Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. HS/962/2010

ADMINISTRATIVE APPEALS CHAMBER

Before His Honour Judge David Pearl sitting as a Judge of the Upper Tribunal

Attendances:

For the Appellant: Ms A Bicarregui of Counsel

For the Respondent Mr R Holland of Counsel

Decision: Permission to appeal is granted, and the substantive appeal is dismissed.

REASONS FOR DECISION

1. This is a renewed application by the Local Authority for permission to appeal the decision of the First-tier Tribunal which is dated 10^th March 2010.
2. The first matter that I need to decide is whether to grant permission. I have decided that the appropriate approach to take in this case is as suggested by Sullivan J (as he then was) in the case of The Queen on the Application of Vetterlein v Hampshire County Council and Hampshire Waste Services Ltd [2001] EWHC Admin 560. In that case, Sullivan J said:

"…I am satisfied that all the arguments open to the claimants on matters of fact and law have been placed before the Court. In the circumstances it would be wholly artificial to consider the by now academic question: is the claimant's case arguable? …I am in a position to determine the substantive application for judicial review on its merits."

3. Applying this approach in the current context of a renewed application for permission to appeal, I therefore grant permission and go on to consider whether there has been an error of law.
4. The case concerns the decision taken by the Local Authority to place M (who is now 16 years of age) at the Royal National College for the Blind (RNCB) rather than at West of England School and College for people with little or no sight (WESC).
5. In their successful appeal to the First-tier Tribunal, the parents maintained before the Tribunal that M would not be appropriately placed in RNCB. They said that there were insufficient students of a similar age to M and too many older students. They said also that there is inadequate night supervision in view of M’s particular needs. The parents relied very heavily on M’s strongly held views regarding RNCB, and therefore they asked the First-tier Tribunal to allow their appeal and to have WESC named as the school in Part 4 of the Statement.
6. It would seem that in argument before the First-tier Tribunal, the Local Authority did not dispute that WESC would be an appropriate placement for M, but that for her to attend there, there would be an unreasonable public expenditure. The annual cost of educating M at RNCB had been calculated by the college at £42,303 and the annual cost at WESC was calculated by WESC at £73,974.
7. The First-tier Tribunal heard evidence from M, and her evidence is summarised in paragraph 11 of its Decision:

“M told us that in December 2008 her vision deteriorated quite quickly and a lot. She found it frightening and scary. She realised she could not do some of the things she used to do like reading text messages. She found it difficult to follow the programmes on TV and had to practice how to make tea or manage in shops. She couldn’t see bright colours. She was worried her vision would change again and how this would affect her future. She said that when her vision changed she lost self-esteem, developed obsessive compulsive disorder (OCD) and began to have panic attacks. When she thought about RNCB it felt she was being thrown in the deep end of a swimming pool compared to WESC which felt like getting in the shallow end. RNCB felt too big and scary. She said she was not going to RNCB and when asked by Ms Hall [the Assistant Director of RNCB] whether she would come and try it out, she said that she would not.”

8. M’s counsellor (Mr Best) also gave evidence before the First-Tier Tribunal, and he told the Tribunal that he was concerned that at the RNCB, there would not be enough support in the evenings and at night time to facilitate the coping strategies that M needed. He said that M tended to relate to young people of 16 or less.
9. In arriving at its conclusion, the Tribunal said that it had carefully considered the written evidence submitted in advance, as well as the evidence presented at the hearing. The witnesses, besides M herself, were Mr Best (M’s counsellor), Ms S Joseph (an educational psychologist), Mr Ellis (the head teacher of WESC), Ms Hall (Assistant Director of RNCB), and Ms Lynas (an educational psychologist).
10. The Tribunal identified the issue before it in this way: “Since there was a substantial difference in cost between the two placements, we needed to consider whether RNCB was an appropriate placement for Maria.” In paragraph E of its decision, the Tribunal concluded that it was satisfied, having considered the evidence of Ms Hall, that the RNCB could provide the core academic skills as well as additional needs arising from M’s visual impairment, such as Braille, mobility and independent living skills. The Tribunal looked also at the concerns expressed by Mr Best about night time support, and concluded, again on the basis of Ms Hall’s evidence, that RNCB could provide the night time support. In particular, the Tribunal stated that RNCB had experience of OCD and it could access outside support if further professional help were needed. Counselling was also available.
11. The next two paragraphs (F and G) contain the reasons why, notwithstanding its conclusions in paragraph E, it decided that RNCB was not an appropriate placement. As these two paragraphs are at the heart of Ms Bicarregui’s challenge, it is important to quote them in full.

“F. Mr and Mrs D [the parents] and M said that the student group at RNCB was not suitable. There were only 6 pupils aged 16 compared to 11 at WESC. However one third of the intake at WESC were children with more complex learning needs than M reducing the cohort of children of similar ability and needs from whom M would be likely to find friendship to a smaller group not substantially different from RNBC. Ms Hall had indicated that if M preferred learning with a similar age group at RNCB this could be arranged. Residential accommodation at RNCB was arranged separately for the 16-18 age group whereas there was a possibility that the ages would be mixed at WESC. RNCB was larger overall with a total of 149 learners compared to 63 at WESC. On the other hand attendance during the day at Bicton College would put M in a busy FE college with a wide age range. Of the 149 students at RNCB 43 were over the age of 23. By looking at the student profile alone we would not have concluded that RNCB provided an inappropriate environment. This was however the area of concern that M had expressed and we needed to consider what weight should be given to her views.

G. [Counsel for the Local Authority] had addressed us on the issues of M’s views. She had stated that although we must have regard to M’s views they couldn’t trump everything else. We agreed that it was for the tribunal standing in the shoes of the LEA to make the decision on whether RNCB was an appropriate placement for M on the basis of all the evidence and that we were not bound by M’s views. We considered however that in this case we needed to give considerable weight to M’s views for the following reasons. M was now 16 and at an age where young people’s views are generally respected. She had formed a view that RNCB was too large and too adult for her and her views had some support from the facts in that RNCB was larger and the intake included 43 people over the age of 23. M had formed these views in the context of her deteriorating vision and her vulnerable emotional state. She had gone so far as to say she would not attend RCNB. While the latter is not an attractive argument, we had seen M give evidence and formed a view of her character and determination and believed that it would be impossible to persuade M to attend a residential placement at RNCB against her will”.

12. In addition to these reasons, at paragraph H, the Tribunal added the observation that RNCB had not prioritised vocational training, and that it might be postponed until the third year and was by no means definite even then. The Tribunal agreed with Ms Lynas that animal care courses were important for her self esteem and possibly also her future employment, and that for that reason as well, it did not consider RNCB to be an appropriate placement.
13. The Local Authority challenges the decision of the First-Tier Tribunal and seeks to argue that there is an error of law for two reasons. First, it is submitted that the Tribunal erred in law by treating M’s views as a veto “in circumstances where it had found that there was no rational basis for those views.” Secondly, it is submitted that the conclusion that RNCB was not suitable because it had not prioritised vocational training for M constitutes a further error of law.
14. As to the first ground of appeal, Ms Bicarregui submits that it is clear from paragraphs E, F and G, that the only reason that the Tribunal held that the Local Authority’s choice of school was unsuitable was because M had stated emphatically that she would not attend that school. It is submitted that as the Tribunal had held that there was no rational basis for the concerns expressed by M, her parents and her counsellor, the Tribunal was giving effect to her strongly held but irrational views, and to that extent, although it expressly declared otherwise, M’s views acted as a veto.
15. Ms Bicarregui puts the submission in this way in her skeleton argument.

“M’s views acted as a veto: the Tribunal had concluded that the concerns raised about the suitability of the RNCB were without foundation but on the basis of M’s refusal to attend concluded that the RNCB was not suitable. Such a conclusion was perverse in the particular circumstances of this case.”

16. My attention has been drawn by Ms Bicarregui to C v Buckinghamshire County Council and the Special Educational Needs Tribunal [1999] ELR 179. Thorpe LJ (in agreement with Sedley LJ and Stuart-Smith LJ) considers the relevance of the welfare consideration to the function of the LEA and the Tribunal under the Education Act 1996. He states expressly that the duty of an LEA in carrying out its statutory function and duty in relation to a child with special educational needs is distinct from the function and duty under the Children Act 1989. He states that the welfare of the child is not the paramount consideration.
17. Thorpe LJ goes onto say however that the assessment of a child’s needs necessarily imports elements of a welfare judgement. He states:

“If there are two schools offering facilities and standards that exceed the test of adequacy, then I would hope that ordinarily speaking the better would be judged appropriate, assuming no mismatch between specific facilities and specific needs. Parental preference obviously has a part to play in the assessment of what is appropriate. In a case where there appears to be parity of cost and parity of facilities, parental preference may be the decisive factor.”

18. In this case, of course, there is no parity of cost, and the Tribunal expressly state that all of the concerns of the parents, bar two, cannot be substantiated. The two concerns are first the position taken by M herself, and secondly, the issues relating to vocational courses.
19. It is my view that section 9 of the Education Act 1996 creates a limiting factor on the principle that children are to be educated according to the wishes of the parents. However, it will always be a matter of fact and degree whether any increase in costs is so substantial as to be incompatible with the efficient use of resources.
20. In this case, the Tribunal decided, in effect, that a placement at WESC was not incompatible with the efficient use of resources.
21. In refusing permission to appeal to the Upper Tribunal, the First Tier Tribunal Judge said as follows:

“One part of the evidence was M’s views. These were more than a matter of preference. She was to be the subject matter of the education in question and she had very strong subjective views about the placement. She had formed these views as the decision states in the context of her deteriorating vision and vulnerable emotional state. The Tribunal decision in paragraph G shows that it did not simply follow M’s views but considered whether, despite what she had said, if the Tribunal ordered the lower cost placement M would attend. It concluded that she would not attend and this made the lower cost option not a viable one. The Tribunal therefore concluded that to name WESC would not be unreasonable expenditure. The alternative would be for M to be without education and for special educational needs to be unmet.”

22. A reading of paragraphs E, F and G do not in my view give rise to an error of law. The Tribunal did not allow M’s views to act as a veto, and indeed the Tribunal stated in express terms that they were not bound by M’s views. I agree with Judge Wikeley who when refusing permission on the papers states:

“It was a question of the weight to be attached, and the Tribunal explained why they attached ‘considerable weight’ to her views. In my judgement that was a classic ‘jury question’ for the First-tier Tribunal, which obviously had the advantage of seeing and hearing from M at first hand and putting her firmly held views in the wider context of all the evidence about other relevant factors. M is 16 and as the Tribunal noted a young person’s views will usually carry more weight as they grow older.”

23. The second ground of appeal is likewise not substantiated. Both the First-tier Tribunal Judge and Judge Wikeley state that this ground is no more than an attempt to elevate a difference of opinion (relating to vocational training and its availability at RNCB) over the interpretation of evidence into an error of law.
24. Ms Bocarregui makes a submission before me that she says, correctly, was not addressed by Judge Wikeley. She states that the School named in Part 4 of the Statement must be able to make all the educational provision set out in Part 3 of the statement, or it will not be suitable. She says that the need for M to have vocational training is not set out in Part 3 of the Statement, and accordingly it is an error of law to conclude that RCNB is not suitable on the basis of an element which is not part of the Part 3 provision.

“Part 3 does not contain any reference to vocational needs or an equine care course. Part 4 flows from Part 3. In those circumstances it was an error for the Tribunal to conclude that the RNCB was unsuitable on the basis that it had not adequately prioritised vocational training for M.”

25. I do not agree with this submission. Although there may be situations where vocational training is set out in some specificity in Part 3, this is not necessarily always the case. The Tribunal was entitled to form a conclusion that RNCB was not appropriate on the basis of a concern relating to vocational training, which the Tribunal considered important for M’s self-esteem and possibly future employment. In any event, as apparent from paragraph H, this reason for considering RNCB not an appropriate placement, was very much an ‘additional’ reason and was based on an analysis of the factual evidence presented to it by Ms Hall.
26. I reject also any submission that the findings of the Tribunal were perverse or irrational. I agree with Judge Wikeley that the high threshold for such a claim is simply not reached in this case. It is important to remind oneself of the dictum of Baroness Hale in Secretary of State for the Home Department v AH (Sudan) and others [2008] 1 AC 678 where she said:

“...this is an expert Tribunal charged with administering a complex area of law in challenging circumstances...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. “

27. This dictum, in my opinion, is particularly relevant in the context of the present case. The Tribunal had an opportunity of hearing the evidence given by live witnesses, including M herself, and the Tribunal has set out very clearly indeed why it has arrived at the conclusion that it has, based on the evidence. There is absolutely no basis for submitting that this conclusion was perverse or irrational.
28. I turn finally to the wider issues that Ms Bicarregui has asked me to address. She says that the Council is concerned about the potential implications of the Tribunal’s decision. She states that there is a public interest in the Upper Tribunal providing guidance for Local Authorities and First-tier Tribunals when faced with issues similar to the present case.
29. I have decided that it would not be appropriate for me to deal with these wider issues in the context of the current case, except in so far as the comments I express in following paragraphs.
30. It is my view that each case will often turn on its own facts. The views of the child will not act as a veto to all other considerations, but the older the child, the more important it will be for the child’s views to be given more weight. The Code of Practice and the UN Convention on the Rights of the Child (both referred to by Judge Wikeley) both demonstrate the importance of giving due weight to the views of the child in accordance with the age and maturity of the child.
31. Sullivan J in CB v London Borough of Merton and Special Educational Needs Tribunal [2002] EWHC 877 (Admin) makes the following statement:

“The Tribunal heard evidence from TB himself. His wishes were relevant and were taken into account by the Tribunal. ...Whilst TB’s wishes were undoubtedly relevant, they could not be regarded as an absolute right of veto. It was for the Tribunal to decide whether or not they should be regarded as determinative of the matter.”

32. I can hardly improve on this statement by Sullivan J. TB was just under 14 years of age, and the facts of that case were perhaps a little unusual in that allowing TB’s views to prevail would have meant that TB would have received no schooling at all.
33. But as a general proposition, it must follow that a local authority would be making an error of law if it totally disregarded the express wishes of a child. Likewise, it would be making an error of law if it followed the views of the child regardless of any countervailing indications that pointed to a different conclusion. It must always be a question of the weight that is to be attached to the views of the child. The older the child and the more mature the child, the greater the weight that should be attached to those views.

Signed on the original

His Honour Judge David Pearl

Dated: 28^th September 2010.