’ then representatives. This further submission argued that the tribunal had erred by deciding matters in the face of uncontroverted expert evidence, by relying on local authority support that was not in place at the date of the hearing and by failing to provide adequate reasons for its conclusions and decision. Permission to appeal was then granted.

20. The local authority’s written response to the appeal argued that the grounds were in essence an attempt to re-run the case before the First-tier Tribunal. The local authority also submitted that, taken as a whole, the tribunal’s reasons were adequate to explain its decision. The reply filed on behalf of the parents reiterated that the tribunal had failed to make findings as regards the need for speech and language therapy provision and had erroneously relied on provision which was not in place, and had also erred in its designation of the Support Base in Part 4. The grounds of appeal and the local authority’s response were then focussed further at the oral hearing before the Upper Tribunal by Mr Friel and Mr Hyams respectively.

21. For present purposes it is convenient to examine the grounds of appeal in three broad categories. The first relate to ‘pure’ questions of law, where the appellants’ case is that the tribunal misdirected itself in law on a material issue. The second category comprises grounds where it is asserted that the tribunal’s handling of factual issues is so flawed that it amounts to an error of law. The third category consists of challenges to the adequacy of the tribunal’s reasoning to support its conclusions.

Category 1: did the tribunal err on any pure questions of law?

22. As I understood his submissions, Mr Friel contended that there were just two grounds of appeal which fell into this category of a ‘pure’ error of law.

23. First, Mr Friel argued that the tribunal erred in law by relying on the evidence of Mrs Y, the Support Base SENCO, to conclude that there was satisfactory provision for E’s therapy within that school, and in particular by its qualification that “this is on the understanding that appropriate staffing is made available so that her speech and language/communication programme will be delivered”. This, it was said, was unwarranted speculation on the part of the tribunal and an abdication of its decision-making responsibility. Rather, the tribunal had to be satisfied that the required provision was available to be delivered in the real world. Mr Friel relied on S v City and Council of Swansea and Confrey [2000] ELR 315 and R (on the application of Alloway) v London Borough of Bromley [2008] EWHC 2449 (Admin). Mr Hyams’s response was succinct: it was the tribunal’s role to determine whether the Statement of Special Educational Needs was sufficient to meet E’s needs. If it was, then it was the local authority’s duty to arrange that provision, a duty which in the last resort could be enforced through judicial review proceedings.

24. I prefer Mr Hyams’s analysis in this respect. S v City and Council of Swansea and Confrey is certainly authority for the proposition that the tribunal must be able to satisfy itself that the school would be able to provide the special educational provision specified in the statement. I am not sure that the decision in the Bromley case adds much to this proposition. However, the Swansea case was one where there were simply no details before the tribunal of the provision that would be made available for the child at the special unit within the school. Moreover, as Stanley Burnton J observed in Lawrence v London Borough of Southwark [2005] EWHC 1210 (Admin), a tribunal in this type of case must necessarily look forward, and “the fact that the provision is specified on the basis of a promise or assurance as to the future rather than the existing fact is not, as a matter of law, something which prohibits the Tribunal from specifying that provision” (at paragraph 14). There is no suggestion that the present tribunal acted irrationally in relying on the local authority’s assurance about making additional provision, as described by the SENCO.

25. Second, Mr Friel submitted that the tribunal erred in law by confirming (in most respects) a Statement of Special Educational Needs which led to a conclusion that the Support Base was the appropriate placement, whilst making no effective provision for E’s integration (or perhaps it might be better to say reintegration) into mainstream schooling. Indeed, in the earlier written submissions, the parents’ then representative argued that the tribunal’s decision was wrong in law as regards Part 4, in that it named the Support Base rather than the primary school of which it formed part as the appropriate placement, and that any attempt to move E into a mainstream class would amount to a breach of the local authority’s duty under section 324 of the Education Act 1996. I am not sure that I understood Mr Friel to pushing the point quite that far.

26. Again, I prefer Mr Hyams’s submission on this point. The tribunal dismissed the parents’ appeal as it related to Part 4 which, as Mr Hyams noted, essentially specified a placement at a mainstream school and, insofar as the necessary provision was not broadly available, for such support to be in the specialist unit, the Support Base. This was not a case in which the tribunal was being asked to name a specialist unit within a mainstream school – the local authority had already named the mainstream school Support Base. The notion that the local authority would automatically in breach of E’s Statement of Special Educational Needs if she were moved into the mainstream part of the school for some sessions, without that Statement being amended, is unsustainable. The goal of much specialist support is precisely that of gradual reintegration into the mainstream, and special educational provision is by statutory definition “additional to… the educational provision made generally for children” of that age in mainstream schooling (section 312(4) of the Education Act 1996).

27. I therefore have no hesitation in dismissing these grounds of appeal as they related to ‘pure’ matters of law.

Category 2: did the tribunal’s handling of factual issues amount to an error of law?

Introduction

28. Both the original written submissions on behalf of the parents and Mr Friel’s arguments at the oral hearing centred on the tribunal’s handling of various factual issues. In this respect it seems to me that there is some force in Mr Hyams’s contention that the grounds were in essence an attempt to re-run the case as litigated before the First-tier Tribunal. That, of course, is not the function of an appeal to the Upper Tribunal.

29. In Yeboah v Crofton [2002] IRLR 634, Mummery LJ (at paragraph 12) set out the constraints that apply where there is an appeal on a point of law only:

“Only the employment tribunal hears all the evidence first hand. The evidence available to the Employment Appeal Tribunal and to the Court of Appeal on an appeal on a question of law is always seriously and incurably incomplete. Much as one, or sometimes both, of the parties would like it to be so, an appeal from an employment tribunal is not a re-trial of the case. The scope of the appeal is limited to consideration of questions of law, which it is claimed arise on the conduct of the proceedings and the decision of the employment tribunal. The legal points must, of course, be considered in the context of the entirety of the proceedings and the whole of the decision, but with an awareness of the limitations on the court's competence to question the evidential basis for findings of fact by the employment tribunal. It is a rare event for the appellate body to have all the documents put in evidence in the employment tribunal. No official transcript of the oral evidence exists. If an order is made for production of the chairman's notes, it is usually on a selective basis, related to the particular grounds of appeal, which should always be particularised on a perversity challenge. Most important of all, none of the witnesses give oral evidence on an appeal.”

30. Those observations are equally pertinent in the present context of a special educational needs appeal, and so “First-tier Tribunal” and “Upper Tribunal” can be properly substituted for “employment tribunal” and “Employment Appeal Tribunal” respectively in the passage just cited.

31. There is, therefore, limited scope for challenging a First-tier Tribunal’s findings of fact on appeal to the Upper Tribunal on a point of law. On the basis of the Court of Appeal’s decision in R (Iran) v Secretary of State for the Home Department [2005] EWCA Civ 982, such a challenge is sustainable in only four types of case. These are where the tribunal has (i) made perverse or irrational material findings of fact; (ii) failed to take into account and/or resolve conflicts of fact or opinion on material matters; (iii) given weight to immaterial factors; or (iv) made a mistake as to a material fact, which could be established by objective and uncontentious evidence, and which results in unfairness.

Perversity or irrationality?

32. Mr Friel did not suggest that the tribunal’s findings were perverse or irrational, and rightly so in my view, not least given the high threshold which has to be met for such a challenge. However strongly they were contested, it cannot seriously be argued that this tribunal’s findings were so “wildly wrong” as to merit being set aside, as that test was framed by Sir John Donaldson MR in the Court of Appeal’s decision in Murrell v Secretary of State for Social Services (reported as Appendix to Social Security Commissioner’s decision R(I) 3/84).

Failure to take into account and/ or resolve conflicts of fact or opinion on material matters?

33. Mr Friel’s principal challenge in this category was that the parents’ two witnesses, Mr D (an educational psychologist) and Ms W (a speech and language therapist), had both concluded that E needed what Mr Friel described as a ‘direct’ model of speech and language therapy, with a high level of permanent on-site specialist therapist input, as opposed to a ‘consultative model’, with specialist input delivered by outside specialists in periodic blocs and then delegated to Support Base staff, which Mr D and Ms W stated was insufficient to meet E’s needs. Mr Friel’s argument was that the tribunal had failed to address this issue and to resolve it one way or the other.

34. I do not accept this challenge. It is important to read the tribunal’s Decision and Statement of Reasons in the context of the case as a whole and in particular the Working Document. The tribunal made only very minor modifications to Part 3 of the Statement of Special Educational Needs. In doing so, the tribunal necessarily adopted and approved the contents of the Working Document as regards the required provision for speech and language therapy. Reading the two documents together, it is plain that the tribunal regarded the provision set out in Part 3 as sufficient and appropriate for E’s needs. As My Hyams put it, the tribunal considered the Part 3 issues and expressed itself “pithily but adequately”. I therefore reject Mr Friel’s argument that the tribunal in some way “put the cart before the horse” by jumping to Part 4 without properly determining the Part 3 issues. I return to the issue of the tribunal’s reasoning on this point further below.

Weight given to immaterial factors?

35. The only challenge on this basis related to the tribunal’s acceptance of the position as regards the provision of additional support for speech and language therapy, which has been addressed already in the context of paragraphs 23 and 24 above.

Mistake as to material fact(s), resulting in unfairness, in face of objective and unchallenged evidence

36. The original written submissions to the Upper Tribunal alleged that the tribunal had erred in law by making mistakes as to material facts which were said to be contrary to the parents’ unchallenged expert evidence. Those arguments were not rehearsed again by Mr Friel at the oral hearing, at least in quite those terms, and rightly so. This is not a case where it can be said that the tribunal made some plain error of uncontroverted fact. The tribunal had a considerable body of documentary evidence before it; it also heard oral evidence from several witnesses. All that evidence was considered in the light of the tribunal’s own expertise. It is also fundamental that the evaluation of evidence and the weight to be attached to particular items is a matter for the fact-finding first instance tribunal. For the very good reasons set out by Mummery LJ in Yeboah v Crofton, an appellate tribunal reviewing an expert tribunal for error of law should not rush in to second-guess the fact-finding body on matters which properly fall within the latter’s jurisdiction.

37. Indeed, as Baroness Hale of Richmond observed in Secretary of State for Home Department v AH (Sudan) [2007] UKHL 49; [2008] 1 AC 678 (albeit in the context of an asylum appeal):

“…This is an expert tribunal charged with administering a complex area of law in challenging circumstances. To paraphrase a view I have expressed about such expert tribunals in another context, the ordinary courts should approach appeals from them with an appropriate degree of caution; it is probable that in understanding and applying the law in their specialised field the tribunal will have got it right: see Cooke v Secretary of State for Social Security [2001] EWCA Civ 734, [2002] 3 All ER 279, para 16. They and they alone are the judges of the facts. It is not enough that their decision on those facts may seem harsh to people who have not heard and read the evidence and arguments which they have heard and read. Their decisions should be respected unless it is quite clear that they have misdirected themselves in law. Appellate courts should not rush to find such misdirections simply because they might have reached a different conclusion on the facts or expressed themselves differently” (at paragraph 30).

Category 3: were the tribunal’s reasons inadequate and so in error of law?

The pre-T-Day jurisprudence on the adequacy of SENDIST reasons

38. There is, of course, a considerable body of case law from both the High Court and the Court of Appeal on the standards of reasoning expected of SENDIST decisions before 3 November 2008, which need not be cited in detail here. Suffice it to say that the authorities were analysed in Waller LJ’s judgment in H v East Sussex County Council [2009] EWCA Civ 249, [2009] ELR 161 (at paragraphs 14-19). In terms of guiding principles, Waller LJ reaffirmed the approach taken by Ward LJ in W v Leeds City Council and SENDIST [2005] EWCA Civ 988, [2006] ELR 617 (at paragraphs 52-54), which in turn drew on Donaldson LJ’s dictum in UCATT v Brain [1981] IRLR 225, an appeal from an employment (then industrial) tribunal, that the purpose of a tribunal’s reasons “remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win”.

39. Ward LJ’s restatement in W v Leeds City Council and SENDIST of the standard of reasoning required of SENDIST decisions was itself helpfully summarised in the following terms by Mr James Goudie QC, sitting as a Deputy High Court judge in F Primary School v Mr and Mrs T and SENDIST [2006] EWHC 1250 (Admin) at paragraph 15:

“The decision of a Tribunal is not required to be an elaborate, formalistic product of refined legal draftsmanship. It must contain an outline of the story which has given rise to the complaint, a summary of the Tribunal's basic factual conclusions, and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be a sufficient account of the facts and of the reasoning to enable an appeal court to see whether any question of law arises. A Tribunal's reasons are not, however, intended to include a comprehensive and detailed analysis of the case, either in terms of fact or in law. Their purpose remains what it has always been, which is to tell the parties in broad terms why they lose or (as the case may be) win. These reasons should not be subjected to a detailed analysis. That is to misuse the purpose for which the reasons are given.”

40. That summary properly reflects the analysis of Waller LJ in H v East Sussex County Council and the spirit of UCATT v Brain. It is true, however, that in the East Sussex case Waller LJ also made particular reference to regulation 36 of the Special Educational Needs Tribunal Regulations 2001 (SI 2001/600) which required “a statement of the reasons (in summary form) for the tribunal's decision” (Waller LJ’s underlining at paragraph 19).

The post-T-Day requirements for First-tier Tribunal decisions

41. The relevant statutory requirement is now to be found in regulation 30 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules (SI 2008/2699). This requires the tribunal to provide a decision notice and “written reasons for the decision” (regulation 30(2)). The previous reference to a statement of reasons “in summary form” has not reappeared. Both counsel proceeded on the assumption that the pre-T-Day case law authorities on adequacy of reasoning in SENDIST tribunals remained valid and certainly Mr Friel did not suggest that the newly phrased statutory requirement imposed a higher standard of reasoning on tribunals than before T-Day. I also proceed on that basis, not least as the principles relied on by the Court of Appeal in W v Leeds City Council and SENDIST and also in H v East Sussex County Council draw support from authorities such as UCATT v Brain which are widely held as being of general relevance.

42. Those principles have also been applied in other tribunal jurisdictions both before and after T-Day in which there has never been any reference to statements of reasons being issued “in summary form”. Since T-Day there have been two decisions of three-judge panels of the Administrative Appeals Chamber of the Upper Tribunal which have involved challenges to the adequacy of a tribunal’s reasons in the HESC Chamber of the First-tier Tribunal.

43. The first was an appeal in a case under the Mental Health Act 1983 (BB v South London & Maudsley NHS Trust and Ministry of Justice [2009] UKUT 157 (AAC). The Upper Tribunal found that the First-tier Tribunal’s decision involved an error of law as that tribunal had not adequately explained why it preferred the reasoning of the responsible clinician to that of the independent psychiatric expert. In particular, the tribunal had not explained why it did not accept the independent expert’s reasoned opinion that the patient could be managed by way of a conditional discharge allied with close clinical supervision, rather than by continued detention.

44. The three-judge panel set out the test for adequacy of reasons in the following way:

“6. The legal test when determining the adequacy of reasons is not in doubt. It is fully discussed in the decision of the Court of Appeal in R (H) v. Mental Health Review Tribunal for North and East London Region [2001] EWCA Civ 415, [2002] QB 1. Adopting what was said in English v. Emery Reimbold & Strick Limited [2002] EWCA Civ 605, [2002] 1 WLR 2409, the essential requirement is that what the tribunal says should enable the parties and any appellate tribunal readily to analyse the reasoning that was essential to the decision. The tribunal should provide an explanation as to why it has accepted the evidence of one expert and rejected that of another. As these cases make clear, the test is the same regardless of subject matter. Accordingly if tribunals are unsure about what is required when giving reasons they may find assistance from cases outside the specific area of law that they are dealing with.”

45. Notwithstanding Mr Friel’s obvious unhappiness with some aspects of the recent tribunal reform programme, which he conceded were essentially concerns of a political (with a small “p”) rather than legal nature, it seems to me that the approach in BB v South London & Maudsley NHS Trust and Ministry of Justice is entirely consistent with the pre-T-Day SENDIST authorities discussed above.

46. The second case on the adequacy of reasons (at least in part) was Hampshire County Council v JP [2009] UKUT 239 (AAC), which concerned a tribunal’s decision on an appeal relating to a Statement of Special Educational Needs. A challenge by the local authority to the adequacy of the tribunal’s reasons was one of four grounds of appeal. As the three-judge panel explained, “where there is a crucial disagreement between experts and ‘the dispute involves something in the nature of an intellectual exchange, with reasons and analysis advanced on either side, the judge must enter into the issues canvassed before him and explain why he prefers one case over the other’ (Flannery v Halifax Estate Agencies Limited [2001] 1 WLR 377 (CA))” (at paragraph 39). In the circumstances of that case, the Upper Tribunal agreed that the tribunal had erred in law in this respect as it had simply given no reasons for preferring (in that case) the evidence of the parents’ expert witnesses to that of the local authority’s witnesses. Again, this approach is entirely consistent with that of the Court of Appeal in H v East Sussex County Council and in particular the emphasis on the central importance of telling “the parties in broad terms why they lose or, as the case may be, win”.

Submissions on the adequacy of the tribunal’s reasoning in the present case

47. In summary, Mr Friel’s submission was that the tribunal’s statement of reasons in the present case failed the test of adequacy as laid down by the Court of Appeal in H v East Sussex County Council. He argued that it was plain from a reading of the particular decision under appeal in the East Sussex case that that tribunal’s decision was of a completely different nature and quality to the present decision. The tribunal in the East Sussex case had given detailed reasons for rejecting the evidence of an expert witness which had withstood scrutiny on appeal. In the present case, so Mr Friel argued, the tribunal had not properly addressed the reports by Mr D and Ms W and so had failed to provide adequate reasons for its decision and its conclusion on the appropriate placement.

48. Mr Hyams, on the other hand, emphasised that the tribunal had to reach conclusions on the material points – it did not need to address every point that had been raised. In his submission the tribunal dealt shortly but sufficiently with the main points made by Ms W and Mr D and in relation to Part 4. Mr Hyams also stressed that the proper legal test for reasons was one of adequacy, not one of optimality or, as I had put it to counsel in argument, “were the tribunal’s reasons good enough, rather than being the best possible?”

The Upper Tribunal’s conclusions on the adequacy of reasons

Ms W’s evidence and the First-tier Tribunal’s findings and reasons

49. Ms W had produced a 23-page speech and language therapy report. This included a detailed speech and language assessment using a number of well-recognised tools. In short, she concluded that E “has a complex combination of a receptive, expressive and social communication disorders”. In particular, she found that E had a severe social communication disorder (my emphasis). Ms W then made a number of detailed recommendations on the level of specialist input that she regarded as required.

50. The tribunal conveniently set out (in a section headed ‘Preliminary Matters’) the main issues relating to Parts 2 and 3 which needed to be resolved. These included (in respect of Part 2) whether E should be regarded as having a social communication disorder (as opposed to difficulties) and, if so, whether it was properly characterised as “severe”. The main issues also included the question of whether E’s language skills should be described as merely “delayed” or rather “disordered”.

51. In the section headed ‘Facts’ the tribunal reviewed Ms W’s evidence, along with other evidence relating to E’s speech and language needs. In doing so the tribunal noted the observation made on behalf of the local authority to the effect that one of the assessment tools used by Ms W had not indicated clinical significance. The tribunal also recorded the agreement by Ms W and the local authority’s educational psychologist that E had a moderate language disorder.

52. The tribunal then set out its conclusions with reasons on this matter at paragraph B, dealing with Part 2. The tribunal stated its preference for the local authority’s formulation in the Working Document as regards E’s social communication difficulties, giving three reasons for doing so. These were that (i) it was consistent with the findings of the multi-disciplinary Social Communication team; (ii) it fitted better with an occupational therapist’s report that the tribunal had considered; and (iii) Ms W’s conclusions were “largely reliant” on the test which had not shown clinical significance. The tribunal additionally noted the agreement between the witnesses as to the existence of E’s moderate language disorder.

53. In my view the tribunal at paragraph B answered the question it had set itself in section headed ‘Preliminary Matters’. This was a classic ‘jury question’ (in this instance by an expert tribunal) involving the evaluation of evidence. It may be that another tribunal might have reached a different conclusion, but that is not the question. The question is whether the tribunal’s findings involve an error of law in this respect. I conclude that they did not – the tribunal reached a decision it was entitled to do on the evidence before it and gave sufficient, if not extensive, reasons for doing so. In doing so, the tribunal necessarily approved the contents of Part 2 of the Working Document, as amended, with the consequential implications for the contents of Part 3.

Mr D’s evidence and the First-tier Tribunal’s findings and reasons

54. Mr D, the educational psychologist instructed by the parents, had produced at least two reports. One was an extremely detailed 22-page document. The other was a shorter 3-page supplementary report. I indicated at the oral hearing that my preliminary view was that the appellants’ strongest grounds of appeal might relate to the tribunal’s treatment of Mr D’s reports. However, I must also observe that it would be simply unrealistic to expect the tribunal to deal with every single aspect of these reports. Rather, the tribunal’s responsibility was to deal with the key issues raised by those reports in the light of the central questions which it had to determine.

55. So how did the tribunal proceed to deal with Mr D’s evidence? In its list of ‘Preliminary Matters’ it identified one of the main issues to be decided as whether E should be described as having “low” or “broadly average” cognitive ability. That was a matter clearly within Mr D’s area of expertise and also an issue which impinged on Part 2 (and consequentially Parts 3 and 4) of the Working Document.

56. In the section on ‘Facts’ the tribunal noted Mr D’s conclusion that E had “broadly average” cognitive ability, but also the critique by the local authority’s educational psychologist of Mr D’s report, suggesting that “broadly average” was a misleading assessment in the light of E’s significantly lower performance IQ as against verbal IQ. Later in the same section the tribunal summarised Mr D’s conclusions to the effect that the proposed provision at the Support Base was unsuitable owing to E’s higher level of ability and social skills and (as he saw it) the inadequacy of the speech and language therapy provision there.

57. The tribunal then concluded that the weight of the evidence suggested that “broadly average” was an inaccurate description of E’s cognitive skills, given the weight of the evidence, but it amended the local authority’s wording in Part 2 so as to read that “previous assessments have indicated that E is of low cognitive ability but the results are to be interpreted with caution” (tribunal’s amendment underlined). Again, this was a classic question concerning the evaluation and weighting of evidence which was for the tribunal to determine. It reached a decision it was entitled to on the evidence before it. It is true that the underlined passage is as much a comment on the evidence before the tribunal as the making of a factual finding. However, it must be borne in mind as regards Part 2 that there must be “some flexibility and sensible interpretation of a document with ongoing significance in the child's life” (W v Leeds City Council and SENDIST per Judge LJ at paragraph 35). The nuance added by the tribunal helps to inform the overall picture of E, her condition and her problems, and help to put her educational needs into context.

The First-tier Tribunal’s findings and reasons on Part 4

58. In its ‘Conclusions with reasons’ the tribunal correctly identified the fundamental issues to be resolved as regards Part 4 at paragraph J, namely whether the Support Base was an appropriate placement in terms of E’s abilities, the suitability of the peer group and the adequacy of the therapy provision.

59. Mr Friel sought to persuade me that the tribunal’s conclusions with reasons at paragraphs K-M in particular failed what might be called the East Sussex test. After considerable reflection, I am not satisfied that this submission is well-founded. The tribunal’s decision has to be read as a whole, and paragraph K to some extent flowed logically from the tribunal’s assessment of E’s cognitive abilities. The tribunal’s conclusion in paragraph K that E’s attainments “are within the range of attainments of the other children” was plainly one that was open to it. There were definitely several children, and almost certainly a majority of children, in the small number in the Support Base whose attainments were lower – but there were at least two whose attainments were more akin to those of E, and so the “within the range” assessment was one the tribunal could make. The tribunal also dealt with the potential for mainstreaming in paragraph K, a point which has been dealt with above.

60. Furthermore, the tribunal’s assertion in paragraph L that it “had not heard convincing evidence” as to why the peer group, specifically in the Support Base and more generally in the host primary school, was unsuitable followed on from its previous conclusions, e.g. as regards her cognitive abilities, notwithstanding the uncertainties involved. I note in particular that Mr D’s main report was written at a time when an earlier draft of the Statement referred to E’s “broadly average” cognitive ability, an assessment with which he had concurred, although the Working Document before the tribunal adopted a different interpretation, an approach that the tribunal evidently considered was on balance justified on the evidence before it.

61. Finally, the tribunal’s conclusion with regard to the future of speech and language therapy provision in paragraph M was one that was open to it for the reasons identified at paragraphs 23 and 24 above.

62. The answer, therefore, to the question “does this decision tell the parties in broad terms why they lose or, as the case may be, win” is accordingly answered in the affirmative. I entirely accept Mr Friel’s point that this particular tribunal does not attain the level of detail of analysis of the decision which passed muster before both the High Court and the Court of Appeal in the East Sussex case. With respect, however, that is not the test. Tribunal decisions are not to be graded in the way that an undergraduate essay might be. Rather, in terms of the adequacy of their reasons, there is a simple ‘pass/fail’ binary choice. This tribunal’s decision might have been more fully expressed. But I accept Mr Hyams’s core submission that the reasons given were adequate, even if they might not have been the best that could have been provided.

Conclusion

63. For the reasons explained above, the decision of the tribunal does not involve any error of law. I must therefore dismiss the appeal.

Signed on the original Nicholas Wikeley

on 11 January 2010 Judge of the Upper Tribunal