IN THE UPPER TRIBUNAL Case No S/2292/2009

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Attendances:

For the Appellant: Mr D Lawson of Counsel

For the Respondent: Mr M Mensah of Counsel

Decision:

1. 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 the appeal: rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008 applies.

2. The appeal is allowed. The decision dated 10 July 2009 of the First-tier Tribunal (Health, Education and Social Care Chamber) sitting at Liverpool on 2 July 2009 under reference 09-00339 involved the making of an error of law and is set aside. The case is referred to the First-tier Tribunal (Health, Education and Social Care Chamber) for rehearing before a differently constituted tribunal.

3. I direct that the file be listed for a case management conference before a judge of the First-tier Tribunal as soon as practicable to consider whether further directions are required, including (but without limitation) as to the provision of further evidence to the re-hearing.

REASONS FOR DECISION

1. The original application to the Upper Tribunal had requested a hearing in private. The basic rule is that hearings are to be held in public (rule 37) subject to any direction to the contrary. Much of the business of the Administrative Appeals Chamber of the Upper Tribunal involves matters of personal sensitivity. The circumstances here, though undoubtedly sensitive, were in that context not exceptional and there is in general terms a legitimate public interest in being able to see how the Upper Tribunal functions. I considered that the interests of the child involved were adequately protected by the order at 1. above without additionally ordering that the hearing be in private. This was acceptable to both parties.

2. The appeal is brought by the mother of B, a boy born on 15 August 1998. Although a child with such a date of birth would generally have progressed to Year 7 in September 2009, B has been one year below his chronological year group since starting at school. Thus the tribunal which sat in July 2009 was concerned with provision for B for Year 6 from September 2009.

3. B was originally diagnosed with autistic spectrum disorder and was viewed as being on “the mild to moderate band of the autism spectrum” (FtT 578 – references in these Reasons in this format are to the First-tier Tribunal bundle). In 2008 the diagnosis was amended to one of autism. He has difficulties with language and communication and social understanding, social interaction, cognitive and problem-solving skills and with anxiety and confidence. He has some literary and numeracy difficulties and has motor skills difficulties.

4. The issues outstanding between the parties principally related to whether Part 2 of B’s statement of special educational needs should be amended to refer to an inability to cope in mainstream education; whether B needed an autism specialist environment for the purposes of Part 3 (there were also ancillary issues concerning speech and language therapy provision and the need for a sensory curriculum); and the school to be named in Part 4. The Respondent had named C School, a maintained mainstream school, which B had attended since the beginning of Year 3. B’s parents argued that it was not appropriate for B. They wanted school D to be named, a non-maintained special school for children aged 5 to 19 years with autism. The Respondent accepted that school D could offer appropriate instruction and training, but as in their view school C was also appropriate, the difference in costs meant that C should be named, because of the need for the avoidance of unreasonable public expenditure: cf. Education Act 1996, section 9.

5. The tribunal recorded agreement between the parties on other points and ordered certain other amendments to the statement. It declined to add the wording sought to Part 2; it considered that an autism specialist environment was not required for the purposes of Part 3 and it upheld the naming of C school in part 4. B’s mother applied for permission to appeal on 6 September 2009, which I gave. I held an oral hearing at the Manchester Civil Justice Centre on 20 January 2010 at which B’s mother was represented by Mr Lawson of Counsel and the Respondent local authority by Mr Mensah of Counsel. I am grateful to both for their submissions.

6. B had been attending the C school since September 2006. It appears that for a while, all concerned were pleased with his progress and development, although the papers do contain suggestions that even then, concerns existed over behaviour and a tendency to diarrhoea, similar to those which more definitively emerged later. In any event by early 2008, more focused concerns were surfacing in the minds of B’s parents. They noticed aggressive behaviour towards them on B’s part and noted what they describe as “a recurring theme of headaches, abdominal pains and sickness on his return home from school” (FtT 46). This resulted in a referral in February 2008 from the consultant paediatrician to the Child and Adolescent Mental Health Service (CAMHS), led by a Consultant Child and Adolescent Psychiatrist, Dr O’Malley. Many of the issues before the Upper Tribunal concerned the treatment by the First-tier Tribunal of Dr O’Malley’s evidence, which it is necessary to set out at some length.

7. Before doing so however, it is right to record the process of assessment which was carried out in May and June 2008 in preparation for the 2008 Annual Review of B’s special educational needs by Mr Martin Redmond, an Educational Psychologist – Senior Practitioner (FtT 381-389). B’s parents had raised a number of specific concerns, such as bad behaviour which they felt had been caused by the school’s failure to provide advanced warning of optional SATs tests in maths (a subject B is said to find particularly difficult), and problems of social interaction and gross motor skills. Mr Redmond undertook observations during playtime, assembly and a lesson afterwards and subsequently in a PE lesson. He recorded, among other matters, that:

“During playtime [B] appeared to enjoy his break and the company of the other children, he tended to play with younger pupils. During assembly…he attended appropriately...He displayed a low level of restlessness at times during the assembly, but no more than other pupils…In the lesson… [he] worked on-task successfully alongside other pupils…[He] worked with five other children talking to them at times, presenting as being an integrated member of his class of 27 pupils…”

In PE he found that B was able to complete some activities successfully, while finding other activities too difficult (as did some other children). He was observed to be happy throughout the lesson, presenting as smiling and talking to the teacher, his support worker and to other pupils.

8. Mr Redmond also spoke to staff involved with B and carried out tests. He also administered a Pupil Attitudes to Self and School (PASS) Survey. Under it, B showed a positive attitude (compared with other children from his own age group) towards his teachers and a just below average level of being positive in relation to “General work ethic” but, as Mr Redmond put it:

“Otherwise his profile is concerning reflecting the profile of a pupil who is not happy about himself as a learner within the context of his school”.

Mr Redmond’s professional view was that “the PASS audit is a valid assessment of how B views himself as a learner within the context of school.” Mr Redmond’s recommendation was that further multi-professional investigation with colleagues from CAMHS be undertaken. It was only the limited positive or neutral findings from this survey and not those described by Mr Redmond as “concerning” that found their way into the draft amended statement of SEN (FtT 428), although it does not appear that any point has been taken in relation to this in the proceedings to date.

9. With regard to “Aims of Provision” Mr Redmond commented:

“Provision needs to focus on meeting the needs of a pupil whose predominate ability profile reflects that of a pupil deemed to have moderate learning difficulties. He presents to ‘significant’ others as a pupil and son who is experiencing problems with his communication skills. Advice from the Speech and Language Therapy Service will inform teaching colleagues how best to help understand [B’s] communication and interaction skills, and how to address meeting those needs. Provision also needs to help him achieve progress with learning basic literary skills.

Provision needs to address [B’s] concerning profile of how he views himself as a learner, building on his positive attitude towards his teachers.”

10. With regard to “Facilities and Resources”, Mr Redmond noted:

“[B] will benefit from being taught using factual concrete examples within practice involving, repetition, over-learning, re-enforcement, practice and enrichment (sic). Direct instruction methods of tuition may well help [B] to learn. Reading at an accuracy level of 90% to another for 10-15 minutes on a daily basis using close exercises will help [B] achieve progress with reading accuracy and comprehension skills. Using a method such as SRA’s Morphographic Spelling may help him achieve progress with learning to spell.

Simple interventions can be drawn up with teaching colleagues working with the psychologist to improve [B’s] view of himself as a learner.

Colleagues from the Speech and Language Therapy Service will advise about strategies that can be employed easily in the classroom, to help others improve [B’s] understanding of his environment and to address any concerns around his communication skills.”

11. Reverting to Dr O’Malley’s evidence, the tribunal had before it (FtT348-355) a report signed by him and Mr McDonald, Clinical Nurse Specialist. (If at points in these Reasons I refer to this report as that of Dr O’Malley (alone), I do so in the interests of brevity and intend no disrespect to Mr McDonald.) Dr O’Malley had obtained a history, noting that:

“[B’s parents] feel that the current educational provision is not adequate to manage aspects of his autism and his social behaviours. They went on to say that they have real concerns with regards to the transition into senior school and don’t feel that the feeder schools are appropriate to meet his overall requirements. They expressed the view that he [is] vulnerable in social situations because of his limited understanding of social cues and that this also applies in the school setting. They are of the opinion that he requires support with socialising skills and activities of daily living, which currently the curriculum would not afford him.

His parents report that he is having some general health problems and [B] is displaying psychosomatic symptoms caused by anxiety and frustration. These symptoms include headaches and abdominal pain, going off his food and reducing his fluid intake. He is also having symptoms of flushing of his face and panic type attacks, which usually occur on a Sunday evening when he was due to return to school on Monday, or when other situations have occurred within the school setting, which he does not comment on at the time, but causing anxiety which his parents have experienced when he returns home. Some of the other concerns are that he isolates himself in his bedroom and refuses to talk about his school day, withdrawing from after school and weekend activities. [B] has become increasingly clingy. His parents are very concerned about the possible deterioration with his mental health. [B’s] parents also report his behaviour has become of a physical nature towards them and his granddad. He has outbursts of severe swearing tantrums, specifically when there have been unavoidable routine changes and when he has arrived home from school, anxious, frustrated and upset.”

12. Dr O’Malley also noted the presence of a report from the general practice which in turn refers to headaches, episodes of vomiting and abdominal pain, difficulties with food and fluid intake and so on and indicates that B’s parents are generally unhappy with his current educational provision.

13. On 15 May Dr O’Malley and Mr McDonald carried out an assessment under the Autistic Diagnostic Observational Schedule (“ADOS”). Details are set out in the papers and the conclusion was that:

“the result … indicated that [B] had the full trait of impairments for a diagnosis of autism

1) Impairments of social interaction

2) Impairments of social communication

3) Impairments of social imagination, flexible thinking and imaginative play.”

14. On 22 May 2008 Dr O’Malley observed B and his findings are recorded. “[B] appeared to have a good relationship with the classroom assistant and was supported throughout the course of the lesson. [B] was interacting with other pupils and appeared to be enjoying the lesson. [B] was working independently towards the task he was given.” His observations then continued when B received 1:1 teaching and record discussions with both the class teacher and the classroom assistant about strategies which they had for helping B, particularly around coping with change. In relation to playtime, B was reported, and seen, to have difficulties engaging with other children and to have motor coordination problems.

15. The recommendations of the report by Dr O'Malley and Mr McDonald are as follows:

“We recommend that [B] would require effective intervention strategy built around recognised patterns of strengths and weaknesses.

We share the view with [B’s] parents that he requires an environment to include his deficits in social behaviour (cognitive and behavioural). Social skills and life skills would need to be incorporated into his educational requirements. We also shared a view with parents that [B] would benefit from a curriculum that would include support with independent living.

[B] would require an environment that takes into account individual behavioural support and individual education plans. The main focus of his education should be support with activities of daily living and an individual curriculum aiming to minimise sensory over stimulation and around topics that interest him.

B would also benefit from a high teacher ratio in a specialist-teaching environment for children with autistic spectrum disorder. It was also apparent that he requires having changes introduced gradually and the provision that takes into account his anxieties and stresses, which he exhibits within the home and school environment.”

16. The annual review process went forward on 3 July 2008. As minuted (FtT 494), it appears that the final paragraph quoted in [15] above was the subject of at most limited discussion. At any rate, the CAMHS recommendations were not included in the amended statement. B’s diagnosis was subsequently amended from one of autistic spectrum disorder to autism, but there was no movement in relation to the CAMHS recommendations, even once this was flagged up by B’s parents (FtT437). By November 2008 B’s parents, supported by a firm of “Independent Specialists in Education and Education Law”, were actively seeking to progress a move to school D.

17. On 25 November 2008 B’s parents, with B, saw Dr O’Malley once more. Dr O’Malley conducted tests in mathematics and to assess skills in relation to the pragmatic meaning and comprehension of language. Further recommendations as a result of this included use of a visual timetable as used in TEACCH and Picture Exchange Communication System (PECS) in order to help with aspects of B’s maths, a multi sensory approach to learning and an individualised curriculum. There was also a need for significant differentiation of the language used by the teacher and the rest of the children in the classroom. Finally, Dr O’Malley flagged up that he was yet to compete a sensory profile of B, but that B’s teachers would need specialist training on the triggers that produce both hyperarousal and hypoarousal which prevent B from learning in a school environment.

18. B visited school D towards the end of the Autumn term 2008 for assessment. There is a suggestion (FtT565) that diarrhoea may have been a problem as far back as 2005. However an episode, accompanied by sickness, seems to have started in November 2008 and to have lasted for two weeks. It appears that B may have been off school (presumably for a mixture of sickness absence and the Christmas holidays) until 13 January 2009, when he was ill in the morning while getting ready for school. B’s mother observes at various points in the evidence that the stomach disorders tended to subside once B knew he was not going to school. He was seen at home by Dr Howarth, a GP registrar. Her visit is recorded in a “to whom it may concern letter” dated 21 January 2009 (FtT 535):

“…Over the past seven years [B] has made good progress and his social interaction has improved, however he is still having difficulties particularly with his schooling.

I was called to see B last week following recurrent episodes of diarrhoea and vomiting. He had had three previous similar episodes over the preceding month when he has a sudden onset of diarrhoea and vomiting when he goes to school. He was initially diagnosed with viral gastroenteritis, but on further questioning and examination I suspect there may be a psychological or emotional element to his symptoms. On direct questioning, [B] tells me that he is very unhappy at school, particularly as he has a Teaching Assistant who is a parent of another child at the same school, and he finds this very difficult to cope with. He admits that he has no friends at school and spends his break times alone and also has no real hobbies to speak of either.

On discussion with [B’s] parents, the impression I get is that [B] is withdrawing socially and his school environment is not helping matters. I believe it would be in [B’s] best interest to attend an Autism Specialist school and hope that this letter can be of some support in his case.”

19. On 5 February 2009 Dr Howarth referred B’s case to CAMHS requesting an urgent review (FtT 565). By then a stool sample had been found to be normal, excluding a bacterial cause for the illness. Dr Howarth had met with B’s parents who had indicated to her their “grave concerns” that C school was not meeting B’s educational needs and that they wanted him transferred to D school. It was the parents’ adviser who had suggested that a long-term sick note, combined with home tuition, would be the best option for B. Dr Howarth was aware of the pending tribunal hearing. Dr Howarth had also spoken to the school’s special educational needs co-ordinator (“SENCO”), who had indicated her view that school C was suitable for B, that despite B’s social interaction limitations he did get along well with his younger counterparts and was currently a school play leader, helping with equipment during break times, and was getting on well from an academic point of view. Dr Howarth continued:

“Having only met [B] the once, I have spoken to both [B’s] parents and his school, I feel that there is a definite psychological element to [B’s] current clinical situation, with his recurrent bouts of diarrhoea whilst at school. To this end I have currently signed him off school for the next 4 week to see if this will alleviate his symptoms…I have explained that I cannot sign him off for any longer than this and hope this will give him enough time to be seen by both CAMHs and Dr Bhattacharya [Community Consultant Paediatrician] who can make further decisions regarding his educational needs…I have requested that both the school and parents supply a short report to accompany this referral and they will be forwarded on in due course.”

The school did this (FtT568-570) in a report to which class teacher, teaching assistant and SENCO all contributed, setting out strategies followed and reporting on B’s recent progress.

20. Dr Bhattacharyya is reported as having carried out a full physical examination of B, indicating that he was in good health. He wanted input from CAMHS. Dr O’Malley saw B on or around 19 March (FtT 578). He referred B to Dr Demellweek, Consultant Neuropsychologist, for a neuropsychological profile to be carried out, which he felt would be useful both for the pending tribunal and for the multi-disciplinary assessment at CAMHS required by B’s statement. He concluded that “In the meantime while these assessments are being carried out I have recommended that [B] is unfit for school and should have access to at least 5 hours home tuition…”. The referral letter also stated that “His behaviour at [C School] has been difficult”, a statement hotly contested by the school’s headteacher (FtT 582).

21. Dr Demellweek conducted a series of tests on which he reported (FtT 746-750). At this point, Dr O’Malley was off sick and in his absence, a letter signed by Dr Leech, Consultant and Adolescent Psychiatrist and Ms Flett, Mental Health Practitioner, but, from its content, evidently drafted by the latter, indicated:

“I discussed [B’s] case with Dr Demellweek…and Dr Leech… and due to the stresses [B] has previously been under, we have concluded at this time, [B] is medically unfit to return to school this term.”

22. It does not appear that the multi-disciplinary assessment at CAMHS referred to in [15] was carried out before the tribunal and indeed it appears that, at first sight somewhat surprisingly, it was still outstanding at the beginning of 2010, despite efforts by the Respondents pressing for it to be completed.

23. Although I have not set it out at length, it is right to record that there was a substantial and consistent body of evidence from school C that B’s behaviour, demeanour and progress while at school were satisfactory, that they were aware of his difficulties and had strategies to help him in dealing with them. There was also evidence of relevant staff training. The evidence itself is, of course, a great deal more detailed than this.

24. Before the Upper Tribunal, there were two main areas of complaint:

Firstly, that the First-tier Tribunal misdirected itself, or otherwise had no valid basis, for the approach it took to the evidence of Dr O’Malley about the educational provision which was appropriate for B; and secondly, that as it was part of B’s parents’ contentions before the First-tier Tribunal that C School was inappropriate for B because of its claimed effect on his mental health, the tribunal erred by making insufficient findings of fact.

25. Neither Dr O’Malley nor anyone else from CAMHS gave oral evidence to the tribunal. The tribunal’s decision was in the form customarily in use in cases of the former SENDIST, which has been commented upon in other recent decisions of the Upper Tribunal (DC v LB Ealing [2010] UKUT 10 AAC and PR v Hertfordshire County Council [2009] UKUT 295 AAC). The section on “Facts” in the present case contains a number of recitations of evidence and summaries of contentions, as well as matters which might be facts. Even within that, however, the tribunal’s treatment of Dr O’Malley’s evidence is surprising. It indicates (Decision, paragraph 6) that “B has been seen by the CAMHS team, who had carried out some observation of [B] in the school setting”, which suggests that the tribunal was aware of the report at FtT 348-355 where those observations are referred to, yet they make no mention of the diagnosis of autism (as opposed to an autistic spectrum disorder – see the table at FtT 355) pursuant to the ADOS assessment. A further suggestion that the content of Dr O’Malley’s report was not at the forefront of the tribunal’s mind is to be found where it recites the letter from Dr O’Malley to Dr Demellweek, saying only that “the referral letter noted that [B] had been placed on the mild to moderate end of the autistic spectrum.” The referral letter also mentioned the ADOS result, yet this is not recorded by the tribunal, and reading the referral letter as a whole strongly suggests that the reference to the mild to moderate end of the autistic spectrum was a matter of historical introduction and background. The history of diagnosis, from mild to moderate ASD (on the basis of which B had been receiving educational provision) to a diagnosis of autism is one which one might expect the tribunal to have noted. Nor does the tribunal’s decision refer to the recommendations by Dr O’Malley and Mr McDonald as set out at [15] above, which were key to a matter which was very much in issue, even where it is merely reciting evidence, never mind in terms of making any findings in relation to it or expressing its reasoning.

26. When it came to determining whether there was a need for an autism specialist environment for B for the purposes of Part 3, the tribunal observed as follows (decision, paragraph C3):

“Regarding the need for an autism specialist environment for [B], we concluded that there was not persuasive educational evidence presented to show that this was necessary. The only educational psychology assessment had recently been carried out by Mr Redmond and he had not suggested a specialist setting. No occupational therapy or speech and language therapy report had suggested this was necessary for the delivery of the necessary provision. The main evidence presented was medical. [B] had been certified by Dr O’Malley as being unfit to attend school. We do not consider that this automatically means that [B] should attend a special school. Whilst we would not question any medical diagnosis, it is perhaps regrettable that there had been no suggestions as to how [B] could manage within the school and overcome the aspects that were causing problems. There appears to have been little investigation as to how these alleged difficulties could be addressed. Without persuasive educational evidence of the need for an autism specialist school, we were unable to conclude that this was a necessity for [B]….”

27. Part of the evidence from Dr O’Malley and Mr McDonald (contained within a reasoned report, following tests and observation) was that “B would also benefit from a high teacher ratio in a specialist-teaching environment for children with autistic spectrum disorder”. It was not merely that, as the tribunal stated, Dr O’Malley had certified B as unfit to attend school. For the reasons in [25], I think it is likely that the tribunal failed to have regard to this evidence.

28. If they did have regard to it, then it appears to follow from their reasoning that they did not consider it to be “persuasive educational evidence”. It ias useful to compare the basic structure of an assessment of special educational needs, as set out in the Education (Special Educational Needs) (England) (Consolidation) Regulations 2001 SI 2001/3455. Regulation 7 provides, so far as relevant, that:

“(1) For the purpose of making an assessment an authority shall seek—

(a) advice from the child's parent;

(b) educational advice as provided for in regulation 8;

(c) medical advice from the Primary Care Trust as provided for in regulation 9;

(d) psychological advice as provided for in regulation 10;

(e) advice from the social services authority, and

(f) any other advice which the authority consider appropriate for the purpose of arriving at a satisfactory assessment.

(2) The advice referred to in paragraph (1) shall be written advice relating to—

(a) the educational, medical, psychological or other features of the case (according to the nature of the advice sought) which appear to be relevant to the child's educational needs (including his likely future needs);

(b) how those features could affect the child's educational needs, and

(c) the provision which is appropriate for the child in light of those features of the child's case, whether by way of special educational provision or non-educational provision, but not relating to any matter which is required to be specified in a statement by virtue of section 324(4)(b).”

29. It can be seen from paragraph (1) of regulation 7 that a wide variety of types of advice are considered potentially relevant to making an assessment; from sub-paragraph (2)(a), that all are capable of indicating factors which are “relevant to the child’s educational needs” and which could affect the child’s educational needs and, from sub-paragraph (2)(c), the appropriate provision. It follows from this that even if it may be said that the description of B’s educational needs and the recommendations as to the educational provision put forward by Dr O’Malley and Mr McDonald had, by virtue of their source, a “medical” nature, they were not thereby in any sense disentitled from proper consideration by the tribunal.

30. For the reasons given in [25], I consider that it is more likely that the tribunal overlooked the content of advice given by Dr O’Malley rather than that, being aware of it, they erred in their approach to weighing it. In any event, paragraph C3 of the decision does not make it sufficiently clear for the parents of B to know why, despite the written evidence provided by Dr O’Malley’s report, they lost. Further, if I am wrong in the conclusions I have reached about their approach to Dr O’Malley’s evidence, I would consider that this part of the Reasons failed sufficiently to enable the Upper Tribunal to see whether any question of law arose in relation to the First-tier Tribunal’s approach to Dr O’Malley’s evidence. Thus, the reasons do not meet the test in Meek v Birmingham City Council [1987] IRLR 250, as endorsed in its application to the special educational needs jurisdiction by the Court of Appeal in H v East Sussex County Council [2009] EWCA Civ 249.

31. There may be things which the First-tier Tribunal might have said, had it addressed Dr O’Malley’s recommendations, but it is not in my view for the Upper Tribunal to attempt to construct reasons and make findings which the tribunal might have given or made, had it done so.

32. The errors of law identified in paragraphs 29 and 30 are sufficient for the decision of the First-tier Tribunal to be set aside. It would not be appropriate in this case for a single Upper Tribunal judge, sitting without colleagues with specialist expertise such as would be found at First-tier level and without hearing oral evidence, to substitute a decision and the case will have to be remitted for re-hearing. This makes it desirable that I should deal here with the difficult issues surrounding the other main area of complaint in relation to the First-tier Tribunal’s decision, namely whether its fact-finding was sufficient. However, it is possible that addressing the shortcomings in relation to the tribunal’s approach to Dr O’Malley’s evidence insofar as it bore on determining B’s educational needs and hence the provision required to meet them for the purposes of Part 3 of the Statement may (I express no view) have the effect of rendering irrelevant much of what follows with regard to fact-finding for the purposes of Part 4, as, it is only once the educational provision has been identified that one can specify the institution or type of institution which is appropriate to provide it: see A v SENDIST and LB Barnet [2003] EWHC 338 (Admin).

33. It was part of B’s mother’s case, as put forward by her representative at the First-tier Tribunal, that C school was not an option because of the stress on B of being there. (D school, it was said, was an option, so the issue was not put forward on the basis of stress associated with school attendance generally.)

34. The appeal being about (among other matters) “the special educational provision specified in the statement (including the name of a school so specified)” (1996 Act, section 326(1A)(b)), the issue became whether C school, specified by the Respondent, was “appropriate for the child” (section 324 (4)(b)).

35. While the duty is to select an “appropriate school” and “there is nothing in the statutory scheme which calls upon the local education authority to specify the optimum available provision…”: R v Cheshire CC ex p C [1998] ELR 66 at 78, assistance in a correct understanding of the term “appropriate” may be derived from the observations of Thorpe LJ in C v Buckinghamshire County Council [1999] ELR 179 at 189:

“…[I]t is clear from section 324(4)(a) of the Education Act 1996 that the LEA has a duty to ensure that a child with special educational needs is placed at a school that is ‘appropriate’. It is not enough for the school to be merely adequate. To determine if the school is appropriate an assessment must be made both of what it offers and what the child needs. Unless what the school offers matches what the child needs it is unlikely to be appropriate. The assessment of the child’s needs necessarily imports elements of a welfare judgment…”

Mr Mensah did not seek to argue otherwise.

36. The findings the tribunal was called upon to make were those relevant to whether C school was “appropriate” in the section 324 sense or not. In applying the section 324 test, as in other respects, tribunals “cannot proceed on a purely adversarial basis, but have a duty to act inquisitorially when the occasion arises by making sure they have the necessary basic information on which to decide the appeal before them, rather than rely on evidence adduced by the parties” (per Scott Baker J in W v Gloucestershire County Council [2001] EWHC Admin 481, cited with approval in R ota J v SENDIST and LB Brent [2005] EWHC 3315 (Admin)).

37. I am not persuaded that the tribunal was required to make a definitive finding on whether school C was the cause of the stress or not, if the evidence did not allow it to do so. I do not accept that the medical evidence pointed unequivocally to this conclusion, which some of the earlier submissions to the Upper Tribunal appeared to assume. However (without in any way prejudging the findings which the tribunal to which this case is remitted will have to make), it seems to me that even if a tribunal were merely to find that a pupil, while attending or being expected to attend a school, experienced symptoms (from whatever cause) consistent with stress sufficient to be of evident concern to his medical advisers, it would need to be able to form a conclusion that the school proposed was nonetheless “appropriate”. This implies a need to consider the impact, if any, of attendance on the child and how, if at all, the condition can be managed in such an environment and (since the circumstances are unlikely to be entirely fixed, or necessarily clear-cut) monitored.

38. To press for a finding, as those representing B’s parents have done, that a school is the cause of a pupil’s stress is in my view to invite the tribunal to paint with an unhelpfully broad brush. In the event that undue stress were to be found to result from particular aspects of attendance at school, it may be either that the factor(s) causing the stress can be removed or worked round, or that the pupil can be given extra assistance to cope with the difficulty. (In the present case, there are quite a number of specific aspects of school life which it is suggested in the evidence are stressors for B. I do have in mind, though, the possibility that the specific aspects identified are merely the vehicle through which a child expresses the effect upon him of his school environment more generally, but that will be a matter for the expert tribunal to determine in the exercise of its fact-finding role.) If on the other hand such remedial or supporting measures cannot be taken and the stressors are an unavoidable part of attending a given school, then that in my view would be highly relevant to determining whether a proposed school was “appropriate”. While therefore it may not be appropriate or even possible to say merely that that school C is the cause of B’s stress, that does not mean that what is known about B’s stress should not be taken into account in deciding appropriate educational provision for him and, indeed, makes it all the more important that it is done, and in some detail.

39. I consider that a much more detailed and overt fact-finding process is required. When and in what circumstances did B exhibit unusual behaviour patterns? When and in what circumstances did he exhibit physical symptoms? What else was going on at the time? What alternative explanations are there and what are the facts in relation to them? When did the unusual behaviour and’/or physical symptoms stop? Again, in what circumstances? How is he most of the time at school and at home? What are said by B and those in contact with him to be the stressors? What are the facts in relation to them? What, if anything, can be done in relation to the factors that may trigger stress? What is known about B’s morale and self-esteem in the school context? What can be done to help with this? Needless to say, this is not intended as an exhaustive or prescriptive list. The central question of whether school C is “appropriate” can only be resolved by reference to that which is knowable, directly or by inference, and the First-tier Tribunal will be able to bring to bear its expertise in identifying ways of breaking down the central issue into knowable matters.

40. It is instructive – as an illustration - to note the decision in R ota B v The Vale of Glamorgan County Borough Council [2001] ELR 529, where a 16 year old suffering from mental ill-health refused to attend the specified school and the appeal was allowed because of the failure to address how, notwithstanding her refusal, it concluded that the school could provide for her needs.

41. The tribunal itself was alive to the difficulties, noting that “it is perhaps regrettable that there had been no suggestions as to how [B] could manage within the school and overcome the aspects that were causing problems. There appears to have been little investigation as to how these alleged difficulties could be addressed.” I agree (while noting that it is not in any event clear whether the tribunal found there to be problems, and if so, what). However, if the tribunal had felt that it had insufficient evidence to enable it, having made findings as to the problems, to determine how they could be addressed, drawing on its own expertise where appropriate, then in my view the inquisitorial nature of the jurisdiction would have required it to adjourn to allow further evidence to be produced.

42.It follows from what I have said in [33] to [41] that I do consider that the First-tier Tribunal failed to make sufficient findings to enable it to conclude whether or not C school was appropriate for B.

43. I should record that both Counsel addressed me as to the observations of Baroness Hale in AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49, where she said:

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

I am not convinced that these observations are apt to impose an additional need for restraint on the Upper Tribunal, established as part of the structure created by the Tribunals, Courts and Enforcement Act 2007, going beyond what is integral in its jurisdiction in relation to appeals being confined to appeals on a point of law in any event.

44. No inference should be drawn from the fact that this appeal has succeeded on a point of law as to the eventual outcome, which is entirely a matter for the tribunal to which this case is now remitted.

CG Ward

Judge of the Upper Tribunal

3 February 2010

(Typing error corrected under rule 42 - 4 February 2010)