Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  HS/1036/2012

ADMINISTRATIVE APPEALS CHAMBER

Before UPPER TRIBUNAL JUDGE WARD

Attendances:

For the Appellant:  Mr Russell Holland, Counsel

For the Respondent: Mr Keith Brelstaff and Ms Alison Trott, Children and Young People’s Directorate, Somerset County Council

Decision: The appeal is dismissed.  The decision of the tribunal issued on 30 December 2011 under reference SE933/11/00004 did not involve the making of an error of law.   

REASONS FOR DECISION

1. This was a dispute about the school to be named under Part 4 of a statement of special educational needs.  The appellant, the mother of K, the child concerned, wanted School M, an independent school, to be named.  The respondent local authority considered that School B, a maintained school, should be named.  The issue that arose was thus one of section 9 of the Education Act 1996, which provides that:

“In exercising or performing all their respective powers and duties under the Education Acts, the Secretary of State and 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.”

2. Following a hearing on 1 November 2011, at which the hearing of the appeal was not completed, the tribunal judge had on 14 November 2011 issued directions inter alia for:

(a) the parent’s representative to file and serve an assessment of how School M proposed to meet K’s special educational needs, with costings

(b) the respondent to file and serve a case statement detailing their views as to the suitability of School M and

(c) the parties to draw up a schedule detailing the estimated costs of School B and School M and to identify any areas of disagreement.

3. So far as the matters required of the respondent were concerned, as to (b) it filed a submission that

“The Local Authority has considered the information provided by [School M] including the information provided [in response to direction (a)] and section 9 of the Education Act 1996, and concluded that placement at [School M] would not be compatible with the efficient instruction and training of [K] for the following reasons”.

It then went on to list them and I return to them below.  As regards direction (c) a schedule was provided which showed that the additional costs of a placement at School M would be £19,716.90 or £20,751.90, depending on which year K was placed in.

4. The tribunal ordered that School B be named.  The significant part of its reasoning for the purposes of the present appeal is in paragraphs 30 to 32 of its decision:

“ 30. [K’s] views were presented to the tribunal by her mother:  she did not want to return to [School B].  If [K] had met with the tribunal it is likely that those would have been the views that she would have presented herself.  [K’s mother] argued that a small educational placement was now required for [K].  Her views were also supported by Ms Pontac and Ms Rush [respectively speech and language therapist and occupational therapist].

31. The tribunal did not agree with this argument.  Even though a small educational placement may appear to offer benefits for [K] the tribunal did not consider that [School M] offered a better alternative for the following reasons: 

(a) [K] does not require dyslexia specialist teachers in all subjects, she does require specialist subject teachers and this is reflected in Part 3 of her statement.

(b) [School M] offers a limited range of peers for [K].

(c) [School M] has limited flexibility to respond to issues raised by [K] that affect her ability to attend school. 

(d) [School M] is a considerable distance from [K’s] home and in addition to distress caused by [K] by the long journey time, there would be limited opportunities for direct home - school liaison in the event of attendance issues re‑emerging.

32. The apparently intractable opposition of [K] to returning to [School B] had to be taken into account by the tribunal.  The tribunal had also to take into account that there is now a real possibility that [K’s] anxiety, and general difficulties with school attendance, might result in her attending a new school for a short period only.  The difficulties with [School M] as outlined above make this more likely.”

5. There is little doubt that in the tribunal’s statement of reasons, these three paragraphs were having to work very hard.  They reflected the tribunal’s engagement with the views of [K], as reported to them, as they were required to do, [K] being 14 years of age at the time of the hearing.  The paragraphs also had to serve as the explanation of the tribunal’s approach to the issue of parental preference.  As the reported views of [K] and those of her mother appear to overlap and the former were communicated by the latter, it is easy to see how this came about.

6. As regards the mother’s views, the tribunal was required to apply section 9, set out at [1] above.  Nowhere in its decision does it set out section 9 in terms, or even refer to it.  Further, in saying that it did not consider School M offered “a better alternative” it was, at first glance, applying the wrong test.  Section 9 does not require the parent to show that their preference is for a “better alternative”.  Rather, the principle to which the local authority and, on appeal, the tribunal must have regard is that pupils are to be educated in accordance with the wishes of their parents unless one or other of the qualifications created by the section is made out, namely incompatibility with the provision of efficient instruction and training or the avoidance of unreasonable public expenditure.

7. Mr Holland accepts that items (a) to (d) in paragraph 31 of the tribunal’s decision could bear on the provision of efficient instruction and training.  But he says, that was not the use the tribunal made of them as was evident from the reference to “a better alternative” in the words which preceded them.

8. Mr Brelstaff submits that one has to read this passage in the context of the proceedings which had led up to it and specifically of the submission directed by the tribunal judge following the first hearing and subsequently provided by the local authority.  He says, correctly, that items (a), (b) and (c) in paragraph 31 of the tribunal’s decision are all to be found in the local authority’s submission as to why a placement at School M would not be compatible with the provision of efficient instruction and training for the purposes of section 9.  Thus, he says that the tribunal’s decision was accepting the authority’s submission on the section 9 point.  I consider that is well founded because of the tribunal’s adoption of the points made by the authority and the context in which the authority made them.  Further, I note that the tribunal, having earlier gone to the trouble of directing further submissions directed to each of the limbs of section 9, then did not feel obliged to deal with the issue of costs at all.  While it is possible that the tribunal might simply have overlooked the point, it would be surprising, especially given the earlier direction, and a more likely explanation in my view is that the tribunal considered that what section 9 had to say in relation to parental preference was in any event defeated by the “provision of efficient instruction and training” point.

9. Mr Holland submits that one should not have to go behind the tribunal’s decision to other documents in the case in order to reach a true understanding of what was meant by the reasons.  In the context of a decision of the First‑tier Tribunal in this jurisdiction, I do not accept that that is necessarily so.  This is not a case where the First-tier Tribunal’s reasons are likely to have an extensive readership beyond the immediate parties.  It is the statement of special educational needs which emerges from the process, rather than the statement of reasons, to which people without knowledge of the litigation are most likely to have occasion to refer.  While I am aware of the note of caution about assuming an informed readership expressed by Dyson LJ (as he then was) in the context of decisions of the then mental health review tribunal in R(H) v Ashworth Hospital Authority [2002] EWCA Civ 923, the context here is a different one.  The standard of reasons required was reviewed by the Court of Appeal in H v East Sussex CC [2009] EWCA Civ 249 from which it is clear the reasons need to tell the parties why they won or lost and to enable the Upper Tribunal or other appellate body to see whether there has been error of law.  The parties will be fully familiar with what has gone on previously.  With that knowledge, it will be clear to them what the tribunal’s position was.  So far as appellate bodies are concerned, it is not uncommon for the Upper Tribunal to have to make reference to other key documents, such as a party’s notice of appeal to the First-tier Tribunal (or equivalent document) in order to assess whether a statement of reasons is adequate.  In the present case it has been possible to see the context without undue difficulty.

10. Mr Holland further suggested it is not desirable that a specialist tribunal should leave it in doubt what principle of law it was applying.  I do not consider that when it is read in its context, there is any real doubt.  The decision could undoubtedly have put the point more clearly, but read in its context, it is clear despite its at times infelicitous wording that the tribunal did apply section 9 to this case and it sufficiently explained its position to the parties with their knowledge of what had gone before and to the Upper Tribunal.

11. Accordingly, the appeal does not succeed.

(Signed on the Original)

C G Ward

Judge of the Upper Tribunal

3 October 2012