IN THE UPPER TRIBUNAL Case No S/2085/2009

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Attendances:

For the Appellant: Mr David Lawson of Counsel

For the Respondent: Mr Guy Opperman of Counsel

Decision: The appeal is allowed. The decision of the First-tier Tribunal (HESC Chamber) sitting at Bristol on 17 June 2009 under reference 08-02864 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 in accordance with law before a differently constituted tribunal.

REASONS FOR DECISION

1. JB was born on 3 October 1995. In the (undisputed) words of his statement of special educational needs:

“[He] has been diagnosed with an Autistic Spectrum Disorder/Aspergers and atypical Attention Deficit Hyperactivity Disorder (ADHD).

Associated with [JB’s] Asperger’s Syndrome, he also has motor co- ordination difficulties, which are evident with praxis, visual-spatial and visual perception difficulties and a sensory processing disorder. He has dyslexia and dyscalculia. He presents with a broad range of developmental and functional difficulties that manifest them [sic] in school and at home and within the wider community.”

2. In 2007 JB began in Year 7 at the P School, a maintained mainstream school. He faced a number of difficulties and found it a troubling experience. (He subsequently ceased to attend that school in October 2008, on medical advice.) An amended statement was issued on 18 August 2008, which continued to name P School. The appellant, JB’s mother, appealed against this decision. At that time her preference was for W School, a maintained special school. The respondent resisted this on the grounds that the relevant class there was full and that to admit JB there would have a detrimental effect on the education of pupils already in that class. This remained the position when on 17 November 2008 the appellant’s solicitors applied to the First-tier Tribunal to amend the appellant’s grounds of appeal:

“so as to name [F school], an independent specialist provision for children on the Autistic Spectrum. [Our client] had requested a place at [W School] but they have refused this placement. Our client has therefore looked at alternative provisions, especially given the current circumstances whereby [JB] is not in school…” (Emphasis added).

3. Permission to amend was granted. In the Spring of 2009 however, there was a further development, in that the funding arrangements for the W School changed, so that it became in a position to admit JB from September 2009. By the time of the hearing, the respondent had changed its position, so that it was no longer arguing for mainstream provision (i.e. the P school) but for a special school (the W school). The appellant argued for a different special school (the F School) and no longer supported the W school. The parties were agreed as to Part 2 of the statement and as to much that was in part 3. What remained were differences on at most two aspects of Part 3 and the school to be named in part 4.

4. In February 2009 the appellant’s solicitors had instructed Mr John Hall, a Chartered Educational Psychologist, to carry out a psycho-educational assessment of JB’s developmental status, cognitive abilities, educational achievements and his school and social adjustment difficulties. He was asked to provide advice on the nature and extent of his special educational needs and the provisions required to address them and to identify the type of school that would be able to meet his needs. This Mr Hall did, in a substantial and reasoned report dated 4 February 2009, consisting of 26 pages plus appendices. Mr Hall had applied (among others) the WISC-IV tests, from which he noted (among other matters)

Cognitive domain	Percentile rank
Verbal Comprehension	37
Perceptual Reasoning	21
Working Memory	1
Processing Speed	1

He observed that:

“[JB’s] cognitive profile is uneven in that his scores on the information processing subtests are very substantially weaker than his two main index scores. On this assessment evidence he has relatively much poorer skills in auditory processing/working memory and speed of information processing.”

5. Although he goes on to explain that in view of the uneven nature of JB’s cognitive profile, it is not appropriate to cite an overall ability estimate (in the sense of the traditional Full Scale IQ), he puts forward , with an explanation, an alternative basis for estimating, termed the General Ability Index, observing that:

“When this calculation is made for [JB’s] scores he has a GAI of 91, confidence interval 86-97 (27^th percentile). This is in my opinion the best estimate of his understanding/learning potential. This is within the “Average” range.”

6. His conclusion on these issues was that:

“[JB] has “Average” understanding and learning potential but his specific difficulties impede his school progress and have hitherto restricted the development of his literacy and numeracy skills at a level anywhere in line with his general ability. His difficulties have not hitherto been understood for what they are (specific learning difficulties) so no specialist input has been made. If his identified difficulties are addressed appropriately he is likely to improve his skills at a faster rate than has hitherto been the case.”

7. Mr Hall made a number of recommendations for changes to Parts 2 and 3 of the statement, not least so as to address the specific learning difficulties of dyslexia and dyscalculia which he had identified. As these are agreed, I do not need to refer to them further. Mr Hall expressed the view that a mainstream school was not appropriate and that F school was appropriate. His report did not address W School, which at that time was not being put forward by either party. Once the possibility of a place at W School arose, Mr Hall was instructed to prepare a further report, appraising the provision available at that school. He visited the school on 1 April 2009 and met with the head teacher. Subsequently he put further questions to the school by letter. His second report is dated 14 May 2009.

8. In relation to the W School he comments:

“All pupils have significant general learning difficulties and in the [report of a recent OFSTED inspection] the inspectors state, “[W] School educates boys and girls mainly experiencing moderate learning difficulties, autistic spectrum disorder, behavioural, emotional and social difficulties, and physical disabilities.”

9. In a key section of his second report, Mr Hall makes the point that:

”While it is clear that [W] is a very good school for the pupils it serves, if [JB] is to be placed there it is important to be sure that it will be able to meet his extensive special educational needs.”

He then goes on to consider this question under five headings; his analysis under four of them suggested a negative answer.

10. Thus, under “Intellectual ability”, Mr Hall drew attention to JB’s cognitive profile, as assessed by his first report, concluding that:

“[JB’s] general ability means that he does not fit into the profile of the majority of pupils served by [W]. He does not have moderate learning difficulties (MLD) which is the descriptor used to identify the most intellectually able group of pupils in the school.”

11. Under “Curriculum”:

“As a child of average general ability and specific learning difficulties [JB] needs a curriculum appropriate for typical children of his age with appropriate adjustments made to take account of his particular difficulties. The curriculum in a school for children with significant learning difficulties is not of this type.”

12. Under “Specific Learning Difficulties”:

“[JB] is dyslexic and dyscalculic so requires a school that has expertise in teaching children with specific learning difficulties. It is unusual for a generic special school for children with substantial general learning difficulties to have expertise with children with these needs. My understanding is that [W] does not have expertise in this general area although I am sure it provides good teaching support for literacy and numeracy as a school of this type would be expected to do.

13. Under “Asperger’s Syndrome”:

“I have no knowledge of the severity of the ASD children in W but as this is primarily a school for children with learning difficulties it is likely many are less intellectually able than [JB].”

14. His conclusions included:

“32. [JB’s] average general intelligence suggests that he has the potential to achieve age-appropriately. This potential is expressed by his relatively good (compared to his other literacy skills) reading skills…so he has the potential to achieve age-appropriately academically, but his dyslexia and dyscalculia present as obstacles to this so need to be addressed through specialist teaching programmes…

34. [JB] will require a highly specialist approach to meeting his various needs and the opportunity to work with young people with similar difficulties who share his learning potential. My understanding of the situation at [W] is that its pupil population is not of this type. It also does not have the expertise to address [JB’s] specific learning difficulties…

35. Unless [JB] is taught alongside pupils who broadly share his general level of understanding and learning potential he will be much less likely to gain the type and level of school qualifications he is capable of achieving.

36. In making these observations I intend no criticism of [W] as it is clearly an outstanding school with dedicated staff and excellent leadership. It is just not the right school for [JB].”

15. No challenge was made to Mr Hall’s findings of specific learning difficulties or of an uneven cognitive profile.

16. Mr Hall attended the tribunal hearing and gave oral evidence.

17. Though there are other points also, it is whether the tribunal dealt adequately with Mr Hall’s evidence, clearly expressed, that W was by virtue of its main pupil group not an appropriate school to be specified for JB under section 324 of the Education Act 1996 which lies at the heart of this appeal. The tribunal found itself in a difficult position. There was nobody from W present to give evidence. Although there was general material from the school in the form of a school handbook/prospectus and a recent OFSTED report, there was no written material from the school setting out its proposals for meeting JB’s needs; indeed, though the Head Teacher (who had not met JB) had seen papers relating to JB, these must have included only a much earlier draft of his statement, in which a significant number of points which ended up in parts 2 and 3 would have not been present. As the tribunal noted:

“We had to rely on the evidence of Ms Middleton [the Educational Psychologist witness called by the respondent] and her comparatively brief connection with the school and the limited amount of time she has spent there, together with the comments of Ms Knowlton [the respondent’s acting assistant SEN manager]. It was unfortunate that neither could answer our queries specifically.”

18. The tribunal ordered that provision for JB’s specific learning difficulties of dyslexia and dyscalculia be included within Part 3, as argued for by Mr Hall. But this left untouched Mr Hall’s contentions that the profile of the pupils at W was such that it would not provide the peer group of broadly similar understanding and learning potential which JB needed, if he was not to be much less likely to succeed. 1:1 or small group provision only appears to occupy 5 hours of JB’s week and thus the remainder of the time he will be being educated with his peer group. In R (ota IPSEA Ltd) v Secretary of State for Education and Skills [2003] ELR 393, the Court of Appeal noted that:

“…a child may flourish in one setting within a particular peer group and with particular teachers, therapists or assistants. Exactly the same numerical input but in a different peer group or from different people may be actively damaging.”

Neither quantitatively nor qualitatively, therefore, could Mr Hall’s point (the implications of which he had set out in his evidence) be said to be anything other than material.

19. The tribunal’s decision was in the conventional form used by the former SENDIST. It included a section entitled “Facts” and another entitled “Tribunal’s conclusions with reasons”. The section on “Facts” contains in this case some matters of fact, but also recites evidence and also in places seeks to define the scope of the appeal. There is nothing in this section which I would regard as a finding of fact about the cognitive profile of pupils at W school. When one turns to the “Tribunal’s conclusions with reasons”, it was evident that the tribunal was unable to make a finding on this point, finding the OFSTED report ambiguous and not obtaining any assistance on this aspect from the respondent’s witnesses. I consider that the tribunal failed to make a finding of fact on a matter which was necessary for its decision and thereby erred in law.

20. This section of the decision does not refer at all to Mr Hall’s contentions summarised above. I am driven to the conclusion that the decision failed to take into account and/or resolve a conflict of fact (as above) and/or opinion (as to the consequences for JB’s education) and thereby was in error of law.

21. In paragraphs E and F of its decision, the tribunal relied on two pieces of circumstantial evidence. Paragraph E indicates that the tribunal had taken account of the fact that W had previously been the appellant’s choice of school and that there was no evidence that JB’s difficulties had changed. Mr Lawson initially asked me to conclude that this was irrelevant. This in my view is to put the matter a little too strongly and I think that Mr Lawson may have modified his position. It seems to me that for such a fact to provide material of useful evidential weight, the tribunal needed to make findings about how the appellant originally came to choose W; what led her to change her view in November 2008 to favour F school and, having then changed it, to maintain that position up to the date of hearing. Such an approach is consistent with the emphasis placed by Thorpe LJ in C v Buckinghamshire CC [1999] ELR 179 on the factors underlying a parent’s preference, rather than on the mere fact of it alone.

22. In paragraph F, the tribunal relies on a quotation from the OFSTED report that “the attainment of older pupils reaches national average levels”, obtaining a range of qualifications including GCSE and NVQ, presumably on the basis that thereby it could provide for JB, a student said to be in the average range. But unless and until the pupil profile is resolved this is, it seems to me, to fall foul of the observations in MMB v SENDIST and Hillingdon [2004] EWHC 513 (unrep) at [24]. The fact that relying on a range of qualifications a school may be able to get pupils from its core group to a particular level does not mean that it can necessarily do so for the pupil the subject of the present statement if he is not within the core group or that the qualifications involved would be the appropriate ones for that pupil.

23. In the decision refusing permission to appeal, the tribunal judge refers to S v Swansea and Confrey [2000] ELR 315. In general, the Upper Tribunal may be wary of documents which may be seen as adding to reasons already given, but even assuming that the principles of that case were likely to have been in the tribunal’s mind, I do not consider that they help here. In deciding what capacity can be attributed to a school in the absence of evidence, an expert tribunal may be able to draw inferences from the type of school. However here that was one of the matters in dispute and there was as a result limited room for the principle to apply without the dispute having been resolved.

24. As already indicated, I do not see any sign of the necessary process of weighing these considerations against Mr Hall’s evidence, but for the reasons above, the manner in which they were taken into account in any event in my view discloses further errors of law.

25. It follows from what I have said that I see the errors of law as being primarily those of insufficient findings, a failure to resolve a conflict and having regard to irrelevant matters, rather than primarily an error based on the reasons. I would add, though, that (among other matters) I do not consider that the tribunal’s statement is sufficient to tell the parties why they won or lost in relation to the views expressed by Mr Hall on the appropriateness of the W school and it thus falls foul of the Meek test, approved following the decision in H v East Sussex CC [2009] ELR 161.

26. I can deal more briefly with the other grounds of appeal. The tribunal was asked to consider an amendment to the statement, so that JB would start Year 8 again, although his age would conventionally result in his being placed in Year 9. There was little evidence in support of the application. In general terms, aside from the specifics of this case, such a step might have significant implications, among them there being a different, younger peer group for the pupil; the possibility arising because of the age of compulsory schooling that the pupil could leave school, one year before the stage generally envisaged, with implications for qualifications obtained; the need for an extra year’s funding if the pupil stayed to the end of the same school year, having taken an extra year along the way; and the implications of increased formality and reduced flexibility if such provision was included in a statement, potentially affecting not only the pupil concerned but others in the pupil cohort.

27. The tribunal in relation to this proposal recorded that “we make no decision as this is outside our remit” and “It is not within our remit to make such an order. It is for the professionals to decide taking all the circumstances into account.” I would understand a “remit” in this context as referring to an area of authority or responsibility. Consequently, the more natural reading of the tribunal’s words in my view is that it considered it did not have jurisdiction. The words that “we make no decision” in my view also strongly point to that conclusion.

28. Section 324(3)(b) of the Education Act 1996 requires a statement to specify the “special educational provision” to be made for the purpose of meeting a child’s special educational needs. “Special educational provision” is defined so far as relevant in section 312(4) as meaning :

“educational provision which is additional to, or otherwise different from, the educational provision made generally for children of his age in schools maintained by the local education authority (other than special schools)”.

Counsel were unable to direct me to any provision of law underpinning the allocation of children to year groups, which appears to be done as a matter of established practice. As such, the allocation of a child to a different year group seems capable of falling within the wording of section 312(4) and thus of being a matter capable of falling within a statement and one over which the tribunal, on an appeal under section 326, has jurisdiction. Accordingly, the tribunal further erred in law in refusing jurisdiction on this point. As I am setting the decision aside on other grounds, I do not need to consider whether I would have set the decision aside on this ground alone.

29. The remaining ground of appeal was that the tribunal erred in failing to determine whether the occupational therapy provision it ordered should be provided by an on-site therapist. This was not the appellant’s strongest point. The appellant had put in a report from an independent occupational therapist, Ms Rush. Her recommendations included that:

“JB needs on-site Occupational Therapy where the Occupational Therapy can be delivered directly but also suggestions and recommendations be embedded within the curriculum to help learning”.

The tribunal ordered all the provision sought other than the requirement for the therapist to be on-site. What they did order included provision for the therapist to provide in-service training for staff working with JB and to provide advice on the appropriate physical environment. Provision was also made for updating sessions. If the tribunal made what would otherwise have been an error of law here (which I very much doubt), I was not satisfied that it had any materiality at all, as Counsel was not able to demonstrate what specifying that the therapist be on-site would achieve that would not be achieved by the provision which was in fact ordered.

30. I should briefly mention the point made by Mr Opperman and evidently in the tribunal’s mind that there is a very considerable difference indeed between the respective costs of W school and F school. However, that does not alter the fact that JB was entitled to a decision on the evidence, reached in accordance with legal requirements, as to whether the W school was “appropriate” for the purposes of section 324 of the Education Act 1996 or not. The existence of such a large cost differential may, of course, have implications for the thoroughness with which respondents may choose to put evidence before the tribunal as to the appropriateness of the less expensive provision in such cases.

31. The appeal is accordingly remitted to a differently constituted First-tier tribunal of the Health, Education and Social Care Chamber for complete re-hearing. Both parties sought to put in further evidence to the Upper Tribunal. In the case of the Respondent, evidence submitted included further details of the provision offered by the W School and of how JB is getting on there. Such evidence will be better considered by the First-tier Tribunal, with the benefit of input from its two specialist members.

32. I do emphasise that the appeal is being allowed on the grounds of a number of errors of law in how the tribunal tackled, in somewhat difficult circumstances, the decision before it. This carries no implication as to the outcome when the case is re-heard, which is entirely a matter for the tribunal

re-hearing the case.

CG Ward

Judge of the Upper Tribunal

14 January 2010