Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

This decision is given under section 12(2)(a) and (b)(i) of the Tribunals, Courts and Enforcement Act 2007.

 

The decision of the Tribunal taken on 14/6/10 under file reference 09-01665 involves a material error on a point of law.  The decision is SET ASIDE and REMITTED to the First-tier for a complete rehearing by a freshly constituted tribunal. 

 

REASONS FOR DECISION

 

Introduction

 

1       I apologise for the delay in issuing this decision.

 

2       This case was transferred to me by Judge Wikeley. It concerns the statement of special educational needs for the appellant’s son, H.  Judge Wikeley gave permission to the appellant to appeal on grounds which, in essence, are an attack on the adequacy of the facts and reasons provided by the First-tier Tribunal (‘the tribunal’).  However, in the course of deliberation, I have come to the conclusion that there is, another problem in the decision:  having decided not to name the appellant’s preferred school, the tribunal did not consider whether it should have placed the child at a mainstream school, as required by section 316 of the Education Act 1996, unless that was incompatible with either the parent’s wishes or the education of other children.  There was evidence that the appellant wished H to attend a mainstream school with a MDL environment if preferred school was not named:  p449, 474 and 612, tribunal bundle.  The tribunal made no findings on the appellant’s further wishes for her child’s education, if her preferred school was rejected, or on whether it was incompatible with the education of other children to place the child in a mainstream school. Rather than delay the decision any further, I set it aside for inadequacy of reasons and the error in not dealing with the application of section 316.

 

3       I set out the details of the case in some detail, having regard to the complexity of events which led to this set-aside.

 

The background to the appeal to the tribunal

 

4       H, who was born in 2004, was about 6 years old at the time of the tribunal decision.  The Tribunal found, in a section entitled ‘Evidence’ but which the tribunal plainly intended to treat as factual findings, that H was a high functioning autistic child with severe speech and language disorder, delay in his reciprocal social interaction skills and restrictive behaviour.  He had normal cognitive functions and good hand skills, but did not have good functional skills.  He was diagnosed as having epilepsy at one stage, but this diagnosis was not sustained.

 

5       There is a long history of dispute between the appellant and the respondent (the Local Authority) about the appropriate school for her son.  In its decision, the First-tier Tribunal states that the LA investigated 14 schools in its effort to satisfy the appellant’s demands, but the appellant did not consider any of them acceptable.  The LA has done its utmost in trying to accommodate the appellant’s views, but the sad fact is that she has been dissatisfied with each of the many schools which the LA either suggested as appropriate for H, or sent him to, in conformity with her wishes.  The appellant’s dissatisfaction with more than one school flew in the face of their reports describing him as progressing, happy and settled.  It is ironic that the school the appellant is appealing against in part 4 of the Statement of Special Educational Needs (SSEN) is an expensive, independent school for children with complex learning problems which the LA put forward of its own volition because it satisfied all of the requirements the appellant perceived her son to have.

 

6       The SSEN was issued on 18 May 2009.  The appellant was unhappy with Parts 2, 3 and Part 4, in which Riverhouse School, an independent primary school following Montessori methods of education, was named at the appellant’s request through her solicitors (p114, appeal bundle).  Although the appellant named this school, the request was, in effect, a way for her to initiate an appeal to specify Treetops School, a special school for children with moderate learning difficulties maintained by the neighbouring borough of Thurrock (p14, 450), in part 4. 

 

7       The LA had no objection to sending H there but Thurrock, when approached, felt they could not provide a place at Treetops School for H because it was already overcrowded, had a waiting list, and could not physically find or make the space in the classrooms for the special AVA/VB teacher which the appellant insisted upon. 

 

8       The respondent LA therefore declined to name Treetops School because, in all the circumstances, giving him a place would be incompatible with the provision of efficient education for the children with whom he would be educated: Sch. 27 para. 3(3), Education Act 1996.  It maintained the name of Riverhouse School in Section 4 but continued to try to find another suitable school. 

 

9       H attended Riverhouse School from May/June 2009 until the school decided to withdraw his place from spring term 2010 owing to the appellant’s unreasonable demands and behaviour.  In the end, they agreed to keep his place open until the end of summer term (July 2010).  The LA paid his fees until then but the appellant did not send him back from Easter 2010 because she considered the school totally unsuitable for her son.  He has not been to school since, but has instead been home schooled, without the LA’s approval.  Any proceedings arising out of her failure to send him to school are not a matter for this Tribunal.  I would note, however, that her duty was to send H to the school named in the Statement of SSEN.  The tribunal’s decision stood unless and until it was either stayed (which has not happened) or overturned.

 

10    The LA had to change the named school, type of school (or both) in part 4 since a place at the named school, Riverhouse, was no longer available.  At the first hearing of the appeal on 11 March 2010, the LA indicated that it wished to name Woodcroft School, a special independent (non-maintained) school for children with severe, profound or complex learning difficulties in Loughton, Essex.  

 

11    The appellant rejected this school as unsuitable following a visit.  She felt it was a school for severely learning disabled children whereas she now considered H to have made great progress at Riverhouse School and to be only moderately disabled.  This is at significant odds with the views she presented for inclusion in Part 2 of the SSEN and with the most recent paediatric occupational therapist’s report she had produced.  The gist of her appeal changed, therefore, from presenting H as severely disabled to being moderately disabled.  This is stated, for example, in her e-mail dated 16 March 2010 to Mrs Gersch, who represented the LA and who is head of SEN in the LA. 

 

12    Importantly, the appellant stated in that e-mail that she thought H should be schooled in a ‘mainstream school with a MDL (moderate disability) environment, i.e. Treetops School’.  There are indications that, if Treetops School was not available, she would have wanted H to be schooled in a mainstream school with a MDL environment, as set out in [2] above.  At least in theory, the appellant would have been content with a mainstream school with a special unit or special provision.  The issue of a mainstream school as alternative to Treetops School was was, therefore, a live one. 

 

13    The appellant says that, at the hearing, she asked the tribunal to specify a mainstream school of her choice until a place at Treetops School became available if they did not name Treetops School in part 4. There is nothing in the tribunal’s Decision to show that this submission was made.  Unfortunately, the tribunal did not record the submissions made by the appellant’s representative in the Decision, apart from noting that her representative had abandoned home schooling with a RDI programme.  There is neither a Record of Proceedings nor a copy of written submissions in the file from which I can glean this information.  However, it would be surprising if this submission was not made, since the appellant was by this stage desperate for H not to attend Woodcroft School, and it was obvious that a place at Treetops School was problematic.

 

14    It is not possible to say that the LA was convinced that the only appropriate school was a special school or that it considered H’s needs to be incompatible with the education of others in a mainstream school.  The LA had proposed an independent Montessori school in part 4 and had considered a wide range of schools, including maintained mainstream schools (449, tribunal bundle), as well as a number of special schools, for H. 

 

15    At the end of the day, the tribunal did not accede to the appellant’s wishes in respect of Part 4, though it accepted her amendments in substance in respect of Part 2 and 3.

 

Were parts 2 and 3 of the SSEN properly formulated and explained? 

 

16    I have come to the conclusion that they were not.  It is trite law that a Statement of Special Educational Needs must set out the child’s learning difficulties in part 2 and the special educational provision to be made for them in part 3 with sufficient specificity for the parties know what the learning difficulties are and what the child is entitled to have .  In order to do this, disagreements between the parties regarding parts 2 and 3 have to be resolved by the tribunal in the body of the Decision, which should also set out the reasons why a mainstream school or unit of such a school, or other the other hand, a special school or independent school (specialist or otherwise) is appropriate.

 

17    In this appeal, the tribunal omitted to make sufficient findings of fact and resolve disputes about the type of teaching H needed.  In particular, there are no findings on whether he needed teaching in accordance with ABA/VB and RDI principles.  This was stated in the working SSEN document to be a matter on which there was no agreement between the Local Authority and the appellant.  The tribunal appears simply to have acceded to the appellant’s wish by directing that ABA/VB teaching (which would be available at Woodcroft School) be given to H.  It may be that, if the tribunal had made findings of fact about this and explained why this type of teaching provision was required to deal with H’s needs, it would have been clear that only this specialist independent school was appropriate for him.  As it is, it is not.

 

18    Since the appellant’s fall back request for H was schooling in a mainstream school, the lack on findings on the above matters was resulted in a significantly flawed decision which never got to grips with the type of school that was appropriate. 

 

What rights are given to a parent to choose an education for their child? 

19    The basic principle set out in section 9 of the Education Act 1996 (‘the Act’) is that local authorities ‘shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.’  It is a qualified right.

 

20    The parent of a child with special educational needs has a specific right to express a preference for a school, which must be named in a statement of special educational needs under section 324, if paragraph 3(3) of Schedule 27 is satisfied:

 

324.  Statement of special educational needs.

(1)   If, in the light of an assessment under section 323 of any child's educational needs and of any representations made by the child's parent in pursuance of Schedule 27, it is necessary for the local authority to determine the special educational provision which any learning difficulty he may have calls for, the authority shall make and maintain a statement of his special educational needs.

 

(2)   The statement shall be in such form and contain such information as may be prescribed.

 

(3)   In particular, the statement shall—

(a)   give details of the authority's assessment of the child's special educational needs, and

 

(b)   specify the special educational provision to be made for the purpose of meeting those needs, including the particulars required by subsection (4).

 

(4)   The statement shall—

(a)   specify the type of school or other institution which the local authority consider would be appropriate for the child,

 

(b)   if they are not required under Schedule 27 to specify the name of any school in the statement, specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement, and

 

(c)   [not material]

 

Schedule 27, paragraph 3(3) - Choice of School

(1) Every Local Authority shall make arrangements for enabling a parent ... to express a preference for the maintained school at which he wishes education to be provided for his child and to give reasons for his preference.

(3) Where a local authority make a statement in a case where the parent of the child concerned has expressed a preference in pursuance of such arrangements as to the school at which he wishes education to be provided for his child, they shall specify the name of that school in the statement unless –

 

(a) the school is unsuitable to the child's age, ability or aptitude or to his special educational needs, or

 

(b)   the attendance of the child at the school would be incompatible with the provision of efficient education for the children with whom he would be educated or the efficient use of resources.

 

Further sections which are relevant to this appeal are:

 

316 - Duty to educate children with special educational needs in mainstream schools

(1)This section applies to a child with special educational needs who should be educated in a school.

 

(2) If no statement is maintained under section 324 for the child, he must be educated in a mainstream school.

 

(3) If a statement is maintained under section 324 for the child, he must be educated in a mainstream school unless that is incompatible with–

 

(a)  the wishes of his parent, or

(b)   the provision of efficient education for other children.

 

316A(3) – Education otherwise than in mainstream schools

(1) [not material]

(2) [not material]

 

(3) Section 316 does not affect the operation of

(a)  section 348, or

(b)   paragraph 3 of Schedule 27.

 

(4) If a local authority decide

(a) to make a statement for a child under section 324, but

(b) not to name in the statement the school for which a parent has expressed a preference under paragraph 3 of Schedule 27,

 they shall, in making the statement, comply with section 316(3).

 

(5) A local authority may, in relation to their mainstream schools taken as a whole, rely on the exception in section 316(3)(b) only if they show that there are no reasonable steps that they could take to prevent the incompatibility.

 

(6) An authority in relation to a particular mainstream school may rely on the exception in section 316(3)(b) only if it shows that there are no reasonable steps that it or another authority in relation to the school could take to prevent the incompatibility.

 

348(1) This section applies where –

(a)special educational provision in respect of a child with special educational needs is made at a school which is not a maintained school, and

 

(b)   either the name of the school is specified in a statement in respect of the child under section 324 or the LA are satisfied –

 

(i)     that his interests require the necessary special educational provision to be made for him at a school which is not a maintained school, and

 

(ii)    that it is appropriate for the child to be provided with education at the particular school.

(2) Where this section applies, the LA shall pay the whole of the fees payable…

 

To summarise the effect of these sections, as relevant to this appeal:  where a child has a Statement of Special Educational Needs, his parent can express a preference for the maintained school (not any number of schools) which they wish him to attend.  Parental preference must prevail unless the child’s attendance at the school would be incompatible with the provision of efficient education for the children with whom he would be educated:  paragraph 3(3)(b).[1]  If the exception is established, the parent’s right to have the school named falls away.  The LA then has a duty to educate the child at a mainstream school unless an exception in section 316 applies; in other words, unless mainstream education is incompatible with the wishes of his parent or the provision of efficient education for other children, and there are no reasonable steps that they (or another authority) could take to prevent their mainstream school(s) from being incompatible [section 316A(5) and(6)].  This duty plainly envisages that children with special educational needs will be educated in mainstream schools unless there are strong reasons not to do so.  

 

Did the tribunal err in law by not naming Treetops School? 

21    No, they did not.  The tribunal considered that placement at Treetops was incompatible with efficient education for the children with whom he would be educated under paragraph 3(3)(b).  It made sufficient findings of facts and gave adequate reasons for this in [11] and [16] of the Decision and had regard to the Code of Practice], as it was required to do, in [13].  There was no material error in its approach.

 

22    This leaves the question of whether the tribunal could have made its order in the form of ‘mainstream school A until a place at Treetops School becomes available’.  The tribunal should have dealt with this issue, but their omission to do so was immaterial given that, on its findings, it was impossible to name Treetops School at all.  It was just not a question of the number of children at the school, but of the sheer physical space which would be needed to meet H’s requirement for an ABA/VB teacher, which no reasonable steps could overcome. 

 

23    It is not necessary, in these circumstances, to decide whether an order in the form requested by the appellant for part 4 would be valid for the purposes of paragraph 3(3).  My tentative view, however, is that a purely speculative order such as this would not be valid. 

 

Was the tribunal correct in naming Woodcroft School?

24    The tribunal went wrong here.  Once the parent’s choice of school was refused, her rights under paragraph 3(3) of Schedule 27 were exhausted.  The LA and the tribunal (standing in its shoes) were then under a duty to place H in a mainstream school unless an exception in section 316 applied. 

 

25    In R(MH) v Special Educational Needs and Disability Tribunal and L. B. of Hounslow [2004] EWCA Civ 770 at [67ff], the Court of Appeal gave guidance on the operation of Schedule 27 paragraph 3(3), section 316 and 316A(3), the latter of which gives priority to paragraph 3(3) of Schedule 27 (where it is applicable) over section 316.  This guidance is not technically binding on the Upper Tribunal but is of strong persuasive value and, in my respectful view, provides the correct approach to these provisions.  The guidance has been adopted as correct by the Upper Tribunal and other courts in a number of other cases. 

 

26    In MH, a mother of a child with special educational needs expressed a preference for a named mainstream school, but the LA specified a special school in part 4 of his Statement.  The facts were, therefore, somewhat different from those before me, but I do not consider the difference to affect the principles given in the court’s guidance.  

 

27    I cite the guidance in MH at length because the passage as a whole will be helpful to the tribunal which rehears the appeal:  

69 Under the paragraph 3 process, parents have a qualified right to insist on their preference for a particular school. The right is qualified by paragraph 3(3)(a) and (b), in that if any of the conditions in those subparagraphs is met, the local education authority is not bound to specify the name of that school in Part 4 of the statement (although there is nothing in paragraph 3 which expressly prevents it from doing so). The conditions are 'suitability' (in subparagraph (a)) and incompatibility with either with 'the efficient education for the children with whom he would be educated or the efficient use of resources'. Although a modified version of the 'incompatibility' condition appears in section 316(3)(b) ('the provision of efficient education for other children'), read with the 'no reasonable steps' provisions in section 316A(5) and (6), the 'suitability' condition in paragraph 3(3)(a) has no equivalent in the section 316 process. So much at least appears to be common ground.

70 We turn, then, to the section 316 process. Section 316(3) imposes a duty on a local education authority to educate a child in a mainstream school if the parents wish it, unless 'that' (i.e. the education of the child in a mainstream school) is 'incompatible with the provision of efficient education for other children'. That condition is itself qualified by the 'no reasonable steps' requirement in section 316A(5) and (6).

71. Section 316 is not expressly directed to the making or maintaining of a statement, but the necessary link is provided by section 316A(3). Section 316A(4) provides that where a local education authority decides to make a statement for a child under section 324, and lawfully rejects a parent's preference for a particular school (i.e. where the paragraph 3 process has been exhausted), it must, in making the statement, comply with section 316(3). It is in our judgment clear from section 316A(4) that, in the context of issues as to the contents of Part 4 of a statement, the section 316 process is subordinate to the paragraph 3 process in the sense that it only comes into operation where the paragraph 3 process (if lawfully invoked by the parent) has been exhausted. Where the paragraph 3 process has been lawfully invoked, the starting point for the local education authority, and hence for the Tribunal standing its shoes (see Sedley LJ in Bromley, quoted in paragraph 32 above), must be the question whether the parent is entitled to insist on his or her choice of school. The parent will be so entitled unless either the 'unsuitability' condition in paragraph 3(3)(a) or either limb of the 'incompatibility' condition in paragraph 3(3)(b) applies. Subject to that, the chosen school must be named in Part 4 of the statement, and (so far as Part 4 of the statement is concerned) the section 316 process will not come into operation. However, if one or other of the prescribed conditions applies, and the local education authority decides not to name the chosen school in Part 4 of the statement, then by virtue of section 316A(4) the section 316 process comes into operation. …

75. [So] in our judgment the correct analysis is that whilst section 316 does not require a local education authority to name a particular school in Part 4 of the statement, it does not prohibit it from doing so; and that in carrying out the section 316 process the local education authority (and hence the Tribunal) has a discretion to consider particular schools as candidates for naming in Part 4 of the statement.

76. ….we conclude that, having regard to the Guidance …, in carrying out the section 316 process a local education authority (and the Tribunal, standing in its shoes), having concluded that mainstream schooling is the appropriate type of schooling for the child, ought normally to exercise its power to name a particular mainstream school in Part 4 of the statement. The Tribunal will of course concentrate on deciding the issues which arise on the appeal before it, and we imagine that there may occasionally be appeals in which the only issue is as to the type of school.

79. We reject the respondents' submission that where, in the course of the section 316 process, the parent has proposed a particular mainstream school or particular mainstream schools, such expressions of preference fall to be treated as if they had been made in the course of the paragraph 3 process…

 

80. Nor can we accept the respondents' submission that such an interpretation of sections 316 and 316A enables a parent to 'bypass' the stricter test laid down by paragraph 3(3). In our judgment, the fallacy in this submission lies in its failure to recognise that the paragraph 3 process is wholly distinct from the section 316 process. Whereas, under paragraph 3, parents have a qualified right to insist on a placement at the particular school [emphasis added] of their choice, in the context of the section 316 process there is no such right. In that context, any preferences expressed by a parent for a particular school or for particular schools are no more than nominations of candidates for consideration in accordance with the section 316/316A criteria. In the context of the section 316 process, the Tribunal must in our judgment consider all candidates for nomination on an equal footing, whether they are proposed by the parent or by the local education authority (it is not open to the Tribunal to consider proposals from any other source: see section 326(4)(b)).

 

28    As applied to the appeal before me, the following can be derived from the guidance:  The appellant’s choice of school was rejected by the tribunal under Schedule 27, paragraph 3(3).  The tribunal therefore had to turn to section 316, under which the Authority had a duty to educate H at a mainstream school unless that was against the wishes of the appellant or incompatible with the education of other children.  As it happened, the appellant had expressed a wish for the child to be educated in a mainstream school, if her first choice failed.  Therefore, if the LA did not send him to attend a mainstream school, it bore the burden of showing that H’s education in such a school was incompatible with the provision of efficient education for other children, and that no reasonable steps could cure that incompatibility (section 316(3)(b) and 316A(6)).  It was only then that the Woodcroft School could be named in part 4.

 

29    In cases where the parties agree that a special school is appropriate but only disagree on which school will be named, the issue of mainstream schooling as an alternative may never raise its head.  But by the time of the final hearing in this case, it appears that there was no clear agreement between the parties that a special school was appropriate.  Indeed, the LA’s decision to switch from naming Riverhouse School, which was a ‘mainstream’-type school albeit independent and following Montessori principles, to a special school in part 4, was such a striking development that it required the tribunal to pursue the question of whether the duty to educate H at a mainstream school was to prevail.  It was not an option for the tribunal simply to accept the special school nominated by the LA.  Section 316 had come into play.  For that purpose, the appellant could make nominations or representations for a mainstream school, but had no right to insist on one of her choices. 

 

30    The tribunal did not deal with this issue.  The appeal must be remitted to a First-tier Tribunal to make the necessary finding of facts on it. 

 

Was the decision inadequate in other respects?

31    I deal with a few other points made by the appellant for completeness.  

 

32    The tribunal set out the evidence in paragraphs 1 – 11.  It is clear that, although headed ‘evidence’, those paragraphs equate to findings of fact.  I can see nothing wrong with the facts set out.  They are a sufficiently accurate statement of the chronology and reports, and do not differ materially from the accounts given by the appellant, albeit shorn of their more emotive content.  Even if they were not entirely correct, I could not interfere with findings unless they were irrational or perverse.

 

33    I reject the appellant’s submission that the tribunal should not have accepted the evidence given by the head teacher of Woodcroft School, Mrs Newton, that it could meet H’s needs because she had never met H.  The tribunal exercised its expert judgment in weighing up the value of her evidence and gave sufficient reasons for accepting it.  That was a matter for the First-tier Tribunal, not for the Upper Tribunal. 

 

34    The tribunal accepted the LA’s working Statement of Special Educational Needs subject to the changes it made to Part 3, in which it directed that the LA provide teaching on ABA/VB principles for H, as requested by the appellant.  The parties should note that insufficient reasons were given for accepting the appellant’s views about ABA/VB teaching.  It will be up to the tribunal which next hears the appeal to decide whether this provision was necessary for H. 

 

Disposal of the appeal

35    The appeal must be remitted to a fresh tribunal for complete rehearing.  There are too many factual issues outstanding to allow me to substitute my own decision.  A salaried tribunal judge will no doubt wish to give directions for the rehearing.  At the minimum, it would be sensible to ensure that the LA provides a chronology of events, an explanation of the powers it acted under in performing the review, and a list of the schools the parties have considered, mainstream and otherwise. 

 

36    The appellant cannot continue to blow hot and cold.  She must indicate clearly which school she wishes to specify in part 4.  She is also entitled to suggest a mainstream school or schools for the purposes of the section 316, in case her part 4 choice is unsuccessful.  There is, however, no duty on the LA or the tribunal to accept her nominations. 

 

37    If the appellant continues to ask for a mainstream school with a MDL environment as a fallback for the purposes of section 316, but the LA considers that education in a special school is the only option for H, it will have to show that such schooling (with reasonable adaptations) is incompatible with efficient education for other children.

 

 

 

Signed on the original S M Lane

Judge of the Upper Tribunal

Dated 27 September 2011