Upper Tribunal (Administrative Appeals Chamber)

 

DECISION OF THE UPPER TRIBUNAL

ADMINISTRATIVE APPEALS CHAMBER

 

I give the parent permission to appeal against the decision of the First-tier Tribunal sitting in London on 8 July 2009. Consent having been given on behalf of both parties under rule 22(3) of the Tribunal Procedure (Upper Tribunal) Rules 2008 for then proceeding to determine the appeal without the opportunity for further responses, the appeal is allowed. The tribunal's decision involved an error on a point of law, for the reasons given below, and is set aside. The case is remitted to a differently constituted tribunal within the Health, Education and Social Care Chamber of the First-tier Tribunal for reconsideration in accordance with the directions given in paragraphs 55 to 57 below and further procedural directions to be given by a First-tier Tribunal judge (Tribunals, Courts and Enforcement Act 2007, section 12(2)(b)(i)). This decision is written in a way that should avoid any identification of the child concerned, but for the avoidance of doubt I direct there is to be no publication of any matter likely to lead members of the public directly or indirectly to identify the child the subject of the appeal (Upper Tribunal Rules, rule 14).

 

 

REASONS FOR DECISION

 

A. The background

1. The tribunal was concerned with the appeal against the contents of the statement of special educational needs issued in respect of D on 9 March 2009. At that date D was in his last year at a Junior School and was due to transfer to secondary school in September 2009. A draft statement had been issued on 19 January 2009 following a first statutory assessment, and a final statement was issued on 30 January 2009, which included a requirement for individual support from a learning support assistant for 34.07 hours per week. However, that statement only named in Part 4 the Junior School D was currently attending. The person taking care of D (who from now on I shall call "the parent", although she is not D's mother) had as part of the ordinary secondary school allocation process made her first choice M School and made representations to that effect after the issue of the draft statement. I think that her second choice was S School. Both are local authority maintained schools and are not special schools.

 

2. On 6 February 2009 the special educational needs co-ordinator (SENCO) of M School wrote a letter co-signed by the head teacher to the relevant officer the local authority, the London Borough of Barnet. It is worthwhile setting out that letter more or less in full:

 

"Thank you for the information you sent to us regarding [D] and his transfer request to [M] School. I regret to inform you that the governors are not able to offer [D] a place at [M] School for September 2009.

 

[M] School has already confirmed acceptance of 11 students with Statements of Special Educational Needs for September 2009. I note with concern that [D's] proposed statement is a recent decision made by Barnet SEN Panel and no Annual Review Report yet exists to suggest if [D] has made progress.

 

After meeting with [D] and as a result of reading his statement of Special Educational Needs I am concerned that the education of [D] at this school would be incompatible with the efficient education of other children.

 

[M] School is an extremely large school, both in number of pupils and site, which is spread out over five different levels. The school has 1700 pupils and is the largest school in the London Borough of Barnet. [D] would have up to twelve Subject Tutors and his timetable would be different from week 1 to week 2. Additionally there are six different combinations of groups of students, which [D] would be in contact with during the course of the school day. [D's] Statement states that social skills and behaviour `is an area of some concern ... He would seem to be potentially quite vulnerable and on one occasion manipulated a situation such that he wandered off after school and took a train regardless of destination. The school is thereby concerned as to his vulnerability'. I am concerned that the school environment is not suitable for [D] and would be detrimental to him.

 

At [M] School students are placed in ability sets and [D's] attainment levels would mean that he would find himself in a lower ability group with several other statemented students, usually at least six pupils fall into this category. [D's] Statement states `[D] has significantly delayed language skills and limited social interaction skills'. [D's] Statement also states `[D] is reported as having literacy and numeracy skills at a level well below that expected of his age and to be functioning at a Key Stage 1 level'. I believe that [D] would benefit from a smaller and more supported environment which could ensure appropriate access to the curriculum. This would require more 1:1 and small group teaching which [M] School would struggle to provide without taking time and resources away from other Statemented pupils. [D] requires speech and language therapy input at a level that the school would not be able to accommodate given our commitments to the pupils that have already been accepted into that year group.

 

In view of such a requirement [D's] placement at [M] School would be incompatible with the efficient education of other students and the provision on his statement would be compromised. I believe [D] would benefit from an intensive programme of speech and language therapy and the Local Education Authority may need to consider a school where there is a resource base for students with significant speech and language needs.

 

We feel that [D] will become overwhelmed and emotionally vulnerable in a school that has high academic expectations and pressures.

 

The Governors of [M] School feel that this placement is not appropriate; we feel strongly that our resources to provide for students in this year group with Statements of Special Educational Needs are at their limit we believe [D] would benefit from being placed in a smaller more supportive environment. We therefore refuse a placement for [D] at [M] School."

 

3. A complex needs panel of the local authority met on 27 February 2009 to consider, in the light of the responses from both schools and the parent's comments, which school should be offered for secondary transfer. On 9 March 2009 a final amended statement of special educational needs was issued naming [S] School in Part 4 from September 2009. That was the focus of the parent's appeal. She raised a number of points about the rest of the statement that I do not need to go into because they were resolved either by agreement at the tribunal hearing or were dealt with by the tribunal in a way that cannot be impugned for error of law. The same goes for many of the arguments raised by the parent about why she considered [M] School more suitable for D than [S] School. For the purposes of the case before me I can concentrate on the evidence and submissions about whether D's attendance at [M] School was incompatible with the provision of efficient education for the children with whom he would be educated.

 

4. That focus stems from the terms of the duty, long established as operating on appeal as well as for local authorities, in paragraph 3(3) of Schedule 27 to the Education Act 1996 ("paragraph 3(3)"):

 

"(3) Where a local education authority make a statement in a case where the parent of the child concerned has expressed a preference in pursuance of such arrangements [after issue of a proposed statement] as to the school at which he wishes education to be provided for the child, they shall specify the name of that school in the statement unless--

(a) the school is unsuitable to the child's age, ability or aptitude or to his special educational needs; or

(b) the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources."

 

5. The local authority's written response to the appeal, following a case management hearing on 9 June 2009, seems to have been produced on 26 June 2009. It is on pages 74 to 85 of the second bundle of documents before the First-tier Tribunal, with further written evidence in preceding pages. I suspect that the response was drafted by Mr McKendrick of counsel, who represented the local authority at both the First-tier Tribunal hearing and that before the Upper Tribunal. The response did not argue that [M] School was unsuitable for D under paragraph 3(3)(a), but that both parts of paragraph 3(3)(b) were satisfied, so that the parent was not entitled to require the tribunal to name that school. It appears that by the time of the hearing on 8 July 2009 Mr McKendrick had decided not to rely on the second part of paragraph 3(3)(b), so that I shall not set out what was said about that.

 

6. The response contained the following:

 

"30. [M School] is of the view that it is simply not possible to introduce another pupil with complex needs into year 7. The school is of the view that having 12 statemented pupils in this year group is the maximum that it can efficiently and properly manage without detriment being caused to other pupils both with statements and without. The `tipping point' has been reached and further students with statements cannot properly be admitted.

 

32. Furthermore in the specific case of [M School] having 12 pupils in one year is considered to be incompatible with the efficient education of the other statemented pupils. One SENCO simply cannot cope with such demands and the school does not have sufficient facilities for the additional staff (particularly the significantly increased number of TAs) that are required.

 

33. Furthermore there is simply not enough space in the SEN department to deal with an increased work load. There is not room for more staff and there is barely room to provide the individual and small group provision that is required. The more statemented pupils there are the greater the difficulties and the more the pressure on spaces and resources in relation to delivering statemented support.

 

34. Furthermore the staff are under incredible pressure in relation to annual review meetings. Each annual review amounts to around 15 hours teacher time and 6 hours administration time. Annual reviews of statements in school amounts to the equivalent of a full time teacher."

 

7. The response was plainly based to a large extent on a statement dated 25 June 2009 from the head teacher of [M] School. According to the email to the First-tier Tribunal from the local authority it was included as one of the many attachments sent at the same time as the response, but it does not appear to have been part of the second bundle of documents prepared for the hearing on 9 July 2009 and presumably copied to the parent. However, she has acknowledged that she did receive a copy before the hearing. I do not know how far in advance.

 

8. The head teacher's statement contained the following:

 

"There were 32 students with Statements when I arrived at [M School in 2004] and we are expecting to have 72 in September 2009, a 125% increase, representing 6% of our roll, compared to the Barnet and national average of 2.1%. The corresponding number of hours of support will go from 563 to 1,790, a 218% increase, reflecting the ever increasing complexity of need. If 4 pending appeals are successful we would have 76 students with Statements and the number of hours of support would increase by a further 125 hours to a total of 1915. ...

 

Even if the number of students with Statements entering Year 7 remains steady, there will be a further increase in the overall number in September 2010, when the 2004 Year 7, with its increased number of students with Statements, reaches Year 13.

 

The school and the LA are agreed that the number of students with Statements at [M School] cannot continue to rise without prejudicing the education of our existing students, both with Statements and without. The limit of 12 per year is already too high to avoid prejudicing the education of others. Having said that, we are already likely to have 14 students with Statements in next year's Year 7, because two students admitted as siblings are currently undergoing statutory assessment."

 

9. The statement went on to ascribe the prejudicial effects to the school being dramatically oversubscribed and exceptionally short of accommodation. Information was given about overcrowding and some rooms being under-sized, with the result that no new course could be introduced unless it replaced an existing course. It was also said that for the same reason Key Stage 3 had to be arranged into nine teaching sets with an average of 27 students in each (30 in higher ability bands down to 20 in the lowest), without the space (although the teachers could be afforded) to re-arrange the 240 students into 10 sets, allowing smaller groups into which the statemented students with learning difficulties could fit. The head teacher's statement concluded, before going on to deal with some specific points raised by the parent:

 

"The school cannot prove that the addition of one more student would cause it to fail. However, that would apply equally to the next case and the next case and so on. If we and the LA did nothing to try and limit the numbers of children with Statements on our roll, their number could easily double or more than double and that would require the complete rebuilding of the school."

 

10. There were also some rather confusing figures about the numbers of pupils with statements expected in Year 7 in September 2009 and in M School as a whole. The parent had obtained information from the local authority in April 2009 about the numbers in each year group and the numbers with statements in January 2009 (page 73 of the first First-tier Tribunal bundle). Those were Year 7: 247 (17); Year 8: 240 (14); Year 9: 243 (18); Year 10: 248 (18); and Year 11: 245 (20). However, the chart in the local authority reply at page 82 of the second First-tier Tribunal bundle gave these figures for pupils with statements as at 30 April 2009: Year 7: 12/13; Year 8: 12; Year 9: 14; Year 10: 9; Year 11: 11; and Year 12: 3. An undated chart (page 8 of the second bundle) gave the percentage of pupils with statements at M School as 5% for the four years 2006 - 2009. The S School percentage was 3%, but with noticeably higher percentages receiving School Action or School Action Plus support. Finally, Appendix B to the local authority's reply (pages 16 and 17 of the second bundle) was a detailed breakdown of pupils with statements expected to be in set 7.05 in September 2009. There were 11 with statements and two described as undergoing statutory assessment. Then the details of the three other children going to appeal as well as D were given.

 

11. The directions given on 9 June 2009 had directed the local authority to provide a prospectus and OFSTED report for both schools and information on the levels of staffing and additional provision available at both schools. The prospectuses and OFSTED reports were provided, but the other information, as summarised above, only about M School.

 

B. The First-tier Tribunal's decision

12. The parent attended the hearing on 9 July 2009, with the support (not formal representation) of a barrister not experienced in the field of education. The local authority was represented by Mr McKendrick and called evidence from the head teacher of M School and Ms B, an assistant head teacher.

 

13. When Ms B was giving evidence it became clear that she and Mr McKendrick were referring to a document. As the tribunal judge put it in paragraph 11 of its decision:

 

"[Ms B] told the tribunal and submitted written evidence that she had conducted a thorough review of the teacher time spent on pupils with statements which demonstrated that the time spent on pupils with statements had been to the detriment of pupils with special educational needs on school action and school action plus."

 

However, when refusing permission to appeal to the Upper Tribunal, the tribunal judge wrote:

 

"The evidence in this document was given orally by its maker, [Ms B]. The document was not formally admitted. It was given to the panel and [the parent] to assist in their understanding of [Ms B's] oral evidence, which was detailed. The decision acknowledges that it is very hard for a parent to counter information about the internal workings of a school. The panel subjected the witnesses to close questioning on the issue. The school had submitted detailed written evidence which was available to [the parent] in advance of the hearing."

 

14. The parent has acknowledged that after the tribunal raised the issue of the documents and copies were given to the members and to her, the tribunal asked her if she wanted an adjournment to consider it. She has said that she knew that the local authority witnesses would not be available after the end of the school term on 17 July 2009 and that any new hearing could not be until September, after the start of the new term, when even if she won there would be disruption to D's education. She therefore felt in an impossible situation and had to carry on without feeling able to put any meaningful questions to Ms B, especially having to save them up to the end of her evidence.

 

15. The tribunal agreed some amendments to part 3 of the statement of special educational needs, but decided to maintain the naming of [S School] in part 4. In the section of the decision under the heading "Facts" the tribunal summarised the parent's contentions, referred to Ms B's evidence in its paragraph 11 and set out the head teacher's evidence very much along the lines in paragraphs 8 and 9 above. He had acknowledged that it was the school that had imposed the limit of 12 statemented pupils a year and said that it had already admitted 12, which figure was likely to increase to 14 by virtue of the two pupils undergoing statutory assessment. In the section headed "Tribunal's conclusions with reasons" it said that it had carefully considered the relevant law applicable to parental preference for a mainstream school, ie "Sch 27(3) Education Act 1996” (repeating the same typo as in the local authority's reply) and took into account the recent decision in Hampshire County Council v R and SENDIST [2009] EWHC 626 (Admin), [2009] ELR 371.

 

16. The crucial paragraph was then E:

 

"The tribunal concluded that to place [D] at [M School] would have an impact on the efficiency of the education of the other children and that impact is such as to make his attendance there incompatible with the provision of efficient education. The tribunal accepted the detailed written and oral evidence provided by the school that it has already accepted applications up to and over its admissions number for year 7, that the number of statemented pupils had placed a strain on the staff and prevented them from fully meeting the needs of pupils with and without statements. The school's overcrowded facilities militated against the school being able to take steps to mitigate that incompatibility. It could not create smaller class sizes because there was no classrooms to accommodate additional classes and there was not sufficient space within existing classrooms to accommodate an additional adult."

 

17. The tribunal stated that it had also taken into account its "wider discretion under s 9", but concluded in paragraphs F, G and H of the statement that S School was a suitable placement for D.

 

C. The application to the Upper Tribunal

18. The parent having been refused permission to appeal by the tribunal judge, she applied to the Administrative Appeals Chamber of the Upper Tribunal for permission and asked for an oral hearing. I granted the request for an oral hearing on 30 November 2009 in advance of obtaining all the documents that were before the First-tier Tribunal and any submission from the local authority. That was in the hope that the hearing would be fixed for the earliest practicable date and that those other things would be in place by the date of the hearing. Unfortunately the practical arrangements were not made by the Upper Tribunal office as I had intended and, in the light also of the parent's availability, the hearing did not take place until 31 March 2010.

 

19. The parent attended the hearing with D. She was represented by Mr David Lawson of counsel, instructed by Levenes. The local authority was represented by Mr McKendrick. I am grateful to both representatives for thorough and well-focused submissions, as well as to the parent and D for their patience through what turned out to be a long morning. I apologise for the fact that this decision will be issued after the outer estimate given at the hearing.

 

20. I shall not set out all the competing submissions, but mention them as necessary in dealing with the issues below, which I do in the order that I find most helpful in reaching a conclusion in the case.

 

(a) The relevance of statutory guidance on Inclusive Schooling

21. Mr Lawson made this interesting submission of law in relation to the proper interpretation of paragraph 3(3)(b) and, in particular, the phrase "the children with whom he would be educated". I have expanded the statutory references.

 

22. Under section 313(2), (3) and (5) of the Education Act 1996 local education authorities and tribunals are required to "have regard" to the code of practice issued and revised by the Secretary of State giving "practical guidance in respect of the discharge" of functions under Part IV of the Act. Section 316A(8) requires a local education authority to have regard to guidance about sections 316 (child with special educational needs must be educated in a mainstream school unless that is incompatible with the wishes of his parent or "the provision of efficient education for other children") and 316A.

 

23. The Special Educational Needs Code of Practice issued in November 2001 (DfES 581/2001) mentions the guidance given under section 316A in the September 2001 document, Inclusive Schooling - Children with Special Educational Needs (DfES/0774/2001), in particular as giving examples of the reasonable steps that could be considered to ensure that inclusion of a child with a statement of special educational needs in a mainstream school is not incompatible with the efficient education of other children (see paragraph 12 of the Foreword). There is a specific reference in paragraph 8.59 in the section on naming a school in the statement:

 

"8.59 If an LEA decides that a particular maintained school might be able to make the special educational provision specified in the statement the governing body of that school can only argue against a place on the grounds that the child's education there would be incompatible with the efficient education of others. They must also consider whether there are any reasonable steps that they (or the LEA) could take to prevent inclusion from having that effect. Additional practical guidance on the sorts of steps LEAs and maintained schools need to consider taking is provided in a separate circular on the statutory framework for inclusion."

 

24. Then paragraph 42 of the Inclusive Schooling guidance is as follows:

 

"When considering individual schools `other children' is intended to mean the children with whom the child who has a statement will directly come into contact with on a regular day-to-day basis. For example in a primary school it would often be the child's class or literacy/numeracy group. It would not necessarily mean children in other classes or year groups. In a secondary school it may include the pupil's form or tutor group, pupils in the pupil's subject group or exceptionally even the entire year group. `Other children' does not mean children in other schools or pupils who will only occasionally come into contact with the child." (bold text and typo in the original)

 

25. Mr Lawson's submission was that if that restricted meaning for "other children" was prima facie to be adopted in relation to section 316, where the statutory words did not have any qualification, then paragraph 3(3), in a Schedule operating under section 324(7) in the same Part of the Act, could not possibly have a wider meaning when referring to "the children with whom he would be educated". The outer limit suggested was of an entire year group. Therefore, he submitted, in the present case the tribunal failed to ask itself who were the other children with whom D would have been educated if admitted to M School and in relation to whom the test of incompatibility with efficient education was to be applied. Instead, it apparently considered the education of all other pupils in the school, or all other pupils with special educational needs whether statemented or not, which was too wide a category. That, he said, undermined the tribunal's conclusion in paragraph E.

 

26. In reply, Mr McKendrick counselled caution in applying guidance given in relation to the particular duties in one provision to the interpretation of a different duty under a different provision. He pointed to the difficulties of identifying the right group, or range of groups, that could reasonably be used under Mr Lawson's approach (eg was it the other pupils who were predicted to be in class 705, other pupils with statements or with special educational needs predicted to be in Year 7 as a whole, the whole of Year 7 etc?) and noted that Mr Lawson had not submitted what the answer should be.

 

27. I do not accept Mr Lawson's submission that regard must be had to the particular terms of paragraph 42 of the Inclusive Schooling guidance when applying paragraph 3(3) or that those terms colour the interpretation to be given to the words of paragraph 3(3). I find the overall approach of the Inclusive Schooling document rather impressionistic and not directed to small-scale issues of statutory interpretation, but I do not need to go into a wide-ranging analysis of it. That is because I find several other parts of Chapter 8 of the Code of Practice, beyond paragraph 8.59, inconsistent, indeed incompatible, with such a narrow meaning. For instance, in paragraph 8.62 and 8.82, there are references to the test of incompatibility with the efficient education of "other children in the school". In paragraph 8.81 there is a reference to concerns of a governing body about "impact on the education of other children at the school". Paragraph 8.85 is particularly significant, as it seeks to address the particular problem arising in the present case:

 

"8.85 The LEA should also consider carefully whether the admission of the child to a maintained mainstream school would take the school over the number fixed as the number of intended admissions for the year, which must not be less than the `standard number' or `approved admissions number', in other words, whether the school is already nominally full. Admitting children over this number might be incompatible with the provision of efficient education or the efficient use of resources. In some schools as additional child in a class would be incompatible with the efficient education of others as there might not be enough physical space, especially if all the children require particular aids that take up a lot of space. ..."

 

In the face of those indications, in a document to which regard must be given directly when applying paragraph 3(3), the particular terms of paragraph 42 of the Inclusive Schooling document cannot be imported.

 

28. In addition, I find it surprising, if Mr Lawson were right as a matter of law, that there has been no mention of what he advocates in any of the decided cases. Too much weight must not be put on that, because a lot depends on the particular circumstances of cases and the arguments that were put to the court. New points do come to light in legislation that has been pored over for years.

 

29. To take the Hampshire case, relied on by the tribunal and constituting a very recent survey of the area, the guidance given by Stadlen J to the new tribunal that was to rehear the case about paragraph 3(3) points against Mr Lawson being right:

 

"[57] It is possible to see that on the basis of the evidence to which [the previous tribunal] refer in the judgment and the findings they have made, that this is an area that may involve some judgment and some question of degree. Thus, we are told that the school roll is 149, whereas it should be 150, so that there is nominally one spare place under the 150 target. We are told that there are three classes of 11 children [in the year in question] and that there must come a point, as the tribunal have found, where the numbers in a classroom reach such a level that they must impact on the ability of staff to provide the same level of education to all the children. The question is whether having one of those three classes with 12 children reaches that level, and, if it does reach that level, whether that impact is so great as to be incompatible with the efficient education of those children.

 

[58] There is also evidence that there will be a significant increase in the overall number of children in the school in September 2009, and that, no doubt, will be one of the questions to be take into account as to whether steps can be taken so as to mitigate that; whether the effect of that is, or is not, going to be such, taken together with other matters, as to be incompatible with the efficient education of the other children, rather than merely having an impact or even an adverse impact on it."

 

30. The focus there was understandably on the education of children in a class whose numbers increased from 11 to 12. Paragraph 58 could be read as indicating merely that the overall school numbers were relevant to whether what might have appeared to be an incompatibility with the efficient education of those children could be avoided by making adjustments elsewhere. Plainly it makes sense to look first at children who would be in the same class or otherwise would in regular contact with the child in question. If there is an incompatibility with the education of some of those children, that could not be avoided by reasonable adjustments elsewhere, there would be no need to look at any wider category of children. However, if the judge, with the benefit of submissions from counsel, had considered that the new tribunal was restricted as a matter of law to considering possible incompatibility with the provision of efficient education only for the children with whom the statemented child would come into contact on a regular day-to-day basis or something similar, one would have expected him to say so.

 

31. What I take from the above discussion is first that the words "the other children with whom the child would be educated" do not have any artificially restricted meaning, but must be interpreted as ordinary English words as appropriate in the circumstances of particular cases. But inherent in that is that the words must be intended as words of limitation and do not simply allow a consideration of the impact on any children who could be said to be affected by the admission of the child in question. What I take secondly is that consequently the necessary process of interpretation and application to particular circumstances is quite a sophisticated one, which will often require some express consideration in a tribunal's statement of reasons. Depending on the circumstances, it may require an identification in a tribunal's statement of reasons of what other children it considers fall into the category. I return to this in the context of the tribunal's reasons in the present case in paragraph 39 below.

 

(b) Incompatibility with the provision of efficient education

32. Mr Lawson for the parent relied on the statement of Gibbs J in Essex County Council v SENDIST and S [2006] ELR 452 at paragraph [29] that the word `incompatible' is a strong term, with a suggestion that it has a stronger meaning than "prejudicial to". Essentially the same point was picked up in the Hampshire case in paragraph [57], set out in paragraph 29 above, and paragraph [56]:

 

"In considering ... whether J's attendance at Dove House School would be incompatible with the provision of efficient education for the children with whom he would be educated, [the new tribunal] should consider not just the question which they appear to have considered, whether it would have an impact on the efficiency of the education of those children, but whether that impact is so great that his attendance would be incompatible with the efficiency of their education."

 

33. Mr McKendrick for the local authority did not dissent from those propositions of law. However, he submitted, picking up on a point raised during the hearing on 31 March 2010, that the central issue was the efficiency of education. He accepted that it was not enough for the purposes of paragraph 3(3)(b) that the quality of education provided for other children would be reduced from the very highest standard to something a little lower. But, on the other hand, he submitted, it did not have to be shown that no meaningful education at all would be provided for some other child or, as the head teacher had put it in his statement, the admission of the child in question would tip the school into failure.

 

34. I agree with Mr McKendrick in that respect, which is not in any way inconsistent with the propositions in paragraph 32 above. "Efficient education" indicates a standard, not the very highest desirable standard or the very basic minimum, but something in between that I suggest that the members of the First-tier Tribunal are uniquely qualified by their expertise and experience to recognise in particular cases. Although "incompatible" is indeed a very strong word, indicating that there is no way of avoiding the admission of the single child involved reducing the quality of education provided to some other children with whom he would be educated below that standard, its force must be applied in the context of that standard.

 

35. I do not think that the Upper Tribunal should go any further in attempting to define the standards embodied in "efficient education". I merely draw attention to the guidance in paragraph 40 of the Inclusive Schooling document that it means:

 

"providing for each child a suitable and appropriate education in terms of a child's age, ability, aptitude and any special educational needs he/she may have."

 

36. What I take in particular from this section of discussion is that the test of incompatibility with the efficient education of other children under paragraph 3(3) is also quite a sophisticated one. It must in my judgment be applied by reference to the circumstances only of the child in question and other children who are already known or predicted to be in the category of those who would be educated with the child. Although the overall context of the school will be relevant, especially in relation to whether adjustments can be made elsewhere to avoid an incompatibility that would other otherwise arise, the circumstances of other children who might possibly be admitted, particularly as the result of other outstanding appeals, cannot be taken into account. Depending on the circumstances of particular cases, it will often be necessary for a tribunal to identify just what difference it finds that the admission of the single child would make before it can go on to make the judgment about whether the degree of impact

 

(c) Conclusion on paragraph E of the tribunal's statement of reasons

37. Mr Lawson submitted that much of the evidence relied on and accepted by the tribunal in the present case, in particular the evidence of the head teacher and Ms B, referred to strains on staff, the general difficulties imposed by the rules and requirements surrounding statements of special educational needs and the effects on the school in general or within the local authority. Therefore, he said, to that extent the evidence was not was not relevant to the statutory question before the tribunal. That is true in a sense, but I do not think that the head teacher and Ms B are to be criticised for giving their views in that wider context, which obviously reflected their responsibilities and concerns. It was the tribunal's job to focus on the elements of the evidence that it considered were relevant to the statutory test. In general it did so, as is shown by some of the questions from the tribunal recorded in the judge's notes and in the terms of paragraph E of the statement of reasons itself. That did not simply accept the evidence provided by M School in its entirety, but only in so far as it showed that the school had already accepted applications over its admissions number for Year 7, that the number of statemented pupils had placed a strain on the staff and prevented them from fully meeting the needs of pupils with and without statements. It then went on to accept that those effects could not be mitigated by the creation of smaller class sizes in the absence of space and that there was not room in the existing classrooms to accommodate an additional adult (ie the learning support assistant required by D's statement).

 

38. I do not doubt that the conclusion that D's admission to M School was incompatible with the provision of efficient education for the children with whom he would be educated was within the area of reasonable judgment allowed to the tribunal on the evidence before it. However, did the tribunal explain its reasons sufficiently for it to be seen that it had applied the right test in law and had not taken into account any legally irrelevant factors and for the parent to understand why the tribunal's judgment had gone against her? After close consideration I have concluded that it did not, despite Mr McKendrick's submission that in the context of the tribunal's reference to the Hampshire case the right test had been applied and none of the parties who had read all the papers and sat through the hearing could be in any substantial doubt about why the tribunal had decided the way it did.

 

39. That conclusion stems essentially from the sophistication of the issues mentioned in paragraphs 31 and 36 above. In my judgment this was a case, particularly because of the wide-ranging concerns expressed in the evidence, in which the tribunal needed to identify the children that it considered fell into the category of those with whom D would be educated if admitted to M School. The reference to pupils with and without statements left matters more or less completely open. If the intention in the final sentence of paragraph E was to focus on the class to which D would have to be allocated, through the finding that there would not be room for D's learning support assistant, that was not in my view made clear enough.

 

40. There was in addition not an adequate examination in paragraph E of the difference that the admission of D would make (although the judge's notes suggest that some pointed questions on the issue were put in the hearing). There was a distinct danger from the local authority's point of view of the head teacher's and Ms B's evidence proving too much. The tribunal accepted that the school had already been prevented from fully meeting the needs of pupils, according to the evidence as a result of the number of pupils with statements already in the school in combination with other factors. That came most definitely from the evidence of Ms B, who in her document referred to the investigations she had carried out bringing it home to her "how much the efficiency/effectiveness of the provision for our [School Action and School Action Plus] students is being prejudiced". The head teacher also referred to the existing self-imposed limit of 12 statemented pupils per year having prejudiced the education of others. Nonetheless, the school had all those existing pupils within its care and being a good school with good and committed staff and strong leadership no doubt did its best to ensure that individual pupils did not lose out. If adjustments were made to that end, would they not also have been made if D had actually been admitted?

 

41. I cannot of course endorse an argument simply in the terms that if efficient education was not already being provided to all pupils the addition of one extra pupil could not make any significant difference, or a similar argument that in a school of 1,700 pupils one extra could not make any significant difference. For one thing, that could not stand with the necessary focus under paragraph 3(3) on the children with whom the child in question would be educated. And there must be room for a conclusion that at some point impact or prejudice tips over into incompatibility with the provision of efficient education. But that is far from a simple or straightforward matter. In the circumstances of the present case and in the light of the nature of the evidence from the head teacher of M School and Ms B, there was not an adequate explanation of the tribunal's reasoning in paragraph E. To say that the impact of D's admission on the efficiency of the education of the other children (unidentified) was such as to be incompatible with the provision of efficient education was really to do no more than restate the tribunal's conclusion on paragraph 3(3). There needed in the circumstances to be some clear identification of just what difference it was found that D's admission (not the admission of all four children with appeals pending) would have and to the efficient education of which children. That would need to have been followed, given the way that the school was already in practice living with what it considered an unsatisfactory situation, by some evaluation of whether that impact was enough to take the standard of education provided to those children below the level of efficiency (see paragraphs 33 to 36 above) and whether there was no way of avoiding that degree of impact so as to meet the strong test of incompatibility. Although in the end there will always be an issue of judgment about incompatibility that a tribunal probably cannot unpack very far, the basis for the exercise of that judgment must be properly established and explained to the parties (especially the losing party) in the statement of reasons. In the present case that was not done.

 

42. The tribunal failed to give adequate reasons in those respects, which is a material error of law. I stress, however, that what is said in the previous five paragraphs is very much related to the circumstances of the present case and should not be read as laying down rules or guidelines as to what is necessary by way of reasons in other cases.

 

(d) Conclusion on paragraphs F, G and H of the statement of reasons

43. In paragraph F the tribunal referred to its wider discretion under section 9 of the Education Act 1996. In view of its conclusion on incompatibility with efficient education under paragraph 3(3), there could not be any additional advantage to the parent in having regard to parental preference under section 9. The tribunal must, especially in view of its express adoption of the principles of the Hampshire case, have been acting under section 324(4) of the Education Act 1996. As explained in that case (see in particular [63] to [66]), the general discretion contained in the requirement in section 324(4) to name in the statement the school considered appropriate for the child in question must be exercised if neither paragraph 3(3) nor section 9 is dispositive. Any incompatibility with the provision of efficient education to other children or with the efficient use of resources that has already been found will be a relevant factor, but so are the reasons behind the parent's preference for any particular school.

 

44. Here, the tribunal was entitled to conclude that the case put forward by the parent did not amount to a contention that the educational provision on offer at S School was unsuitable. It then evaluated the parent's case on the factors that she said made M School more suitable for D than S School and explained why it did not accept that case. So far as the factors mentioned went, the reasons given could not be impugned as inadequate. The weight to be given to the parental preference in the exercise of the discretion was a matter for the tribunal.

 

45. However, there was still a gap in the evidence before the tribunal. The directions following the case management hearing on 8 June 2009 had required the local authority to provide information about levels of staffing and additional provisions available at both schools. As noted in paragraph 11 above, although a prospectus and the most recent OFSTED report for S School were provided, no evidence about staffing levels etc in S School was provided beyond the comparative percentage figures in the table at page 8 of the second First-tier bundle. Presumably it was thought important for the information to be obtained for both schools, otherwise the direction would not have been made in those terms. According to the parent, she queried the absence of information about S School with an officer of the local authority a few days before 8 July 2009 and was assured that everything would be available at the hearing. In addition, she says that the tribunal asked Mr McKendrick to telephone S School for information during a break in the hearing, but got the answer that as it was their sports day no-one was available who could assist. I cannot find a mention of that in the tribunal judge's notes, but I do not recall that Mr McKendrick has contradicted that account.

 

46. The potential relevance of the missing evidence was that if it showed that S School was under much the same general pressure as M School from the presence of pupils with statements, in conjunction with the presence of other pupils on School Action or School Action Plus, then that would have been a relevant factor in the exercise of the general discretion under section 324(4). The argument for the parent, partly based on rather second-hand evidence coming to light well after 8 July 2009, is that that was the case and that that would balance out the weight of any incompatibility with efficient education from the admission of D to M School, leaving her preference as a decisive factor. I am not going into all that. However, it does seem to me that section 324(4) entails the identification of the most appropriate school for the child in question, if more than one school could be suitable, so that there must in such cases be something of a comparative exercise. It is not entirely clear how far the argument mentioned above was actually put to the tribunal of 8 July 2009. However, there is an arguable case that, in the light of the failure by the local authority to comply with the case management directions, the tribunal should have made some express reference in its statement of reasons to the absence of comparable evidence from S School to that from M School and how that affected its weighing up of the relevant factors that it had identified. As I have already concluded that there was a material error of law in inadequacy of reasons on another issue, I do not need to conclude whether this deficiency on its own amounted to a material error of law. But it is some reinforcement to the conclusion in paragraph 42 above.

 

(e) Procedural unfairness

47. Given the conclusions above, I do not have to deal with two issues raised by Mr Lawson for the parent. Nor does guidance needs to be given on them to the new tribunal that will necessarily be looking at rather different circumstances. Therefore, I make no rulings on them, but mention them very briefly for completeness. That is of some significance because Mr McKendrick for the local authority did not consent to the appeal being determined, following a giving of permission, without the opportunity for further submissions to be made, if the first issue of procedural fairness was to be a basis of the giving of permission.

 

48. That first issue, putting the argument at its strongest, was that the local authority had failed to follow the statutory requirement, where transfer to secondary school is coming up in a September, to name a secondary school in the statement of special educational needs before the previous 15 February. It was said that D's interests had been severely damaged by that failure, as if he had been considered with the other potential M School entrants before that date he would have had a much better chance instead of being characterised as the 13th applicant after the quota of 12 had already been filled. Mr Lawson argued that the local authority could not take advantage of its own public law wrong and that its breach of duty fatally infected its decisions that followed and the decision of the tribunal itself. There are several controversial steps in that argument which may well have to be explored in detail in some other case. It is best that I express no opinion about them now, especially as neither representative was in a position at the hearing before me to put forward a properly researched submission.

 

49. I merely mention here the particular provision that seems to be relevant and some of the difficulties of interpretation. It is regulation 19 of the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001, which is conveniently copied in Appendix A to the Special Educational Needs Code of Practice:

 

"19.-(1) This regulation applies where--

(a) a statement is maintained for a child, and

(b) the child is within twelve calendar months of a transfer between phases of his schooling.

(2) In this regulation a transfer between phases of schooling means a transfer from--

(a) primary school to middle school;

(b) primary school to secondary school;

(c) middle school to secondary school; or

(d) secondary school to an institution specified in section 2(2A) of the [Education Act 1996].

(3) Where this Regulation applies an authority must ensure that the child's statement is amended so that before 15th February in the calendar year of the child's transfer the statement names the school or other institution which the child will be attending following that transfer."

 

50. Mr McKendrick rightly said, without having that provision in front of him, that it did not apply to the first making of a statement, so that there was no duty for the statement issued on 30 January 2009 to name a secondary school for D. However, that does not get over the argument that from that date onwards the local authority came under a duty to amend the statement before 15 February 2009 to name a secondary school. There may be a question whether "maintaining" a statement requires the passing of any time, but I say nothing about that or about the much more difficult questions of what the effects are of a failure to comply with regulation 19. In my judgment, the new tribunal, which is going to have to look at matters after D had in fact been attending S School for nearly a school year, could not be constrained to name M School in D's statement even if Mr Lawson were entirely right in law in all his submissions on this issue.

 

51. The second procedural issue is whether the parent was deprived of a fair opportunity of making her case by the way in which the document prepared by Ms B was dealt with at the hearing on 8 July 2009. I can see that the parent, even with her representative there to assist, was put in a very difficult position. She could have taken an adjournment to consider the document, but if the reality was that Ms B and any other school witnesses could not be available again until the end of the school summer holidays, any eventual practical success in the appeal would be undermined, at least to some extent. It can be said that at an oral hearing where witnesses are expected to give detailed evidence, new points must be expected to emerge and that getting a written statement on the day is an advantage. On the other hand it is difficult for most ordinary people to take in documents of such a complexity in the strained atmosphere of a hearing. They can be thrown off their stride. And there is something more solid about a written statement that a tribunal can take away to look at and refer to, as happened in this case whether it was formally admitted or not, that it is hard for an ordinary person to counter by oral questions or submissions on the day without the opportunity to put in some written reply. None of that leads to any easy answer to the dilemma for the tribunal and the parent. I am glad not to have to resolve it for the purposes of this case, although I observe that if an adjournment has been offered with time for consideration and refused, matters would have to be fairly clear to say that a tribunal went wrong in law in proceeding to decide the appeal on the day. So far as the new tribunal is concerned, Ms B's statement has been available to the parent and her representative now for a long time and in any event up-dated evidence will no doubt be required.

 

D. The Upper Tribunal's decision

52. Since material errors of law have been identified above, the parent must be given permission to appeal against the decision of the tribunal of 8 July 2009. As relevant consents have been given, the decision on the appeal can also be given. Under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007, the Upper Tribunal need not set aside the decision of a tribunal even if it has been found that the decision involved the making of an error on a point of law. Here, if, for instance, it had been the case that D had started to attend S School and was getting on entirely to the parent's satisfaction, there would have been an argument for invoking that provision. However, that is, without going into any details, not the case. Accordingly, for the reasons given above, the decision of the tribunal of 8 July 2009 is set aside.

 

53. Mr Lawson initially submitted that the Upper Tribunal should re-make the decision on the appeal against the contents of the statement issued on 9 March 2009 by naming M School in Part 4 of the statement. However, in my judgment the re-making of the decision by the Upper Tribunal, making any decision that the First-tier Tribunal could make if it were re-making the decision (section 12(4)(a)), inevitably means that the circumstances down to the date of the re-making would have to be considered. That would require the opportunity for new evidence to be produced and for new submissions to be made about what would then I think be the only realistic possibility of a transfer to M School in September 2010 and a new hearing to evaluate the new evidence and submissions. All of that is plainly most efficiently done by a remission to a new First-tier Tribunal, quite apart from the major point that the evaluation ought to be carried out by a body with the experience and expertise of the members of the relevant part of the Health, Education and Social Care Chamber. This is not a case in which the Upper Tribunal could substitute a decision without having to make fresh findings of fact after considering evidence and submissions, even if Mr Lawson's most far-reaching procedural unfairness submission were accepted.

 

54. Accordingly the case is remitted to a new tribunal for reconsideration subject to the following directions.

 

Directions to the new tribunal

55. No-one who was a member of the tribunal of 8 July 2009 is to be a member of the new tribunal that reconsiders the parent's appeal against the contents of the statement of special educational needs issued on 9 March 2009. There must be a complete rehearing of the appeal on the evidence produced and submissions made to the new tribunal, which will not be bound in any way by any findings made or conclusions expressed by the tribunal of 8 July 2009. That is particularly so because the new tribunal will have to consider the circumstances as they are at the date of the rehearing, by which time things will have moved on very considerably from where they were in July 2009.

 

56. I direct that a case management hearing is to be listed as soon as practicable, preferably within four weeks of the date of issue of this decision, to consider the procedure to be followed and in particular how any necessary further evidence is to be identified and provided.

 

57. The new tribunal is to apply the approach of law set out in paragraphs 27 to 36 above, but I give no further directions on the substantive law. The evaluation of all the evidence will be entirely a matter for the judgment of the members of the new tribunal. The fact that this appeal on a point of law has succeeded does not imply that the parent will necessarily be successful at the rehearing. This decision is entirely neutral on that issue.

 

 

 

 

(Signed on original): J Mesher

Judge of the Upper Tribunal

 

Date: 21 May 2010