Upper Tribunal (Administrative Appeals Chamber)

 

 

 

THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

Upper Tribunal Case No. HS/1518/2010

 

 

 

PARTIES

 

 

KP

 

and

 

Hertfordshire County Council

 

 

APPLICATION FOR PERMISSION TO APPEAL

AGAINST A DECISION OF A TRIBUNAL

 

 

 

 

 

DETERMINATION OF THE UPPER TRIBUNAL

 

 

 

JUDGE WIKELEY

 

 

 

 

 

 

 

 

 

 

 

 

DETERMINATION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

 

I refuse permission to appeal to the Upper Tribunal against the decision of the First-tier Tribunal dated 4 June 2010.

 

I also order that there is to be no publication of any matter likely to lead members of the public, directly or indirectly, to identify the child who is the subject of this application.

 

This determination is made under section 11 of the Tribunals, Courts and Enforcement Act 2007 and rules 14, 21 and 22 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

 

 

REASONS FOR DECISION

 

Introduction

 

1. This is an application by the mother (but in practice both parents) of a child with special educational needs (“C”). The application is for permission to appeal against an interlocutory decision dated 4 June 2010 of the Special Educational Needs and Disability Tribunal, part of the Health, Education and Social Care (HESC) Chamber of the First-tier Tribunal.

 

2. As explained in more detail below, this application has been dealt with by the Upper Tribunal on an urgent basis in view of the pending First-tier Tribunal hearing on the substantive issues. The present application was the subject of an oral renewal hearing at Harp House on the afternoon of 6 July 2010. The parents were represented by Mr J. Friel of Counsel. I am grateful to him for his submissions, and in particular for his endeavours to clarify and refine the matters in dispute. The local authority was not present or represented at the oral hearing, but had written indicating that no discourtesy was intended, rather that the authority was mindful of the need to avoid incurring unnecessary costs. The authority had, however, made written representations on the application, which I have taken into account.

 

3. Given the impending First-tier Tribunal hearing, I announced my decision orally at the end of the hearing to refuse permission to appeal. I indicated that I would not be delivering an “ex tempore” reasoned judgment on the day but would issue a reasoned decision later in the week. These are my reasons.

 

The First-tier Tribunal’s decision of 4 June 2010

 

4. The First-tier Tribunal’s decision, in respect of which permission to appeal was sought, was issued on 4 June 2010. That decision was contained in the body of a letter from the tribunal clerk to the parties and was expressed in the following terms:

 

“1. Having considered the arguments for and against ordering the parents to make C available for a Local Authority SALT [speech and language therapy] assessment it is ordered that the parents’ [sic] do make C available for such an assessment for the reasons given by the Local Authority with which the Tribunal agrees with in their entirety and will not simply retreat [sic].

2. The application by the parents for a wasted costs order is refused as it is premature as there is no evidence that the Local Authority have refused to pay any such costs or indeed know what they are.

3. The application for a telephone conference and witness summons for [the local authority’s SENCO, or special educational needs co-ordinator] is refused as there is no evidence she has been written to for answers to any issues it is felt are unclear and that she has refused to provide such information.”

 

5. I must record at the outset that at the hearing Mr Friel helpfully narrowed the grounds of appeal to focus on paragraph 1 of the First-tier Tribunal’s decision. He candidly admitted that the application for the wasted costs order had been premature and that he did not propose to pursue the issue in these proceedings. He also indicated that the local authority had provided some further explanation in relation to the SENCO issue. Whatever the full circumstances surrounding that issue, again he did not regard it as appropriate to take the matter further as part of the present application.

 

The background to the First-tier Tribunal’s decision of 4 June 2010

 

6. The First-tier Tribunal decision issued on 4 June 2010 followed a series of applications by the parties for directions, along with responses to the other party’s application. This was part of the case management process leading up to the substantive hearing which had been scheduled by the First-tier Tribunal to take place on 7 July 2010, i.e. the day after the hearing at the Upper Tribunal of the present application.

 

7. The parents’ appeal in relation to C’s amended Statement of Special Educational Needs, issued on 19 January 2010, was received by the First-tier Tribunal on 8 March 2010. Judge Aitken, Deputy Chamber President, subsequently issued detailed case management directions. These provided that either party could apply for a variation to the directions by completing the standard Request form (known as an SO4) and setting a deadline of noon on 28 April 2010 for such applications. The hearing of the appeal proper was set for 7 July 2010. The covering letter with the directions explained that “This case has an earlier hearing date and an amended timetable to allow for secondary transfer”. Mr Friel advised me that in fact C was transferring to secondary education within the same school.

 

8. On 6 April 2010 the local authority wrote to the parents’ solicitors requesting that they be given permission to conduct a SALT and occupational therapy (OT) assessment. The parents’ solicitors replied on 8 April 2010, refusing that request and giving detailed reasons.

 

9. On 27 April 2010 the local authority applied to the First-tier Tribunal, submitting a SO4 Request form, and asking for a direction for a Speech and Language and Occupational Therapist to assess C. No detailed reasons were given for the request, other than the somewhat bland statement that the local authority “would like a Direction” to that effect. It may be questionable whether that was really sufficient to meet the requirement of Rule 6(3) of the Tribunal Procedure (First-tier Tribunal)(Health,  Education and Social Care Chamber) Rules 2008 (SI 2008/2699) “the HESC Rules”), which requires every application for a direction “to include the reason for making that application”. The local authority also referred to Rule 15(4)(a), which provides that

 

“(4) In a special educational needs case the Tribunal may require—

(a) the parents of the child, or any other person with care of the child or parental responsibility for the child (as defined in section 3 of the Children Act 1989), to make the child available for examination or assessment by a suitably qualified professional person;”.

 

10. The parents’ solicitors replied with a detailed response, dated 5 May 2010, objecting to the local authority’s application for such a direction as premature and giving nearly three pages of commentary on the request and reasons for opposing it. I describe this as the parents’ SO4 reply form.

 

11. On 24 May 2010 the local authority submitted a further SO4 Request form, giving a justification for its application for the SALT and OT assessment running to nearly two pages, and taking issue with some of the points made in the parents’ response. I call this the local authority’s SO4 rejoinder form. Even if the local authority’s original application did not meet the requirement to state a reason within Rule 6(3), that deficiency was cured by the SO4 rejoinder form.

 

12. Meanwhile, on 27 May 2010, the parents’ solicitors submitted a further SO4 Request form of their own, asking for two further directions. The first was a wasted costs order in relation to a visit by the parent’s independent educational psychologist in connection with her visit to the local authority’s named school (on a date when the SENCO had not been available, although the date had previously been agreed). The second was a direction that the First-tier Tribunal should either direct a telephone conference with the SENCO or in the alternative issue a witness summons requiring her attendance on the day of the substantive hearing.

 

13. The various applications for further directions were then considered by a Tribunal Judge. His or her decision was then communicated to both parties in the letter signed by the tribunal clerk and dated 4 June 2010. It is not apparent from that letter which tribunal judge determined the applications.

 

The application for permission to appeal to the Upper Tribunal

 

14. On 10 June 2010 the parents’ solicitors then applied for an urgent review of the decision issued on 4 June 2010 with an application for an oral hearing or, in the alternative, permission to appeal to the Upper Tribunal. The grounds for the application were stated as being (1) the First-tier Tribunal had not given adequate reasons for its decision; and (2) there was “admissible evidence before the Tribunal of a refusal to answer questions” by the local authority’s SENCO, which it was said justified both the wasted costs order and the request for a telephone conference or witness summons.

 

15. The parents’ application was considered by Tribunal Judge Saffer on 17 June 2010. He refused the application for a review on the basis that there had been no change of circumstances and no error of law in the 4 June 2010 decision, explaining briefly why that was the case in his view. He also refused permission to appeal to the Upper Tribunal, again on the basis that no error of law had been shown.

 

16. I interpolate here that the local authority wrote to the First-tier Tribunal on 18 June 2010 setting out their reasons for opposing the parents’ application for a review of the 4 June 2010 decision and/or permission to appeal. Those detailed reasons were presumably not before Judge Saffer when he made the decision on 17 June 2010.

 

17. A week later, on 25 June 2010, the parents’ solicitors applied direct to the Upper Tribunal for permission to appeal against the interlocutory order dated 4 June 2010. This was accompanied by extensively argued grounds of appeal settled by Mr Friel. The grounds of appeal against the decision of 4 June 2010 were as follows: (1) that the local authority had unfairly misled the First-tier Tribunal in its written submission of 21 May 2010 (I think this must be a misprint for 24 May 2010, the date of the local authority’s SO4 rejoinder form); (2) that the 4 June 2010 decision was procedurally unfair as there should have been a telephone or oral hearing; (3) that the decision was in error of law for want of adequate reasons; and (4) that the refusal of the telephone conference or witness summons was irrational.

 

18. I interpolate here that, as noted above, Mr Friel expressly – and, in my view, very wisely – abandoned any reliance on ground of appeal (4) at the oral hearing before the Upper Tribunal.

 

19. As the matter was stated by the parents’ solicitors to be urgent, the application was considered by Judge Ward on the papers on 29 June 2010. In summary, Judge Ward concluded that the supporting documents filed with the application were insufficient to demonstrate an arguable case such that permission to appeal should be granted. He observed that in the case of an urgent interlocutory application it could not be assumed that the Upper Tribunal would have ready access to the First-tier Tribunal file. Judge Ward noted that the applicant had a right to renew the application at an oral hearing (see Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698), rule 22(4) and (5)). Judge Ward also abridged the time for making such a reconsideration application from the usual 14 days to 2 days, in view of the First-tier Tribunal hearing date.

 

20. On 30 June 2010 the parents’ solicitors applied to renew the application for permission to appeal at an oral hearing. I am grateful to both parties and to their respective representatives for complying with Judge Ward’s further case management directions of the same date, with the result that Mr Friel appeared to renew the application on 6 July 2010.

 

21. In his skeleton argument and in his oral submissions, Mr Friel expanded on the first three grounds of appeal set out at paragraph 17 above. I will take those in reverse order.

 

Were the First-tier Tribunal’s reasons inadequate?

 

22. The First-tier Tribunal Judge directed a Local Authority SALT assessment “for the reasons given by the Local Authority with which the Tribunal agrees with in their entirety and will not simply retreat.” I assume that “retreat” is simply a typographical error for “repeat”. In short, the First-tier Tribunal was adopting and incorporating the local authority’s arguments as set out in the exchange of SO4 forms.

 

23. Mr Friel sought to persuade me that this approach did not meet the threshold for adequate reasons. He referred me to the well-known authorities from the courts, e.g. Meek v Birmingham City Council [1987] IRLR 250 and H v East Sussex County Council [2009] EWCA Civ 249, as well as more recent Upper Tribunal decisions concerning the standards of reasons required from tribunals, such as MW v Halton Borough Council [2010] UKUT 34 (AAC).

 

24. As Mr Friel conceded, those cases were all concerned with what might be called “final decisions”, in which the tribunal concerned was finally disposing of an appeal. Mr Friel rightly acknowledged that less detailed reasoning might well be in order in determining interlocutory matters. However, he argued, there were exceptions to the less demanding standard for interlocutory decisions, for example as here where the parents had raised specific points about the dangers of over-assessment associated with a further assessment of C, given his vulnerability.

 

25. In Meek v Birmingham City Council, Sir Thomas Bingham MR (as he then was) explained as follows:

 

"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and 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 sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises….."

 

26. Given those observations, the Meek test, as it is sometimes called, must primarily relate to a final decision by a tribunal. As Sir Thomas Bingham MR pithily put it, “The parties are entitled to be told why they have won or lost.” The present application did not involve anyone “winning” or “losing”. It was one of many steps along the way to a resolution of the substantive issues in dispute. The work of courts and tribunals would grind to a halt if interlocutory decisions were to require “an outline of the story which has given rise to the complaint and 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.” Context is everything.

 

27. The case law is instructive. But we have to start from first principles – namely what was the statutory obligation imposed on the First-tier Tribunal by way of reason giving? The answer, of course, lies in the HESC Rules. The procedure for applying for and giving directions is set out in Rule 6 of the HESC Rules. Rule 6(4) requires the tribunal (unless there is good reason why not) to send a written notice of any direction to each party. There is no express requirement within Rule 6 for reasons to be given. Moreover, under Rule 30(2) the First-tier Tribunal “must provide to each party as soon as reasonably practicable after making a decision which finally disposes of all issues in the proceedings” (emphasis added) a decision notice with written reasons and a notification of appeal rights. The decision of 4 June 2010 was plainly one that did not finally dispose of all issues in the proceedings and so the detailed requirements of Rule 30(2) did not apply.

 

28. However, Rule 30(4) provides that “the Tribunal may provide written reasons for any decision to which paragraph (2) does not apply” (emphasis added). That provision clearly imports a judicial discretion. So, in deciding directions applications, a tribunal may or may not give reasons, depending on whether it is appropriate. In the great majority of cases, I would expect that a tribunal dealing with an interlocutory matter would be able to explain its decision with a sentence or two summarising the reasons. As Laws LJ remarked in Carpenter v Secretary of State for Work and Pensions [2003] EWCA Civ 33, also reported as Social Security Commissioners’ decision R(IB) 6/03, “For my part I consider it clear that, in the ordinary way and as a matter of practical good sense, any obligation to give reasons for an ancillary or procedural act, such as the grant or refusal of an adjournment, will be relatively summary in nature, at least by contrast to the quality of reasons required for an outcome decision itself” (at paragraph 25).

 

29. I accept, of course, that the present application related to a weightier matter than a simple request for an adjournment. However, the fact remains that it was an interlocutory application. Both sides had “set out their stall” in detailed written submissions. Both sides were legally represented, so the tribunal judge was speaking to an informed audience. In the final analysis the reason why the local authority’s application had been approved was that the tribunal judge preferred the arguments of the authority to those of the parents in relation to the request for an assessment (and indeed the other matters). The incorporation of reasons by reference is not necessarily objectionable (see Givaudan & Co. Ltd. V Minister of Housing and Local Government [1967] 1 WLR 250), especially given this was an interlocutory matter, although of course the practice needs to be approached with caution in the context of final decisions.

 

30. I would sum the situation up as follows. There was no statutory duty on the tribunal to give reasons for its interlocutory decision on the parties’ respective applications. Instead, the tribunal had a discretion as to whether to give reasons. The exercise of that discretion is not governed by the Meek test, although the overriding objective in Rule 2 of the HESC Rules will be relevant. It may well be good judicial practice to give brief reasons for any interlocutory decision. This tribunal did just that. The submission that it erred in law in some way is simply unsustainable.

 

Was the First-tier Tribunal in error in not ordering a telephone or oral hearing?

 

31. Mr Friel submitted that the decision of 4 June 2010 was vitiated by the failure of the First-tier Tribunal to hold a telephone hearing or oral hearing of the application. In summary, he argued that the rules of natural justice pointed inexorably to the need for such a hearing. To decide the application on the papers, simply by considering the written submissions, was not appropriate to the importance of the matter. Moreover, given that the application concerned a vulnerable child, and penalties might be attached to any failure to abide by the tribunal’s directions, a fair procedure mandated a telephone or oral hearing.

 

32. The starting point must be the HESC Rules that govern the procedure before the First-tier Tribunal. Rule 6 makes no express provision for an oral hearing to determine an application for directions. Rule 23 provides that “the Tribunal must hold a hearing before making a decision which disposes of proceedings”, subject to certain exceptions which do not apply for present purposes. Given that the application(s) before the First-tier Tribunal did not dispose of the proceedings, it necessarily follows that the tribunal was not under a duty to hold a hearing. Indeed, the very fact that the HESC Rules make express provision for a tribunal to dispose of proceedings by striking out (under Rule 8) without a hearing contemplates that interlocutory applications do not ordinarily require oral hearings. (I am also conscious that whilst practice varies across the different Chambers of the First-tier Tribunal, many interlocutory matters are dealt with as a matter of course as “box work” or “on the papers” and without a hearing.)

 

33. Even under the previous Special Educational Needs Tribunal Regulations 2001 (SI 2001/600), which have now been revoked, there was no right to an oral hearing on an application for directions. At most, where proposed directions were disputed, the position was that “the President shall consider the objection and, if he considers it necessary for the determination of the application, shall give the parties an opportunity of appearing before him” (regulation 21(2)). There is certainly now no statutory obligation on the First-tier Tribunal to hold a telephone hearing or an oral hearing of the applications in question. That disposes of Mr Friel’s submissions based on the passage in De Smith’s Judicial Review (2009) at paragraphs 7-063 to 7.065, where the learned commentary on “Requirements at an oral hearing” presupposes that a person is either entitled to be heard orally or has been granted an oral hearing as a matter of discretion.

 

34. I note further that the parents’ SO4 reply form did not include a request for an oral or telephone hearing of the local authority’s application. Mr Friel informed me that a previous version of the SO4 form included a question to that effect, but that that question had been removed from the current SO4 form. Be that as it may, the onus was on the parents’ solicitors to make such an application if they considered that the matter warranted such a hearing. They made no such application. The tribunal was entitled to proceed as it did.

 

35. I am not persuaded by the argument that the tribunal should have ordered a telephone or oral hearing of its own volition, given the gravity of the application. This was entirely a matter within the discretion of the tribunal for it to exercise its good judgement. Arguments based on the common law duty of procedural fairness and the decision of the House of Lords in R (Smith) v Parole Board [2005] UKHL 1 do not assist, as the analogy drawn is a false one.

 

36. Mr Friel’s further submission that an oral hearing was required, because of the risk of the parents’ case being struck out were they not to comply with the direction, is misplaced. True, the tribunal has the power to strike out a party’s case (see Rule 8) but only “where the applicant has failed to comply with a direction which stated that failure by the applicant to comply with the direction could lead to the striking out of the proceedings or part of them” (Rule 8(4)(a)). There was no such warning attached to the decision of 4 June 2010.

 

37. According to Rule 15(5), the most that could happen in the event of non-compliance with the direction under Rule 15(4)(a) was that the tribunal:

 

“may consider a failure by a party to comply with a requirement made under paragraph (4), in the absence of any good reason for such failure, as a failure to co-operate with the Tribunal, which could lead to a result which is adverse to that party’s case.”

 

38. This provision is qualified by a series of discretions: the tribunal “may consider” a failure to comply as a failure to co-operate, subject to “good cause”, and this “could lead” to an adverse result. I do not see that as a penal provision in the way that Mr Friel sought to suggest.

 

39. Nor am I persuaded that the fact that the application concerned a request to conduct an assessment on a vulnerable child was in itself a reason to hold an oral hearing. The parents’ SO4 reply form had made the point about C’s sensitivity and the fact that he had undergone repeated assessments. The local authority’s S04 rejoinder form had recognised those concerns and suggested ways in which they might be addressed. All those matters were before the tribunal judge, who was quite entitled to proceed to a paper consideration of the competing arguments.

 

40. Mr Friel also relied on the decision of Johnson J in H v Cambridgeshire County Council [1996] 2 FLR 566. In that case the family proceedings court had refused a parent’s application to show the papers in care proceedings to a consultant psychiatrist with a view to obtaining a further report. Johnson J held that the justices were entitled to proceed as they did, given that the proposed evidence did not bear sufficiently on the issues which they would have to determine. So, Mr Friel argues, the local authority’s application needed to be more specific, and its blanket nature needed to be tested at an oral hearing.

 

41. While H v Cambridgeshire County Council was also a children’s case, the context was important. It was a child protection case in which the Children Act 1989 principles governed the proceedings. It does not in itself support the proposition that the tribunal in the present case erred in any way by proceeding to deal with the application on the papers. This was not a blanket request – in its SO4 rejoinder form the local authority explained why it felt that an assessment was required and undertook to liaise with the parent’s chosen experts to ensure that duplication of testing was avoided.

 

42. My conclusions on this point may be summarised as follows. There was no statutory duty on the tribunal to hold a telephone or oral hearing of the applications. Instead, the tribunal had a discretion as to whether to hold such a hearing. No application for an oral hearing was made in the present case. It was ultimately a matter for judicial discretion. The submission that this tribunal erred in law by not holding a hearing before reaching its decision of 4 June 2010 is not arguable.

 

Did the local authority unfairly mislead the First-tier Tribunal?

 

43. Mr Friel’s primary submission at the hearing before the Upper Tribunal was that the local authority’s SO4 rejoinder form had misled the tribunal by failing to disclose the full facts. It matters not, he suggested, whether that omission was advertent or inadvertent. Mr Friel argued that the alleged non-disclosure by the local authority fundamentally undermines the tribunal’s decision of 4 June 2010 such as to render it erroneous in law. In short, the local authority’s claimed non-disclosure infects the tribunal’s decision as it proceeded on a false premise. Mr Friel relied on the parties’ duty of frankness to the tribunal, as explained in cases such as A v Kirklees Metropolitan Council [2001] EWCA Civ 582, [2001] ELR 657 and R (on the application of JF) v London Borough of Croydon & Anor [2006] EWHC 2368 (Admin).

 

44. I should in fairness at this point note that in its written submissions to the Upper Tribunal the local authority vigorously contested this allegation. It described it as “an extremely serious allegation against the Council, which the Council vehemently denies. The Council has not, and would not, mislead any Court, whether it be the [tribunal] or otherwise”.

 

45. Obviously I recognise that the authorities Mr Friel cites undoubtedly support the requirement for transparency. As Sullivan J. (as he then was) put it in JF v Croydon, “At the hearing, the Local Education Authority should be placing all of its cards on the table, including those which might assist the parents' case”. That requirement is now embodied in Rule 2(4) of the HESC Rules, namely that the parties should help the tribunal further the overriding objective and co-operate with the tribunal generally. It is also important to bear in mind that both A v Kirklees and JF v Croydon were concerned with the evidence before the tribunal at a final hearing. To that extent I do not think those authorities take us any further forward in relation to the disposal of an interlocutory matter than the clear terms of Rule 2(4).

 

46. Mr Friel’s argument was that the local authority’s SO4 rejoinder form was “seriously deficient” in that it failed to make any reference to the earlier 2008 Statement for C or to the reports of his 2009 and 2010 Annual Reviews, in which its staff members had been involved, or to the report from the local authority’s own educational psychologist. Taken together, this was, he argued, a substantial body of material which could and should have made a difference.

 

47. I cannot accept this argument. The parents’ SO4 reply form had itself set out the chronology and details of the myriad assessments and annual reviews concerning C that had taken place, and had also referred to the report from the local authority’s own educational psychologist. The main thrust of the SO4 reply form was that the local authority’s application was premature and insufficiently focussed. The local authority’s SO4 rejoinder form argued that it was not premature as it would not have sufficient time to prepare its position fully before the hearing, given that the parents’ independent reports would not be available until 11 June 2010. The local authority also argued that if SALT needs were an issue, then its expert needed the opportunity to carry out an up-to-date assessment, but bearing in mind the need to avoid over-assessment and duplication.

 

48. As indicated above, both the parents and the local authority SO4 forms contained detailed arguments running to some two pages or more. I am not satisfied that the local authority needed to do any more to explain why it considered that a direction for an assessment was required. It did not have to repeat information and it did not have to quote chapter and verse from the evidence, which would ultimately be a matter for the substantive hearing. The SO4 is a vehicle for making submissions on the reasons for the application, not providing a full commentary on all the evidence. I note in passing that this ground of appeal was not included in the original application for review / permission to appeal submitted to the First-tier Tribunal.

 

49. For those reasons I am not satisfied that the local authority’s submission on the application in any way fell short of either the requirement under Rule 2 of the HESC Rules or the principle of frankness and transparency derived from the case law. As I intimated at the end of the hearing before the Upper Tribunal, the points on which Mr Friel was taking issue were ultimately issues of fact which were best addressed to the First-tier Tribunal charged with resolving the substantive issues in dispute.

 

The purpose of Rule 15(4)

 

50. Rule 15(4) had no direct equivalent under the previous Special Educational Needs Tribunal Regulations 2001. I merely note the explanation provided in the official HESC Special Educational Needs and Disability Newsletter (2 October 2008), available on the Tribunals Service website, which states that:

 

“The provision in the new Rules gives the Tribunal the power to require a parent to make a child available for assessment by an appropriate professional and/or to require a school to allow a professional instructed by a parent into the school to assess the child’s functioning in a school environment. This is designed to ensure professionals can provide up to date information about a child and ensure the right level and balance of up to date evidence is given to the Tribunal so that it has the fullest possible picture to support effective decision-making for the child.”

 

The scope of paragraph 1 of the decision dated 4 June 2010

 

51. Mr Friel pointed out that the First-tier Tribunal’s decision of 4 June 2010 directed “a Local Authority SALT assessment” but made no reference to any occupational therapy (OT) assessment. The local authority’s original application and its subsequent SO4 rejoinder form referred to both a SALT and an OT assessment. I am not persuaded that this amounts to a material error of law. The parents’ fundamental objection to the application was to the making of a direction for an assessment at all, not as to the scope of any such direction.

 

52. It may be that the First-tier Tribunal simply overlooked the fact that the request was for a SALT and an OT assessment. It may be that the tribunal took a conscious decision to direct the former but not the latter, although one might have expected some explanation if that distinction were being made. If the issue is still live – which will obviously turn on the outcome of the 7 July 2010 hearing before the First-tier Tribunal – then it seems to me this is essentially a matter for the local authority to pursue. If the local authority remains unhappy with the precise scope of the order for an assessment, its remedy is to apply to the tribunal under Rule 6(5) of the HESC Rules for an order amending the first direction.

 

Conclusion

 

53. For the reasons above, I dismiss this application for permission to appeal against the First-tier Tribunal decision dated 4 June 2010.

 

 

 

 

 

Signed on the original Nicholas Wikeley

on 7 July 2010 Judge of the Upper Tribunal