DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to dismiss the appeal by the appellant.

 

The decision of the First-tier Tribunal (Health, Education and Social Care Chamber) taken on 7 December 2010, following the hearing on 26 November 2010 in Manchester under file reference 10-001039, does not involve an error on a point of law.

 

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 this appeal.

 

This decision is given under section 11 of the Tribunals, Courts and Enforcement Act 2007 and rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

 

 

 

 

REASONS FOR DECISION

Introduction

1. This appeal concerns a decision of the First-tier Tribunal (“the tribunal”) about the statement of special educational needs (SEN) for a young boy (“L”).  The tribunal dismissed the parents’ appeal about the SEN statement on 7 December 2010, following the hearing in Manchester on 26 November 2010.  I am dismissing this further appeal for the reasons that follow.  I appreciate that this will be a disappointment to the parents, who naturally want the very best for their son.  However, the Upper Tribunal’s powers are limited to correcting errors of law, and I have concluded that there is no material error of law in the tribunal’s decision.

 

2. My colleague Judge Levenson granted permission to appeal on the papers on 16 February 2011.  I held an oral hearing of the appeal to the Upper Tribunal at the Manchester Civil Justice Centre on 22 June 2011.  L’s mother was present, and the parents were represented by Mr David Lawson of Counsel; the local authority was represented by Mr James Cornwell of Counsel. Neither counsel had appeared at the hearing before the First-tier Tribunal.  I am grateful to them both for their well-crafted submissions.

 

The background to the appeal to the First-tier Tribunal

 

3. L is now aged nearly 12.  According to the summary in the tribunal’s decision, L’s multiple difficulties include “impairment of vision and hearing, a dyskinetic cerebral palsy associated with epilepsy, and severe learning disability”.

 

4. On 10 February 2010 the local authority issued an amended SEN Statement for L under section 324 of the Education Act 1996.  As regards the Part 4 issue of placement, the SEN named CHS, a community special school maintained by the local authority.

 

5. On 7 April 2010 L’s parents lodged an appeal with the tribunal.  They stated that they disagreed with Part 4 of the SEN statement. They asked for a different school, RSM, a non-maintained special school run by a charitable trust, to be the named school for Part 4 purposes.  They recognised that CMS was “a very good school” but set out their reasons why they believed RSM represented the best option for L’s particular needs.  They were later given permission to amend the grounds of appeal to include challenges to Parts 2 and 3, as well as to Part 4, of the SEN statement.

 

6. The local authority opposed the appeal on the basis that such a placement would involve unreasonable public expenditure.  There were some exchanges between the local authority and the parents’ representatives both before and during the tribunal hearing about the contents of Parts 2 and 3, leading to some agreement but equally some areas remained in dispute.

 

The First-tier Tribunal’s decision

 

7. The parents’ case as put to the tribunal, and as summarised in the grounds of appeal to the Upper Tribunal (at [10]), was as follows:

 

“The Appellant appealed … on the basis that L’s primary special educational need is MSI [multi-sensory impairment] rather than profound and multiple learning difficulty [Note: presumably this should have read difficulties] (PMLD).  The Appellant argued that since MSI is L’s primary need following from his visual and hearing impairments, appropriate provision should follow in Part 3 and RSM would be the appropriate placement in Part 4.”

 

8. The tribunal, however, dismissed the parents’ appeal.  In summary the tribunal decided that L’s primary special educational needs arose from his PMLD rather than from MSI.  It decided that, as RSM was “in the frame” because of its acknowledged expertise in dealing with the needs of MSI children, there was no requirement that L be placed at RSM and that his needs could be met at CHS.  The tribunal also decided that the cost of placing L at RSM would be significantly higher than placing him at CHS and would involve unreasonable public expenditure such that parental preference did not prevail.  The tribunal accordingly directed that CHS be confirmed as the Part 4 placement.

 

9. In relation to the outstanding issues in dispute as regards Parts 2 and 3 of the SEN statement, the tribunal stated as follows:

 

“J. There were some remaining disagreements between the parties about the content of certain parts of L’s statement.  All of them were dependent upon our decision on the issues of primary need and placement.  It follows that, having determined the two principal issues, we have decided that the LA’s position should prevail on the remaining points in issue on the content of L’s statement.”

 

10. It will understandably be of no interest whatsoever to the parents, but at this point I should just mention briefly that the First-tier Tribunal’s continued reliance on the former SENDIST decision format, with a mixture of some paragraphs being numbered, and others being listed alphabetically, has been the subject of adverse comment in a number of recent Upper Tribunal decisions.  I simply reiterate and reinforce, but do not repeat here, those comments.  A failure to follow the Senior President’s Practice Statement on the format of decisions does not mean that the tribunal has erred in law.  Compliance is, however, a matter of good judicial practice.

 

The parties’ submissions to the Upper Tribunal

 

11. The original single ground of appeal, as settled by Mr Clive Rawlings of Counsel, was in reality a composite of two separate points: (i) that the tribunal had not resolved all the Parts 2 and 3 issues in dispute; and (ii) that the tribunal had wrongly allowed Part 4 of the SEN statement to influence Part 3, and so had impermissibly ‘reasoned backwards’.

 

12. At the oral hearing, Mr Lawson, in his careful and thoughtful submissions, essentially built on those twin challenges.  His attack was thus two-fold, based on a challenge to the tribunal’s reasons and to its reasoning.  As to the former, his submission was that the tribunal had not provided an adequate explanation for its decision, especially as regards the matters in dispute in Parts 2 and 3.  In short, the tribunal had stated a conclusion at paragraph [J], rather than explained its decision.  As to the latter, even if the reasons challenge was not accepted, he argued that the tribunal’s statement of reasons showed that its process of reasoning had misapplied the law and had approached the inter-relationship between Parts 2, 3 and 4 in an irregular fashion.

 

13. Mr Cornwell, in his detailed and incisive written and oral submissions, essentially argued that the tribunal had decided the outstanding Parts 2 and 3 issues in a manner in which it was entitled to do.  Its decision as to those disputed issues was based on its main finding as to L’s primary special educational need.  Moreover, he submitted, the tribunal had in no way impermissibly read back from a conclusion on placement in Part 4 to the detailed findings in Parts 2 and 3.

 

The scope of an appeal to the Upper Tribunal

 

14. I should emphasise at this juncture that the Upper Tribunal’s jurisdiction is confined to deciding whether the decision of the First-tier Tribunal discloses any error on “any point of law”.  The Upper Tribunal can only interfere with the decision of the First-tier Tribunal if it got the law or the procedure wrong

 

15. In this context there was some debate, or as Mr Lawson put it, a sub-debate, both in the papers and at the oral hearing, as to the proper approach to be taken by the Upper Tribunal when considering an appeal against a First-tier Tribunal’s decision in the special educational needs jurisdiction. 

 

16. Mr Cornwell relied on Lady Hale’s observations in AH (Sudan) v Secretary of State for Home Department [2007] UKHL 49; [2008] 1 AC 678 (at [30]), which I had referred to in DC v London Borough of Ealing [2010] UKUT 10 (AAC) (at [37]).  He submitted this required a cautious approach by the Upper Tribunal, not least as the jurisdiction is limited to points of law and the Upper Tribunal does not sit (in this jurisdiction at least) with expert members itself.

 

17. Mr Lawson referred me to the observations of Judge Ward in MW v Halton BC [2010] UKUT 34 (AAC) (at [43]) to the effect that Lady Hale’s comments should not be seen as imposing “an additional need for restraint on the Upper Tribunal”.  In other words, appellate courts and tribunals should adopt an appropriate degree of caution when scrutinizing the decisions of fact-finding tribunals, but no more.

 

18. I am not sure in practice there is much more than a difference of emphasis here.  However, I am content to follow the approach of Judge Ward in MW v Halton BC, and accept for present purposes that, in the context of a first appeal from a tribunal decision, such as this, AH (Sudan) does not mean that anything other than an ordinary degree of caution is apt.  In that context, however, that means that I also have to recognize that I cannot substitute my own view of the facts for that taken by the tribunal – not least as the tribunal is a specialist tribunal sitting with expert members.

The reasons challenge

 

The legal test for a reasons challenge

19. There was no real dispute between counsel as to the appropriate legal test to apply.  The principles governing adequacy of reasons in special educational needs cases were set out in Waller LJ’s judgment in H v East Sussex County Council [2009] EWCA Civ 249, [2009] ELR 161 (at [16]-[19]), reaffirming the approach taken by Ward LJ in W v Leeds City Council and SENDIST [2005] EWCA Civ 988, [2006] ELR 617 (at [52]-[54]). That analysis in turn drew on Donaldson LJ’s observation in an employment law case, UCATT v Brain [1981] IRLR 225 at 227, that the purpose of a tribunal’s reasons “remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win”.  This is also sometimes compendiously referred to as “the Meek test”, based on another employment tribunal case, Meek v Birmingham City Council [1987] IRLR 250.

 

20. In Meek v Birmingham City Council, the late Sir Thomas Bingham MR (as he then was) explained as follows (at [8]):

 

"It has on a number of occasions been made plain that the decision of an Industrial Tribunal is not required to be an elaborate formalistic product of refined legal draftsmanship, but it must contain an outline of the story which has given rise to the complaint and a summary of the Tribunal's basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts. The parties are entitled to be told why they have won or lost. There should be sufficient account of the facts and of the reasoning to enable the EAT or, on further appeal, this court to see whether any question of law arises….."

 

21. Furthermore, as Mrs Commissioner Parker has noted in a Social Security Commissioner’s decision CSIB/502/2006 (a jurisdiction in which the same test of adequacy of reasons applies), “the test is adequacy of reasons, not perfection” (at [17]).  The ultimate basis for the rule, as Mr Lawson rightly identified, is one of fairness.  This was highlighted by a decision of the Court of Appeal not cited by counsel, in an appeal from the ordinary civil courts, but which makes the same point succinctly. Lawrence Collins LJ (as he then was) stated in Bassano v Battista [2007] EWCA Civ 370 (at [28]) that:

 

“… The duty to give reasons is a function of due process and therefore justice, both at common law and under Article 6 of the Human Rights Convention.  Justice will not be done if it is not apparent to the parties why one has lost and the other has won.  Fairness requires that the parties, especially the losing party, should be left in no doubt why they have won or lost. Want of reasons may be a good self-standing ground of appeal.”

 

22. However, as Arden LJ also stated in a concurring judgment in the same case, “reasons must be satisfactory but they need not be exhaustive” (at [55]).  She continued: “the starting point is that the judge need not deal with every point, but the basis of his decision must be clear” (at [56]).

 

The reasons challenge in this case

23. The starting point has to be the dispute that the tribunal had the responsibility for deciding.  The parents’ case, challenging the SEN statement for L, was as set out at [7] above.  Its essence was captured by the tribunal in its statement of reasons (at [4] and [7]). The tribunal then went on to consider the evidence about L (especially at [8]-[13]).  I simply note that this include a mixture of evidence and implied findings of fact, which merely reinforces the point made about the formatting of tribunal decisions at [10] above.  The parties’ respective submissions before the tribunal were set out neatly in the statement of reasons (at [18] and [19]), and there was no suggestion that that summary was other than an accurate account of the competing cases.

 

24. The tribunal’s central conclusions and reasoning (at [B] and [C]) were as follows:

 

“B.  It is not possible for us to decide on placement until we are satisfied as to L’s primary special educational needs.  In this case there was a straight dispute between the parties as to whether MSI constituted that primary need or whether in fact he is a PMLD child whose difficulties included hearing and visual impairment.  That was certainly the view of Dr M and we are bound to give considerable weight to that view, because he was the only person with appropriate professional training who has given a view…

 

C. We have to make our decision on the balance of probabilities and we have therefore come to the conclusion that L is a PMLD child with (it was agreed) significant hearing and visual impairment but his multi-sensory impairment is not his primary need.  In coming to this conclusion we have also taken into account that there is no evidence that L has a higher cognitive assessment which might be expected of a child whose primary need is MSI.”

 

25. Both counsel took me to Dr M’s written evidence on file.  It is certainly the case, as Mr Lawson argues, that the e-mail from Dr M itself is brief and on the face of it not necessarily the best or indeed most compelling evidential basis.  However, as Mr Cornwell rightly pointed out, the e-mail has to be taken together with, and seen in the context of, the consultant’s previous and more detailed letter, also on file.  It must also be seen in the context of the substantial body of other evidence on file which did not identify L’s needs as being primarily MSI, although both visual and hearing impairments were plainly part of the constellation of conditions involved.  Indeed, as Mr Cornwell pointed out, the suggestion of MSI did not appear in the papers until relatively late in the day.  

 

26. In those circumstances, and bearing in mind the nature of the dispute as put to the tribunal, my view is that the tribunal’s reasons as summarised at [24] above meet the Meek test.  The tribunal was faced with two competing scenarios, one emphasizing PMLD, the other stressing MSI, and it explained shortly and succinctly with two reasons why it preferred the local authority’s position.  It is also axiomatic that the weight to be attached to any particular piece of evidence before the tribunal “is essentially a matter for the Tribunal, unless the approach can be shown to be so illogical as to be irrational or perverse” (see Dobbs J. in W.S. (by his litigation friend Mr S) v Governors of Whitefield Schools and Centre [2008] EWHC 1196 (Admin) at [27]).

 

27. Other tribunals might have spent rather longer explaining their analysis of the relevant evidence.  That does not mean that this tribunal erred in law.  It gave adequate reasons on the central issue to be decided.  As Arden LJ observed, “reasons must be satisfactory but they need not be exhaustive”; or as Mrs Commissioner Parker put it, the test remains adequacy, not perfection.

 

28. However, Mr Lawson’s reasons challenge goes beyond the central PMLD/MSI dispute.  In particular, he attacks the tribunal’s statement of reasons (at [J]; see [9] above) as regard its treatment of the outstanding Part 2 and Part 3 issues.  This is, he argues, an assertion rather than a reason.  It puts the local authority at “the Goldilocks point” – “everything is just right” – and the parents in the converse position, where nothing they propose on Parts 2 and 3 is “just right”, but with no adequate explanation.

 

29. In fairness only one point was taken on Part 2 of the Working Document, namely the apparent ambiguity left in the final paragraph under the heading “medical issues”.  However, coming to the document afresh, it is clear to me that the local authority was accepting part of the parents’ suggested wording (from “additional complex” to “mean that he”) but resisting the remainder, with their own alternative formulation (from “requires additional support” to the end).  It follows from paragraph [J] that the tribunal was resolving the remaining ambiguity in favour of the local authority.  I have read and accept the witness statement from the local authority’s education officer as to the genesis of her interpolated comment there, which was in any event not seriously disputed.

 

30. Mr Lawson’s principal further reasons challenge was to the use of the tribunal’s omnibus paragraph [J] as an all-purpose means of seeking to explain why the remaining issues in dispute under Part 3 had been resolved in favour of the local authority.  There was, he pointed out, no individualised determination of the specific points of dispute on the drafting of the disputed parts of Part 3, but rather the catch-all or sweep-up use of paragraph [J], without any further explanation.  It was not, he submitted, for the local authority or the Upper Tribunal to put together an explanation after the event.

 

31. Plainly it is not the task of counsel for the local authority or the Upper Tribunal to set out the reasoning which the First-tier Tribunal should have provided at first instance.  However, I did not understand Mr Cornwell to be seeking to re-write the tribunal’s reasons for it.  Rather, his submission was that the tribunal resolved the remaining Part 3 disputed issues in one way (at paragraph [J]), and that there was no duty on them, bearing in mind the Meek test, to provide detailed reasons on each specific issue in dispute.

 

32. I agree with Mr Cornwell’s analysis.  There will clearly be cases where a tribunal will need to grapple almost on a line-by-line or even word-by-word basis with particular aspects of Part 3.  However, the tribunal’s duty is to provide adequate reasons, and it is important to read the statement of reasons as a whole.  It is also necessary to bear in mind Arden LJ’s observations in Bassano v Battista, which indicate that a sense of proportion is required. 

 

33. I was taken by both counsel in some detail through the disputed passages in Part 3.  I do not think it is either necessary or proper for me to go into each and very one of those points in detail in this decision.  The reason for that is that the more I heard, the more I was satisfied that the differences in proposed wording all ultimately turned, directly or indirectly, on the resolution of the central PMLD/MSI issue.  It is important to bear in mind that the tribunal was effectively saying that they preferred the local authority’s formulation of the required provision for L’s special educational needs in Part 3 as that flowed from their finding on the central PMLD/MSI issue.  The precise form of the wording in Part 3 followed logically from that conclusion.  The tribunal might have said a bit more – for example, it might have given one or two illustrations of why that was the case – but its reasoning was adequate, although not extensive.

 

 

 

The reasoning challenge

 

The reasoning challenge in this case

34. Mr Lawson’s second main challenge to the tribunal’s decision related to the reasoning adopted by the tribunal as regards Parts 3 and 4.  In summary, the argument was that the tribunal’s decision on the Part 3 matters in dispute was “impermissibly infected”, as he put it in his skeleton argument, by the decision on Part 4.  In other words, this was not a case where the outcome in Part 4 had merely influenced the “precise form of provision” in Part 3, but a case where Part 4 had actually (and unlawfully) determined the contents of Part 3.  Mr Lawson relied on S v City of Swansea and Confrey [2000] ELR 315 and especially Learning Trust v MP and SENDIST [2007] EWHC 1634 (Admin) and K v LB of Hillingdon [2011] UKUT 71 (AAC).

 

35. In response, Mr Cornwell’s core submissions were that (i) the law governing the relationship between Parts 3 and 4 was not as prescriptive as Mr Lawson sought to argue; and (ii) in any event the tribunal in the present case had approached the matters involved in the correct sequence, with Part 2 being the driving force for the provision determined under Part 3 which led to the placement decision in Part 4.  Accordingly, he submitted, the tribunal in this case had not “put the cart before the horse”.

 

The authorities

36. The case law on the inter-relationship between Parts 2, 3 and 4 of a SEN statement is well known; the medical analogy of first diagnosis and then prescription is sometimes used.  The mischief to be avoided (putting the cart before the horse) was identified by Sullivan J. (as he then was) in S v City of Swansea and Confrey (at 322H); but his Lordship accepted that once Part 2 and 3 had been settled, “the prescription in the remainder of Part 3 may be ‘informed’ by what is actually available at a particular school” (at 323A).  The principles are helpfully summarised by Mr Andrew Nicol QC, as he then was, sitting as Deputy High Court judge in Learning Trust v MP and SENDIST (at [42]).

 

37. Mr Lawson also referred me to the passage in McCullough J.’s judgment in R v Royal Borough of Kingston upon Thames & Hunter [1996] EWHC Admin 200, [1997] ELR 223 (at [37]) where his Lordship stated that “Part 4 cannot influence Part 3. It is not a matter of fitting Part 3 to Part 4, but of considering the fitness of Part 4 to meet the provision in Part 3.”  I agree with Mr Cornwell that the case law has developed a little since then, with the more nuanced approach as to the linkage between Parts 3 and 4 identified by Sullivan J. in S v City of Swansea and Confrey coming to the fore.  I think both counsel accepted that Learning Trust v MP and SENDIST properly reflected the modern understanding of the law.

 

38. His Honour Judge Pearl actually decided K v LB of Hillingdon on another point.  However, HH Judge Pearl commented in passing (at [36]) that in that case there was some force in counsel’s submission that “a reading of the Tribunal’s decision gives the impression that the Tribunal are making the provision fit the placement, rather than first, deciding what provision is required and specifying it in Part 3, and then, secondly, going on to decide at which school that provision is to be made.”

 

The application of those principles to the present appeal

39. So is this a case where the tribunal has, as Mr Lawson submits (although he naturally put it much more elegantly), put the cart before the horse in following a rigid and prescriptive approach relying on Part 4 to determine Part 3?  Or is this a case, as Mr Cornwell argues, where the tribunal has applied the law correctly in terms of its process of reasoning from diagnosis (Part 2) to prescription by way of provision (Part 3) to placement (Part 4)?

 

40. The answer to those stark questions depends on a reading of the tribunal’s decision as a whole.  It is important to read the whole decision in the context of the parents’ case as it was advanced at the hearing below and in the light of all the evidence on file.

 

41. It seems to me that this is actually a stronger ground of appeal than the first reasons point.  However, on balance, I am not satisfied that the tribunal made such a fundamental and elementary error in this case as putting the Part 4 cart before the Part 3 horse.  To pursue the analogy, the driving force for a horse and cart is actually the driver (or Part 2), whose needs set the direction of travel.  The tribunal was plainly conscious of that process of reasoning from diagnosis to provision and placement (see e.g. at [4] of the statement of reasons, summing up the parents’ case (see [7] above); see also paragraph [7] of the statement of reasons).

 

42. Those passages in the tribunal’s statement of reasons satisfy me that the tribunal’s starting point was Part 2 and the diagnosis of special educational needs.  The determination of that central issue was crucial, given the way that the case had been argued before the tribunal.  That decision on diagnosis, to use the medical analogy again, necessarily impacted on both the type of provision required in Part 3 and then the placement in Part 4. 

 

43. The way in which the tribunal set out its decision might give the impression that it went from Part 2 to Part 4 and then back to Part 3.  However, it seems to me that impression is a reflection of the fact that the case had principally been argued on the two binary choices of PMLD/MSI and CSH/RMS.  Given that the tribunal had satisfactorily, if succinctly, explained why it rejected the premise that L’s primary needs were MSI, the rest necessarily followed.  This accounts for what might otherwise be seen as the rather cursory paragraph [J] of the statement of reasons.

 

44. It is important to note that the tribunal did not reject the proposition that L had considerable visual and hearing impairments.  Those factors were identified in Part 2 and appropriate provision was identified in Part 3.  It was just that the tribunal rejected the argument that MSI was the dominant diagnosis and driver of L’s special educational needs.

 

45. I should also just record that there has been no challenge to the tribunal’s findings and reasoning on the issue of unreasonable public expenditure, and nor in my view could there be.

 

Conclusion

 

46. For the reasons explained above, the decision of the tribunal does not involve any error of law.  The tribunal reached a conclusion that was open to it on the evidence and arguments before it and gave adequate albeit not extensive reasons for its decision.  I must therefore dismiss the appeal.

 

 

 

Signed on the original Nicholas Wikeley

on 15 July 2011 Judge of the Upper Tribunal