IN THE UPPER TRIBUNAL S/3095/2009

ADMINISTRATIVE APPEALS CHAMBER

 

 

 

 

 

Appellant: NG-I

 

Respondent: Wiltshire County Council

 

 

 

 

 

 

DECISION OF THE UPPER TRIBUNAL

ON AN APPLICATION FOR PERMISSION TO APPEAL

FROM A DECISION OF THE FIRST-TIER TRIBUNAL

(HEALTH, EDUCATION AND SOCIAL CARE CHAMBER)

 

 

Upper Tribunal Judge H. Levenson

 

 

 

 

 

 

ON APPEAL FROM:

 

Tribunal: The First-tier Tribunal (HESC Chamber)

Tribunal Case No: 09/01129

Decision Dates: Hearing: 9^th September 2010; Decision: 18^th September 2009

 

S/3095/2009

 

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

ON AN APPLICATION FOR PERMISSION TO APPEAL

 

Decision

 

1. I refuse permission to appeal against the decision of the First-tier Tribunal (Health, Education and Social Care Chamber) made on 18^th September 2009 (after a hearing on 9^th September 2009) under reference 09-01129, dismissing an appeal in respect of the Statement of Special Educational Needs dated 1^st April 2009.

 

Hearing

 

2. I held an oral hearing of this application on 13^th July 2010. The mother of the child in question did not attend in person but was represented by Russell Holland of counsel. The respondent local education authority (“the authority”) was represented by Aileen McCoy, who is one of its officials but who is not legally qualified. I am grateful to them both for their attendance and assistance.

 

Background and Procedure

 

3. The child in question is a girl, A, who was born on 13^th June 1995. She is a child with special educational needs and in respect of whom the respondent local education authority maintains a statement of special educational needs. She had been diagnosed in 2004 as having attention deficit hyperactivity disorder but in 2006 this was revised to a diagnosis of Asperger’s Syndrome. It has been suggested that she has a complex autistic spectrum disorder. She had been attending a maintained mainstream comprehensive school but had walked out on several occasions and had been withdrawn from that school in October 2008. The local education authority had arranged tuition for A at home by teachers from school S, a special school maintained by the authority. This arrangement broke down. It seems that A had walked out of the home during lessons and there had also been discouraging comments from a teacher who had resigned from the school, the comments, or the conduct of the teacher in making them, being described by the head teacher as inappropriate. I understand that A has not been in education since that time.

 

4. In the statement of 1^st April 2009 the local authority specified school S, which is registered as meeting the needs of pupils with severe social emotional and behavioural difficulties. One third of its pupils have a diagnosis of autistic spectrum disorder or related problems and the intention is to increase this to one half. The school takes each new pupil as the only pupil starting on that day and one of only two starting in that week. In the words of the First-tier Tribunal (paragraph 12):

 

“The most recent OFSTED report on [school S] described the school as an exceptional school, with consistent ‘outstanding’ ratings in each section of the inspection report”.

 

4. A has a younger brother who attends school F. A also wishes to attend this school and her mother wishes school F to be named in the statement. This is a school for pupils with a core diagnosis of Asperger’s Syndrome or related disorders. Both parties agree that this school is appropriate to meet A’s needs. A’s mother does not accept that school S can meet her needs and therefore appealed to the First-tier Tribunal against the contents of the statement.

 

5. A had been undergoing assessment by the local Child and Adolescent Mental Health Service (CAMHS) provided by the Primary Care Trust (PCT). She had been seeing an occupational therapist who was part of the CAMHS team and to whom I shall refer as “OT”. The team was lead by Dr B, a consultant psychiatrist. The First-tier Tribunal had directed that OT’s report be produced by a certain date but this turned out not to be possible because although the report had been prepared it could not be released until it had been approved by Dr B. A had an appointment to see both OT and Dr B on 25^th August 2009.

 

6. On 20^th August 2009 judge of the First-tier Tribunal extended the time for the production of OT’s report to 1^st September 2009. However, the judge directed that any report from Dr B would not be admitted in evidence because the authority would not then have time to consider it. Further, OT’s report would have been seen by Dr B prior to its distribution. Mr Holland argues that the implication of this was that Dr B could be taken to have endorsed the contents of the report. I return below to the significance of this.

 

7. The First-tier Tribunal considered the appeal on 9^th September 2009 and issued its decision on 18^th September. There was some disagreement between the parties over the contents of parts 2 and 3 of the Statement but these have largely been resolved and are not the subject of the application to the Upper Tribunal, which relates to which of the two specific schools should be named in part 4 of the statement.

 

8. The tribunal did not need to consider whether school F was appropriate, as this was agreed between the parties. This issue was whether school S was also appropriate. The tribunal took, accepted, and recorded a considerable amount of evidence from the head teacher of school S and was satisfied that it was an appropriate school. This is a finding that it was entitled to make on the evidence before it. Because of the relative costs involved in naming the two schools (an issue to which I return below) the tribunal specified school S.

 

9. A’s mother applied for permission to appeal to the Upper Tribunal against the decision of the First-tier Tribunal. On 31^st October 2009 the judge of the First-tier Tribunal refused that application. A’s mother renewed her application to the Upper Tribunal itself and on 15^th December 2009 Upper Tribunal Judge Wikeley refused permission after consideration of the papers. A’s mother renewed her application once more and on 28^th January 2010 I directed that there be an oral hearing. The local education authority opposes the application and supports the decision of the First-tier Tribunal. The Upper Tribunal was ready to hear this matter at the end of April (and possibly earlier) but the parties were unable to find a date on which they could both be available. This is unfortunate and those acting should note that if they are involved in any future such cases the Upper Tribunal will not allow a similar delay to build up.

 

The Principal Relevant Legal Provisions

 

10. So far as concerns this appeal the following provisions of the Education Act 1996 are particularly relevant:

 

Section 9: In exercising or performing all their respective powers and duties under the Education Acts the Secretary of State and local education authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.

 

Section 324(4): The statement [of special educational needs] shall –

 

(a)   specify the type of school or other institution which the local education authority consider would be appropriate for the child, [and]

(b)  … specify the name of any school or institution … which they consider would be appropriate for the child and should be specified in the statement …

 

Where the matter is being considered on appeal by the First-tier Tribunal these duties apply to that tribunal as they do to the local education authority.

 

11. It seems to me that in a case in which needs have been identified, and in which the local education authority and the parents each wish a different school to be named, and in which the First-tier Tribunal has to chose between the two schools, then in essence these provisions require three questions to be addressed:

 

(a)   Are both schools appropriate to meet the need? A school that is not appropriate cannot be named.

(b)  If they are both appropriate, which is the school preferred by the parents? Unless (c) applies that school must be named.

(c)   Would naming the school preferred by the parents be incompatible with the provision of efficient instruction and training or the avoidance of unreasonable public expenditure? If so the school suggested by the local education authority must be named.

 

The Evidence Issue

 

12. OT gave evidence to the First-tier Tribunal that in her opinion A has a complex autistic spectrum disorder. She said that she had discussed the diagnosis with Dr B. The tribunal observed, “However, there was no evidence available to the [First-tier Tribunal] indicating any change in the medical diagnosis” (paragraph 2 of the First-tier Tribunal decision). In its decision the tribunal also stated:

 

C(2). [OT] has described [A]’s autistic condition as complex. We respect her opinion but she does not have appropriate medical qualifications to enable us to rely on her professional assessment of A. We so not accept that complex should be added to any of the descriptions of provision incorporated into Part 3 [of the statement]”.

 

13. In refusing permission to appeal to the Upper Tribunal the presiding judge of the panel that heard the appeal stated,

 

“The tribunal members indicated at the hearing that it would be inappropriate to accept a medical diagnosis from a nurse, rather than of the doctor involved with [A]’s treatment. The inclusion of the additional word would not (in all the circumstances) have impacted on issues relating to placement. This was explained to the parties at the hearing and was accepted by them at that time”.

 

I observe that OT was in fact an occupational therapist and not a nurse, and I assume that this was just an error.

 

14. It is bad practice to use the statement of reasons explaining a refusal of permission to appeal against a decision, to expand on the reasons for the decision. The original reasons should be capable of standing on their own. Partly, this is because the original reasons are those of the full tribunal panel; the reasons for refusal of permission to appeal are those of the judge alone. (It is also bad practice to have a three page document with unnumbered paragraphs). However I am prepared to accept the above as evidence of what happened at the substantive hearing.

 

15. Mr Holland argues that it was central to the appellant’s case at the First-tier Tribunal that A had significant mental health needs which were evidenced by her involvement with the CAMHS. The Directions of 20^th August 2009 had prevented the appellant from producing a report from Dr B, partly because he would have endorsed the report from OT, and so it was unfair to reject OT’s opinion because of a lack of medical qualifications. Also, the tribunal did not state what medical qualifications would have been required, or explain on what basis it found that OT did not have them. This was all unfair.

 

16. There are different issues here. No evidence has been produced, and no real suggestion made, that OT has qualifications beyond being an experienced occupational therapist and Mr Holland’s argument on this point is not the least bit persuasive. I also accept that whether or not the word ”complex” were to be added was unlikely to have made a difference to the placement. These problems are all complex in the ordinary sense of the word and no special technical meaning has been suggested to me in this context.

 

17. I am more sympathetic to Mr Holland’s argument that it was wrong to exclude evidence from Dr B, a consultant psychiatrist. The combination of the interlocutory direction to this effect with the comments of the First-tier Tribunal on the evidence of OT can certainly be argued to amount to a breach of the rules of natural justice and fair procedure but that is not enough in the circumstances of this case for this application to succeed. Notwithstanding all the time that has passed, no report from Dr B has been obtained for the Upper Tribunal so that a judgment on any remedy can be made, and I also refer to my conclusions below.

 

 

The Expenditure Issue

 

18. The First-tier Tribunal reasons included the following (paragraph 26):

 

“The [authority] indicated that it would cost in excess of £90,000 pa to place [A] at [school F]. There would be no additional cost to the [authority] of placing [A] at [school S] as the school is place funded and a place is already allocated to [A]. Whilst the detailed costings were challenged by [A’s representative], she indicated that the additional cost to the [authority] of the provision in place for A was significant. She accepted that were the Tribunal to conclude that both schools could meet [A]’s needs adequately, the additional cost would represent unreasonable public expenditure”.

 

19. The matter was pursued in reasons given by the First-tier Tribunal judge for refusing permission to appeal to the Upper Tribunal. It was stated that the extra costs if A were to attend school F were stated by the authority to be £96,000 excluding transport costs, that a number of different calculations were considered, that some of these were based on a minimum cost £35,000 for school F, but that:

 

“the representative who appears for parents regularly before the Tribunal accepted (on behalf of her client) that would be a significant difference in the cost of the placements being considered, regardless of which calculation were adopted.

Once this concession had been made, it was not necessary for the Tribunal to consider further issues relating to the cost of placement … There was no need, as [the representative] would have been aware, to consider [various cases cited as authority] decided upon financial matters”.

 

20. Mr Holland denies that there was any concession, suggesting that the representative acknowledged only the possibility of there being a significant difference. A significant difference is not the same as unreasonable public expenditure and in one Administrative Court case the judge had found that a difference of £4,000 was not incompatible with the efficient use of resources. The Court of Appeal had said that the tribunal had to carry out the calculation in order to make the comparison (Slough Borough Council v SENDIST and Others [2010] EWCA Civ 668). The representative would not have referred to the various decided cases if a concession were really being made.

 

21. Mr Holland also suggested that the First-tier Tribunal was in error in not considering the cost of mental health treatment, which was also public expenditure. These costs would be less likely to arise if A went to school F because she would be less distressed. However, this is a self-referring argument, I understand that school S has on its staff a psychiatric nurse and a counsellor, and I am not persuaded that it is at all likely that the costs would be measurably different.

 

22. If there really was a concession by an experienced representative, then it was not necessary for the First-tier Tribunal to consider the various legal authorities. The fact that the representative referred to them does not mean that no concession was being made. Ms McEvoy, who attended the First-tier Tribunal hearing, told me that she was in no doubt that the representative had accepted that there would be a significant difference in cost. In my view the word “significant” can only mean significant in a particular context or for a particular purpose. Something cannot be significant in the abstract – so I am not impressed by the suggestion that what was said to be significant was of no significance. I accept the view of the First-tier Tribunal panel and of its presiding judge that a genuine concession was made.

 

Conclusions

 

23. The reality of this case is that A has been out of education for a long time while a disputed has been conducted over whether the decision of the First-tier Tribunal was made in error of law, two judges having already decided to refuse permission to appeal to the Upper Tribunal. The authority is due to review the statement in the next few weeks. The position will be considered as it is at that time. A’s mother will be entitled to submit a report from Dr B if she so wishes. There will be a new right of appeal to the First-tier Tribunal against the contents of the statement, should A’s mother think that to be appropriate. If I were to grant permission in this case, and allow the appeal (which, after submissions, would perhaps take two or three months), and then refer the matter back to the First-tier Tribunal (which would take even longer to arrange a new hearing) the new hearing would have to consider the position as it is at that time, not as it was in April or September 2009. It is likely that the process would overlap with consideration of the new statement and any new appeal. I really cannot see how this is in the interests of A, or anybody else, or in the interests of justice.

 

24. The Upper Tribunal has the power under section 12(2)(a) of the Tribunals, Courts and Enforcement Act 2007 to decline to set aside a decision of the First-tier Tribunal even where it has made an error of law. Assuming (without finally deciding) that the effect of the exclusion of evidence from Dr B involved the making of an error of law, this is nevertheless a case where that power under section 12(2)(a) would exercised.

 

25. For the above reasons, I refuse permission to appeal to the Upper Tribunal.

 

 

 

H. Levenson

Judge of the Upper Tribunal

14^th July 2010