Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No.  HS/2245/2012

ADMINISTRATIVE APPEALS CHAMBER

JUDGE MARK

Decision:   1. The appeal is allowed.  I set aside the decision of the tribunal and remit the case for rehearing by a new tribunal in accordance with the directions given below.

REASONS FOR DECISION

1.     This appeal is brought with my permission.  R was born in November 1998.  His mother appealed to the First-tier Tribunal against the refusal of the Respondent local authority to make a statement of special educational needs in respect of him.  The appeal stated that R needed such a statement because he had ADHD, dyslexia and expressive language and semantic difficulties that could not be met at school.  He had been placed by his parents at an independent co-educational day school in November 2010, having previously been a pupil at a different independent school.  It would appear from the evidence before the tribunal that he had left his previous school following a number of serious incidents of bullying at the school.

2.     In July 2011 the First-tier Tribunal had ordered the local authority to conduct a statutory assessment, and that process was completed in November 2011.  On the basis of the assessment, the local authority concluded that R did not require a statement and that his special educational needs could be met from provision generally available to mainstream schools.  The reasons for the decision, and an assessment of R, were included in a letter from the local authority to R’s parents dated 24 November 2011.  R’s parents appealed against the refusal to make a statement, and that appeal was heard on 27 April 2012.  The appeal was dismissed by the First-tier Tribunal by a written decision dated 3 May 2012.

3.     It was common ground, as found by the tribunal, that R’s academic performance was not the key area of concern.  The key area of concern was his behaviour, emotional and social development.  In its conclusions, the tribunal stated it regarded as significant an observation from the representative of the local authority that if R were to attend a mainstream school and then struggle, it would not be necessary for the parents to wait 26 weeks for the parenting process to be completed, as assurances were given that it would be possible to deliver additional support within a much shorter time scale.

4.     The tribunal found that R’s behavioural difficulties were of a boy who fidgets as a matter of routine and who carries on a running commentary and this level of difficulties could not be described as significant or severe when compared with children of the same age.  The tribunal also acknowledged and did not ignore presentational difficulties, which it considered were of an order that any mainstream school should be able to address.  It concluded that R did not need support which was additional to or different from provision currently available at a mainstream school.  What were needed were low level strategies such as were being employed at R’s current school on a daily basis.  It concluded that there was no need for the local authority to determine the special educational provision for R.

5.     A child has ‘special educational needs’ for the purposes of the Education Act 1996 if he has a learning difficulty which calls for special educational provision to be made for him (Education Act 1996, s.312(1)).  Subject to certain exceptions which do not apply here, a child has a ‘learning difficulty’ for the purposes of that Act if (a) he has a significantly greater difficulty in learning that the majority of children of his age, (b) he has a disability which either prevents or hinders him from making use of educational facilities of a kind generally provided for children of his age in schools within the area of the local authority, or (c) he is under school age and certain conditions are met (Education Act, s.312(2)).

6.     ‘Special educational provision’ means for the purposes of the same Act in relation to R, educational provision which is additional to, or otherwise different from, theh educational provision made generally for children of his age in schools maintained by the local authority other than special schools (Education Act 1996, s.312(4)).

7.     The statutory assessment conducted by the local authority of R’s educational needs was carried out under ss.323 and 329 of the Education Act 1996.  That is there was a request by the parents for the local authority to arrange for an assessment in respect of R under s.323 and it was necessary, as the first tribunal found, for the local authority to make such an assessment.  That presupposes that R had special educational needs and that it was necessary for the local authority to determine the special educational provision which any learning difficulty he may have had called for (s.323(2)).  The local authority had then to make an assessment of R’s educational needs.

8.     Under s.324, if in the light of that assessment and of any representations made by R’s parents it was necessary for the local authority to determine the special educational provision which any learning difficulty he may have called for, the local authority was to make and maintain a statement of his special educational needs.  The authority is not required to make and maintain such a statement in respect of every child who has or may have special educational needs, but only in the more serious cases where their intervention is called for.  The guidance in the Code of Practice, para.8:2, states that the local authority will decide to issue a statement when it considers that the special educational provision necessary to meet a child’s needs cannot reasonably be provided within the resources normally available to mainstream schools and early education settings.  Paragraph 8:10 of the Code of Practice requires the local authority to consider all the information gathered during the statutory assessment and relate it to that presented by the school at the time of any request for assessment.

9.     Paragraph 8:13 provides that if the local authority concludes that such provision as is required could reasonably be expected to be made by the school from within its own resources through School Action Plus, it will need to set out its reasons for reaching this conclusion clearly in a note in lieu.  The decision whether to make a statement should be determined by the child’s identifiable special educational needs in the context of arrangements for schools in the area (paragraph 8:14 of the Code of Practice).  Where there is a decision not to issue a statement, the local authority should ensure that the parent and the school are aware of the resources available within all maintained schools to meet special needs; that the parents fully understand school-based provision for SEN; and understand too that there are monitoring and review arrangements in maintained schools which will ensure that their child’s needs are met by the school, with external support if necessary, in an appropriate way (paragraph 8:16).

10. The local authority should consider issuing a note in lieu of a statement.  In such a note, the local authority should set out the reasons for their conclusions, with supporting evidence from the statutory assessment of the child.  All advice collected as part of the statutory assessment should be sent to the parents and, subject to their agreement, to the child’s school and any other professionals who have given advice during the assessment procedure (paragraph 8:17). The Code of Practice goes on to give guidance as to the contents of a note in lieu if one is issued, pointing out that it may require as much thought and time as a statement and contain much the same information, possibly in a similar format.

11. The letter dated 24 November 2011 to R’s parents explaining the decision not to make a statement acknowledges that R experiences certain difficulties in school, but states that the reports show that he is performing at a level for which mainstream schools are expected to make provision themselves, and that R’s needs could be met successfully in the mainstream setting through the Pastoral Care and monitoring system.  A summary of R’s details followed and teachers were invited to refer to the advice written as part of the statutory assessment to develop his Individual Education Plan.

12. The letter went on to describe R’s semantic knowledge and use of meaning as weak.  There is also reference to his impulsivity and attention difficulties in less structured situations.  Academically he is said to cope well but his written presentations did not always reflect his ability and understanding.  Chronologically, he was said to be performing up to 2.5 years below his actual age.  He was described as presenting in class as anxious and restless and giving a continual commentary on what he was doing, and there were references to what appear from the report to be minor social difficulties.  He did not need a statement of special educational needs to access additional support at school.

13. A medical practitioner specialising in community paediatrics provided a written report for the assessment stating that R had significant problems in the area of behaviour/social understanding (although an assessment had found that he did not have an autistic spectrum disorder), as well as a diagnosis of ADHD.  She identified a particular problem understanding non-verbal signals.  Her advice was that R needed consistent teaching in small classes with a high ratio of staff to pupils. 

14. A speech and language therapy report placed R between the 25^th and 63^rd percentiles for receptive and expressive language tests except in relation to a test asking him which two words out of four went together, when he was in the 2^nd percentile for receptive language and the 9^th percentile for expressive language.  This was said to be the result of a weakness in relation to abstract words.  A communication programme developed on a collaborative basis by a speech and language therapist and teaching staff, delivered by teaching and support staff, and monitored by the teaching staff and the therapist, was recommended. 

15. The head teacher of R’s school reported that R exhibited classic symptoms of ADHD, concentration, lack of self control, impulsiveness and ‘distractilbility’.  Previously aggressive/frustration behaviours had begun to lessen.  His disruption was managed by the very small classes typically 12 pupils in his sets, by 1:1 mentoring throughout the week and by constantly high levels of supervision around the school and by the overall small numbers in the school.

16. Psychological advice to the local authority had been that his level of special educational needs were not significant under the Education Act 1996 and that low level intervention should meet his needs adequately.

17. While I fully accept that, as pointed out by the local authority on this appeal, the tribunal did not have to give a decision which was a product of refined legal draftsmanship, the decision did, as pointed out in the authorities cited by it, have to contain an outline of the story which had given rise to the complaint and a summary of the tribunals’ basic factual conclusions and a statement of the reasons which have led them to reach the conclusion which they do on those basic facts (H v East Sussex CC, [2009] EWCA Civ 249; [2009] ELR 161; Meek v Birmingham CC, [1987] IRLR 250).

18. In the present case, a crucial element of the parents’ case was that, as a result of his ADHD, R needed the sort of supervision and small classes that were described by the community paediatrics specialist and implemented by the school at which R currently was.  Further, the current report of his conduct and needs was in the context of his receiving such support.  There is no doubt that his ADHD did give rise to special educational needs, but the tribunal needed to make findings as to the extent of those needs and the provision for them in the context of a mainstream school.  The evidence appears to have been that the mainstream school to which R would go if and when he left his current school was Droitwich High School, and the parents’ representative’s skeleton argument specifically directed the tribunal to the evidence of that school’s SENCO at the previous tribunal hearing, as recorded in paragraph 12 of that tribunal’s decision (which was included in the evidence for the new tribunal hearing), that in her view R’s needs could properly be met at School Action Plus from within the school’s own budget notwithstanding that it was shortly to attain academy status, but that if any dedicated support were considered necessary for R, that would require additional funding from the local authority.

19. According to the local authority’s representative at the hearing before the tribunal under appeal, Droitwich High School had by then converted to academy status.  He is recorded as having told the tribunal that were R to attend Droitwich, support would be available for a minimum of 5 hours in unstructured time, with 30 minutes of 1:1 mentoring and a further 2 hours of support at a homework club if needed, and that the school considered that it could meet his needs.  What is unclear is the evidential basis for this submission.  Mr. Smart may have had personal knowledge of this, or he may have been repeating what somebody told him.  It is also unclear, bearing in mind the evidence given by the Droitwich High School SENCO at the previous tribunal hearing,  what needs were being referred to.

20. It is trite law that submissions are not evidence and if a representative puts forward alleged facts that are not otherwise in evidence, the tribunal should elicit how far the facts alleged are within his personal knowledge or based on some other evidence that can be produced.  Little, if any, weight should normally be attached to assertions by the representative on instructions where there is no other evidence to back up those instructions.

21. The same consideration applies to the comment from the local authority’s representative, regarded by the tribunal as significant, that if R were to struggle at the mainstream school it would not be necessary to wait 26 weeks for the statementing process to be completed.  Again these appear to be submissions rather than evidence.  In addition, I fail to see the significance of these submissions.  The issues before the tribunal were to identify the special educational needs of R and then to determine if the school could reasonably be expected to make such provision from within its resources ((NC & DH v Leicestershire CC,[2012] UKUT 85 (AAC)).  It may comfort the tribunal to know that if it has made a mistake, help may be on hand to remedy matters, but that ought not to be a significant factor in its decision.  This is all the more the case when it appears to be based on nothing more than the submissions of the local authority’s representative unsupported by any evidence.

22. I am further left with the strong impression that the tribunal was considering the problems still manifested by R in the small classes at his current school, and with the high level of supervision and 1:1 mentoring provided there without considering whether the more serious problems exhibited at the local mainstream school before R’s transfer to the independent school with small classes may recur in the conditions existing in Droitwich High School. 

23. For the same reasons, I am also unable to find any adequate explanation by the tribunal as to why it rejected the expert evidence of the community paediatrician that R needed consistent teaching in small classes with a high ratio of staff to pupils.  It is of course open to the tribunal to reject this evidence, or to find that despite that evidence no statement is needed, but it does need to give its reasons and in this case it has not adequately explained its findings as to that evidence.

24. I have little difficulty in understanding why, if R’s only difficulties in a mainstream school were those identified by the tribunal as still existing in the school he now attends, no statement would be needed and his needs could be met from the school’s ordinary resources.  However, a real issue before it was whether the sort of attention he was getting at the current school was the reason that his current problems were so limited and whether the transfer to a mainstream school without the small classes and possibly without the same 1:1 mentoring and degree of supervision would give rise to greater problems which would need to be addressed by increased resources beyond the school’s ordinary resources, as the Droitwich High School SENCO indicated could be the case.

25. I therefore conclude that the tribunal’s reasoning was defective and as a result its decision was in error of law and must be set aside.  The case must be reheard by a new tribunal and I remit it accordingly.  I express no view as to the outcome of the new hearing.

(signed on the original) Michael Mark

Judge of the Upper Tribunal

20 November 2012