Upper Tribunal (Administrative Appeals Chamber)

Decision of the Upper Tribunal
(Administrative Appeals Chamber)

As the decision of the First-tier Tribunal under reference 10-00895 involved the making of an error in point of law, PERMISSION IS GIVEN to appeal against the decision, it is SET ASIDE under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007 and the case is REMITTED to the tribunal for rehearing by a differently constituted panel.

DIRECTIONS:

A.          The tribunal must undertake a complete reconsideration of the issues that are raised by the appeal.

B.          The First-tier Tribunal will give directions on the production of evidence and the identification of issue in advance of the rehearing.

Reasons for Decision

A.          Introduction

1.           This case concerns Lara’s special educational needs. As I have dealt only with issues of law, it is not necessary to set out those needs or the background to the case in any detail. I refer to those matters only in so far as it is necessary to deal with the legal issues.

2.           Lara’s parents are the appellants before the Upper Tribunal; I call them ‘the parents’. The respondents are her local education authority; I call it ‘the authority’.

3.           The case came before me on 25 October 2010 as an application for permission to appeal. The parents were represented by Mr John McKendrick of counsel. The authority was represented by Mr Jack Anderson of counsel. I am grateful to the parties and their representatives for agreeing to a hearing on short notice. I am also grateful to counsel for their written and oral arguments. Counsel agreed, subject to limited qualifications, that if I were to give permission, their submissions could stand on the appeal.

B.          The case before the First-tier Tribunal

4.           The appeal to the First-tier Tribunal was decided on 8 July 2010. The parents applied to that tribunal for permission to appeal. This was refused on 19 August 2010. In doing so, the judge made a number of comments that added to, or clarified, the tribunal’s reasons. Inevitably, counsel have referred to those reasons. I have not referred to them or relied on them in any way. The tribunal’s reasons are set out in the written reasons dated 20 July 2010. The tribunal has a limited power to correct those reasons, but that has not been exercised. I am not concerned with the judge’s additional explanation. Her reasons for refusing permission are not under review: CIS 4772/00 at [2]-[11]. And the Court of Appeal has said that they may not be used to show that a point of law arises from the decision: Albion Water Ltd v Dŵr Cymru Cyf [2009] 2 All ER 279 at [67].

C.          Evidence (peer group) ground

5.           I deal with this ground of appeal first, as it is the only ground on which I have given permission.

6.           The time has come for Lara to move to secondary education. The authority made a statement of her special educational needs in anticipation of that move. It stated that Lara’s educational needs could be met as a day pupil at P School. The parents exercised their right of appeal to the First-tier Tribunal. They argued that, for a number of reasons, Lara required what is called a waking day curriculum that justified a residential placement at MH School. Lara would return home at the weekends and for school holidays.

7.           One aspect of the parents’ argument was that Lara required a suitable peer group for socialising and communicating. As I understand it, the authority agreed. The issue for the tribunal to decide was whether there would be a suitable peer group for Lara at P School. Her parents argued that there would not. The authority argued that there would.

8.           The tribunal set out the evidence on the composition of P School as a whole, as then known, in paragraph 7 of its facts. In doing so, it set out details of the cognitive abilities of the two confirmed pupils who would be in Lara’s year. It referred to the need for a peer group in paragraphs C and E of its conclusions and reasons. The former was in the context of the waking day curriculum issue. The latter merely recorded that the problem of peer group was the same for both P School and for MH School, ‘so we regard this as not being evidence for either placement.’

Arguments

9.           Mr McKendrick argued that the tribunal either overlooked or misunderstood the evidence on this issue and, in the event, failed to deal with it.

10.        Mr Anderson argued that the tribunal was aware of the issue and the evidence, gave detailed consideration to Lara’s speech, language and social interaction skills, and dealt sufficiently with the issue without the need for reciting all the relevant evidence.

11.        I was given witness statements from Lara’s mother and from Lesley Wood. Mr Anderson did not accept their accuracy on the evidence on peer group that was before the tribunal. I have not taken them into account in making my decision.

Analysis

12.        I give permission and allow the appeal on this ground.

13.        The issue for the tribunal was whether P School would meet Lara’s reasonable educational needs in September 2010, when she would transfer to secondary education. That presents an obvious difficulty in that the composition of the school was not known when the statement was written or, perhaps, when the hearing took place. The tribunal had to decide on the balance of probabilities whether the school would be suitable at the date of transfer.

14.        I have read the tribunal’s reasons several times in the course of preparing for the hearing, conducting the hearing and writing this decision. The tribunal does not say how it dealt with the peer group issue. Nor have I been able to identify its process of reasoning. I have not looked at the tribunal’s reasons in isolation. I have looked at the evidence to which I have been referred, but that has not made me any the wiser on the tribunal’s reasoning. The parents’ argument was not, as far as I can judge, one that could simply be dismissed as having no merit. The argument required at least an explanation of why the tribunal rejected it and perhaps some analysis also. Both are missing.  

15.        Given that the parties both accepted that MH School was suitable, it may have been a permissible approach to argue from what was accepted to what was unknown. In other words, the tribunal may have been able to argue: (a) the peer group at MH School is not significantly different from that at P School; (b) the parents accept that MH School is suitable; (c) therefore, P School must also be suitable. However, that method of argument would require the tribunal to analyse the provision at each school to show how and why the schools would be in comparable positions as at September 2010. The tribunal did not do that.

16.        That is why I have given permission to appeal and set aside the tribunal’s decision. As a courtesy to counsel and the parties, I now deal with the other grounds.

D.          The determination ground

17.        The parents argued that Lara required a waking day curriculum at MH School. The tribunal rejected that argument. It devoted a page and a half of its reasons to explaining why. Those reasons included: (i) a statement of the relevant caselaw; (ii) a reference to the code of practice; and (iii) comments on reports of the four experts relied on by the parents.

Arguments

18.        Mr McKendrick argued that the tribunal failed to deal with the issue of whether Lara needed an extended day at P School on two evenings a week. The tribunal did not deal expressly with this issue, and had included the cost for those evenings in its assessment of travel costs. He argued that the authority’s case summary had accepted that these sessions were required.

19.        Mr Anderson argued that it was clear that the tribunal found that normal hours provision was adequate to meet Lara’s needs. The authority’s case was not that additional sessions were required.

Analysis

20.        There were three possibilities. The tribunal might have decided that: (i) P School was sufficient to meet Lara’s needs; (ii) P School could only meet those needs with the additional evening sessions; or (iii) only MH School could meet her needs. The parents argued for (iii). The authority argued for (i).

21.        I do not accept Mr McKendrick’s argument that the authority’s argued for (ii). He relied on this passage:

‘P… School offers an extensive range of extended day school programmes to reinforce life skills taught in the classroom that [the parents] may wish to consider for Lara.

The Local Authority does not support [their] view that Lara requires a waking day curriculum, in particular their assertion that Lara needs such a curriculum to ensure that skills she has acquired are carried across and incorporated into her daily timetable. This is not the correct test for determining whether a child requires a waking day curriculum (Hampshire County Council v JP [2009] UKUT 239). The Local Authority is of the view that the provision available at P… School and its additional extended day provision, is able to meet Lara’s needs.’

Mr McKendrick’s argument would have no basis if it were not for the final sentence. Taken on its own, that sentence supports his argument. However, it has to be read in context. It is clear from the first sentence that the additional sessions would be optional for the parents to consider. I read the final sentence as an infelicitously expressed attempt to summarise what the author had just said.

22.        Accordingly, the tribunal was faced with parties arguing for (i) and (iii), but not for (ii). It was, of course, still entitled to adopt that option, but it was not required to explain why it did not adopt an option that neither party sought.

23.        It is correct that the tribunal included the costs of the two evening sessions at P School in its costings. However, it is clear from its use of conditional language that they were not part of Lara’s educational needs. It is possible, but ultimately fruitless, to speculate on why the tribunal included those sessions in its costs. However, it is clear that it did so only conditionally.

E.          The transport ground

24.        Lara would have to travel to P School by taxi or minibus. She would share the journey with two children. I was told that one is male and the other female, although the tribunal may have been told that they were both male. One has a hearing impairment and the other is on the autistic spectrum. There would be an escort. The journey would be an hour each way, which could be tiring. However, the parents had three concerns. First, Lara is more comfortable with girls who are a little younger than herself. Second, she is particularly sensitive to being touched and has experienced problems with a pupil who has autism. Third, she would wish to communicate with her fellow pupils, but her difficulties and theirs would make this difficult.

Arguments

25.        Mr McKendrick argued that the tribunal dealt with the length of the journey, but failed to deal with its suitability. He relied on the judicial review case of R v Hereford and Worcester County Council, ex parte P [1992] 2 FLR 207. McCullough J there said (at page:

‘It is implicit in s 55(1) [of the Education Act 1944] that the LEA is under a duty to make such arrangements as it considers necessary for a child to reach school without undue stress, strain or difficulty such as would prevent him from benefiting from the education the school has to offer, just as it must be to make such arrangements as it considers necessary for him to travel in safety and in reasonable comfort.’

26.        Mr Anderson accepted that the tribunal had not expressly dealt with suitability, but argued that: (i) the tribunal had the evidence and clearly accepted that the transport arrangements were suitability; and (ii) it could not have come to any other conclusion.

Analysis

27.        Transport is not an educational need. However, it has to be taken into account. A placement cannot be appropriate if the authority cannot provide suitable transport to the school.

28.        The Hereford and Worcester case was a judicial review and the issue was whether the local education authority’s provision was reasonable in exercise of its powers. On appeal, the First-tier Tribunal is not concerned with whether the authority’s proposed arrangements were within the range of reasonableness; it had to decide whether or not they were suitable. I also accept that stress, safety and comfort are not necessarily the only factors that might make a journey unsuitable.

29.        I accept that the tribunal knew of the parents concerns and must have nonetheless considered the transport arrangement suitable. The issue is whether the evidence was sufficient to require the tribunal to deal with the issue. The length of the journey was not significantly different from Lara’s journey to her current school. There had to be something additional that would make the journey to P School inappropriate. The parents had, in essence, two further concerns. One was the lack of socialisation and communication that would be possible between Lara and her fellow pupils on their daily journeys. This is an inevitable risk when children with different special educational needs travel together. However, the journey is not part of the children’s education. It does not have to provide an opportunity to meet social or educational needs. It is merely a means of getting the children from their homes to their school. McCullough J focused on the avoidance of detrimental effects. I consider that that is the proper focus, whether on judicial review or on appeal. The parents’ other concern was the way that the other pupils might behave towards Lara. That was a concern about the pupil on the autistic spectrum. I accept that Lara had experienced problems with a pupil who had autism. However, not all children with autism demonstrate the same behaviour or problems. The evidence was not sufficient to show that a child with autism would, or would be likely to, cause problems for Lara. Any such problems could be avoided by changing the seating arrangements. 

F.           The costs ground

30.        The tribunal made a complete dog’s breakfast of the way that it set out the comparative costs of P School and MH School. It is best to start again.

31.        For convenience, I have disregarded the amount of £500 for a laptop. That cost is the same whichever school Lara attends.

32.        For MH School, the costs are £42,296 (fees) and £2,692 (occupational therapy). The total cost is £44,988. There are no other costs. There is no need to include £2,692 for specialist literacy as Lara does not have dyslexia. Nor is there any need to include £6,449 for transport, as the marginal cost of transport would be nil.

33.        For P School, the costs are £27,975 (fees). There are no other costs. There is no need to include transport, as the marginal cost of transport shared with the two other pupils would be nil. There is no need to include the costs associated with the two evening sessions, as they were not part of Lara’s educational needs.

34.        The difference in costs is £17,013. That raises the issue: was it inevitable that the tribunal would decide that that amount would be unreasonable public expenditure?  Mr McKendrick argued that the tribunal should have undertaken a balancing exercise between the merits and costs of each school and the parents’ preference for MH School. He referred me to Wardle-Heron v London Borough of Newham and the Special Educational Needs Tribunal [2004] ELR 68. The tribunal there wrongly calculated the costs of the two schools. As a result, it believed that it was comparing costs of £5,641 and £18,375, whereas the correct comparison was of £12,286 and £18,375. James Goudie QC said:

‘16. … Although this is still significantly less than the cost of Fairley House, the scale of the different is very much less dramatic. So, in striking the balance between on the one hand parental preference and the advantage of Fairley House, and on the other hand, a significantly erroneous cost comparison was used. I cannot possibly say that the result of striking the necessary balance would inevitably, or even probably, have been the same if the correct test comparison had been made.'

35.        The difference in that case was relatively small in absolute terms and just under 50% again of the cost of the preferred school. In contrast, the sum in this case is significantly larger in absolute in absolute terms and just over 60% again of the cost of P School. This is not just a matter of comparing amounts and percentage differences. The issue is whether, in the context of the case as a whole, a tribunal, properly instructed and acting reasonably, could come to the decision that the parents’ preference should prevail notwithstanding the difference in cost. If not, any error by the tribunal could not have affected the outcome. If I had not given permission and allowed the appeal on another issue, I would have had to reach a conclusion on this issue. However, as there will be a rehearing, I consider it better to avoid expressly my own view.

G.         Waking day ground

36.        The parents argued that Lara required a waking day curriculum. The tribunal rejected that argument. It devoted a page and a half of its reasons to explaining why. Those reasons included: (i) a statement of the relevant caselaw; (ii) a reference to the code of practice; and (iii) comments on reports of the four experts relied on by the parents.

Arguments

37.        Mr McKendrick argued that ‘the tribunal acted unfairly by rejecting the parental expert evidence relying upon its own expertise without properly putting their concerns to those experts.’ He relied on Richardson v Solihull Metropolitan Borough Council and the Special Educational Needs Tribunal [1998] ELR 319 and R (L) v London Borough of Waltham Forest and the Special Educational Needs Tribunal [2004] ELR 161.

38.        Mr Anderson argued that the tribunal did not have to accept the expert evidence and had good reasons to reject it.

Analysis

39.        I respectfully agree with what Peter Gibson LJ said in Richardson (at page 338):

‘Although the SENT is a specialist tribunal with members appointed for their expertise, it is important that the SENT obeys the rules of natural justice and that the members should not give evidence to themselves which the parties have had no opportunity to challenge.’

The difficulty, as Beldam LJ noted in the same case (at pages 331-332), is that:

‘it is sometimes difficult to distinguish between an expert tribunal using the expertise for which its members have been chosen in deciding issues before it and using that expertise in a way which raises other issues the parties may not have had an opportunity to consider.’

40.        In my judgment, the tribunal in this case did no more than use its knowledge and experience to assess the evidence put to it by the parties. That is part of the tribunal’s function. It should have taken neither party by surprise that it discharged that function. There is nothing in the reasons given by the tribunal to suggest that it was doing anything else. There is nothing to suggest that it was improperly constructing a case that the parents had not had a chance to meet. It is not necessary for a tribunal to put every aspect of its thinking to the parties as the hearing progresses or afterwards.

41.        I want to comment on the judgment of Beatson J in the Waltham Forest case. Mr Wolfe, counsel for the claimant, argued that (see [3]): (i) the tribunal’s reasons were inadequate; and (ii) the tribunal had relied on its own expertise without giving the claimant the chance to deal with the matters arising from it. The judge summarised the principles governing reasons:

‘14. … Secondly, a specialist tribunal, such as the SENDIST, can use its expertise in deciding issues, but if it rejects expert evidence before it, it should state so specifically. In certain circumstances it may be required to say why it rejects it: see H v Kent County Council, per Grigson J. at para [50]. … Fourthly, and linked to the second point, where the specialist tribunal uses its expertise to decide an issue, it should give the parties an opportunity to comment on its thinking and to challenge it. That is established in the Mental Health Review Tribunal context by R v Mental Health Review Tribunal ex parte Clatworthy [1985] 3 All ER 699, and in the context of this tribunal in M v Worcestershire County Council and Evans.’

The judge concluded:

‘25. I have concluded that what has been stated is not sufficient. The key question in this case related to progress at the school. The evidence from the mother and the expert was that there was no progress. This was rejected on the basis of, apparently, the P scale scores and the annual review reports. In those circumstances, it is incumbent on a Tribunal to give a brief reason as to why this is so.

26. If it is because of the expertise of the SENDIST then, as Mr Wolfe submitted and as is now standard practice in Mental Health Appeal [sic] Tribunals, the expert member of the tribunal should put, either directly or through the chair, the point to those representing the parties at the hearing. Not to do that and not to give an explanation does, I have concluded, constitute an error of law and for that reason I allow the appeal.’

42.        I want to comment on paragraphs 14 and 26.

43.        The two cases cited in paragraph 14 apply the principle that a party must not be taken by surprise. In particular, they are concerned with the possibility that a tribunal might rely on  a ground for decision of which the parties had no notice.

44.        In R v Mental Health Review Tribunal, ex parte Clatworthy [1985] 3 All ER 699, Mann J said (at 704) that:

‘Where a tribunal desires to proceed on the basis of some point which has not been put before it and which on the face of the matter is not in dispute, it is in my view in the highest degree desirable that the person whose case is being considered by the tribunal should be alerted to the possibility.’

Later he said that the failure would be a breach of natural justice, but that there was no suggestion that it had happened in that case.

45.        In M v Worcestershire County Council [2003] ELR 31, there was an argument that the tribunal had used its own expertise in relation to the child’s need for occupational therapy. Lawrence Collins J set out the principles that he had to apply, concluding:

‘11. … Fifthly, the lay members of a tribunal specifically appointed for their educational expertise may use that expertise in deciding issues before the Tribunal, but they may not use it to raise and decide other issues which the parties may not have had an opportunity to consider (for example the choice of a specific school which neither party had considered): Richardson v Solihull Metropolitan Borough Council … [1998] ELR 319, at 322. That is because although it is a specialist tribunal with members appointed for their expertise, it is important that the tribunal obeys the rules of natural justice and that members should not give evidence to themselves which the parties have had no opportunity to challenge: ibid at 338.’

He concluded:

‘56. It is impossible to fault the nature or extent of the reasoning on occupational therapy. The tribunal has plainly taken into account the evidence put forward on Joshua's behalf and come to a rational conclusion. It made a finding of fact (para [21] above) the first sentence of which is plainly based on the statement as amended (and consequently not challenged), and after taking into account the report of the occupational therapist, Patricia Rush. Its conclusion that his motor difficulties were not particularly severe and that his needs could be met appropriately by advice to the school, and by physical education and help with his handwriting, for which direct therapy by an occupational therapist was not necessary, was entirely rational. The reasoning was entirely sufficient in the context of the tribunal's findings of fact. I accept the authority's argument that they were points on which further evidence or submissions were not required, and were appropriate for a specialist tribunal with members appointed for their expertise to consider. The tribunal was not applying its expertise in a way which would have required it to put this recommendation to the parties.’

46.        Turning to paragraph 26, Beatson J referred to the practice in mental health cases. The position in those cases, now heard by the First-tier Tribunal, is that the consultant psychiatrist on the panel interviews the patient before the hearing and reports to the other members. The gist of the consultant’s findings is then reported to the parties and their representatives at the hearing. Practice varies as to whether this is done by the presiding judge or the consultant. In other words, the practice is part of an independent investigation carried out by the consultant. In those circumstances, it is obviously necessary to report on that investigation to all those concerned in the case. The Court of Appeal took a similar approach in Evans v Secretary of State for Social Security, reported as R(I) 5/94. That case concerned a medical appeal tribunal, in which the consultant members examined the claimant as part of the appeal process. As the consultants had disagreed with the claimant’s consultant on diagnosis, the Court decided that the tribunal should have adjourned to allow the claimant’s advisers to respond to the tribunal’s view. The Court described it as ‘profoundly unsatisfactory that, when one is dealing with a long standing condition, an appeal should be rejected if there is a real risk that the same clinical findings may be interpreted differently by two experts.’ The practice that is followed in mental health cases and medical appeals complies with the general requirement to deal with a case only on grounds that have been argued before the tribunal.

47.        The difficult I have with Beatson J’s reasoning is knowing precisely what it was that should have been put to the parties in that case. It may be that there was some significance in the P scale scores and annual reviews that was uniquely understood by the panel. That would certainly have to be put to the parties. Whatever the judge had in mind in that particular case, it is my task to apply the general principles of natural justice and the Convention right to a fair hearing to the circumstances of this case. Mr Anderson referred me to Miss H v East Sussex County Council [2009] ELR 161, in which Waller LJ commented (at [14]-[15]) on Beatson J’s statement of guiding principles, complaining that his approach ran the risk of elevating into general principles statements that were made in the context of a particular case. I accept that, but I am confident that a tribunal must not deal with a case on a ground of which a party had no notice.

48.        From the tribunal’s reasons in this case, it appears to me that the tribunal did no more than use its knowledge and experience in assessing the relevance and persuasiveness of the evidence. The parties put their evidence and arguments to the tribunal in the knowledge that the members had expertise in education matters and that they would use that expertise to assess whether the evidence was relevant to the issues it had to decide and, if so, its persuasiveness. That is how the tribunal used its knowledge and experience and it was proper so to do.

H.         The effect of my decision

49.        I have set aside the tribunal’s decision. The First-tier Tribunal will rehear the appeal afresh to decide on Lara’s special educational needs at the time of the rehearing. It may be that the parties are able to agree on much more than was agreed before the previous hearing and can reduce the number of issues that the tribunal has to consider.

50.        For the record, (a) my assessment of the suitability of the transport arrangements to P School and (b) my statement of the costs of P School and MH School are made on the evidence before me. They do not bind the tribunal on issues of fact, which must be decided on the evidence at the rehearing.