Upper Tribunal (Administrative Appeals Chamber)

IN THE UPPER TRIBUNAL Case No. HS/2282/2011

ADMINISTRATIVE APPEALS CHAMBER

 

 

Before: His Honour Judge David Pearl sitting as a Judge of the Upper Tribunal

 

THE APPEAL IS DISMISSED.

 

REASONS FOR DECISION

Introduction

 

1.     Proceedings started in this case on 10^th January 2011 under s 325 of the Education Act 1996 by the parents of A, a child born on 1^st March 2001, subsequent to a statutory review in August 2010, against the refusal of the Leicestershire County Council (the LA), to make a Statement of Special Educational Needs in respect of their daughter but to issue a Note in Lieu on 25^th November 2010.

2.     According to the First-tier Tribunal decision, A has dyslexia and her short term visual memory is very weak. She also has significant difficulties with short term and working auditory memory. This description of her is not in dispute.  The skeleton argument submitted by Ms Scolding on behalf of the Appellants states that ‘her parents have also noted some emotional difficulties, which they indicate are related to her difficulties with learning and her feelings of poor self esteem arising from this’.

3.     After a hearing on 14^th June 2011, the First-tier Tribunal (Judge Nancy Hillier, Mr Chris Marshall, and Mr Alastair Bates) dismissed the appeal in a decision dated 5^th July 2011, having decided (para 37 of the Decision) that a Statement was not ‘appropriate’ and that the Statement in lieu (they mean a Note in Lieu) ‘is appropriate to meet A’s needs.’

4.     Rather than simply dismissing the appeal, the FTT decided ‘to remit the case to the LA for their consideration of our observations as detailed [in the decision].’

5.     These observations read as follows:

“We recommend that the LA consider the need for provision of a formal structure to co-ordinate reviews and monitoring, taking into account A’s parents’ views, to ensure that the next review has a joined up approach to considering how best to provide provision in a very important academic year. We note that the next review of A’s IEP is in November and suggest that the LA consider whether an earlier review of the Note in Lieu, specifically to consider specialist teacher input, might be advisable so that the programme is put in place before the start of next term. The school conceded that some specialist teacher input is necessary and they have delegated funds to provide this. We recommend that the LA consider how this input will be formalised in developing a programme for A’s Year 6.”

6.     Accordingly, the FTT remitted the case to the LA under s 325(3) for the LA to reconsider whether, having regard to the observations as set out above, it is ‘necessary’ for them to further determine A’s educational provision.

7.     The LA considered these observations and on 11^th August 2011, the LA determined not to issue a Statement of Special Educational Needs. It is common ground that, regardless of the chances of success in any appeal process at that stage, the parents did not appeal, as was their entitlement, the decision of the LA dated 11^th August 2011.

8.     The Appellants, however, did appeal the decision of the FTT of the 5^th July 2011. The FTT refused to review its decision and refused permission to appeal by a decision dated 2^nd August 2011.

9.     However, on 30^th August 2011, I granted permission to appeal to the Upper Tribunal. A reason for granting permission appears at paragraph 1 of my reasons, as follows:

“The refusal of permission to appeal by the FTT states that the application was made by Brighton and Hove Council and the appeal number is given as SE855.11.000-3. It also states that a Stay is refused. It is not clear whether these are simply secretarial and/or typological mistakes. Brighton and Hove Council are not involved in this case, the application for permission to appeal is made by the parents, there is no application for a stay, and the Tribunal case number is...not as appears in Judge Aitken’s Order.”

10.  In any event, I arrived at the conclusion that there was an arguable error of law for one or more of the grounds of appeal, and granted permission.

11.  An oral hearing took place before me on 16^th February 2012, when the Appellants were represented by Ms F Scolding of Counsel and the Respondent was represented by Ms S Hannett of Counsel.

 

 

 

 

Grounds of Appeal.

 

12.  There are four grounds of appeal advanced by Ms Scolding; namely

(i) that the FTT erred in its approach to the question of whether A required a Statement, in that it had made errors of law with regard to the meaning of ‘necessary’ and the meaning of ‘resources’;

(ii) that the FTT erred in its approach to A’s progress;

(iii) that the FTT erred in failing to determine whether their conclusions were practicable, and whether the decision would provide A with an ‘appropriate’ rather than merely, an ‘adequate’ education; and

(iv) that the FTT erred in its approach to monitoring.

Preliminary matters

 

13.  Before considering each of these grounds of appeal in turn, I must deal with two preliminary matters. First, I need to deal with a dispute of fact as to what a particular witness for the Respondent (Ms Dixon) said at the FTT hearing. Secondly, I must address the question of how I should approach the evidence which has been adduced by the Appellants in subsequent witness statements that raise issues of fact regarding A’s education which have occurred since the hearing before the FTT and indeed since the decision of the FTT on 5^th July 2011.

14.  The dispute of fact surrounds what was said by Ms Dixon, the SENCO for the School, at the FTT hearing. Unfortunately, the proceedings before the FTT were not recorded, and therefore all that I have is the note of the Chair, Judge Hillier. Her hand written note has been transcribed, and both Counsel agree that the typed version corresponds to the hand written and contemporaneous note that she took of the evidence. I quote directly from the typed Note:

Mr H. We do a lot of work and pay for private lessons  - her peers are doing a lot higher level.

Ms Dixon. Yes, they are working at a higher level. There are 2 MLD children she works with. There’s also a boy with mild aspergers. There are other children with dyslexia type problems. The specialist teaching service is brought in. They have dyslexic training and they do the assessment and make recommendation. They can come in and provide specialist dyslexia teaching. We’ve all had 1 day training.

Ms Hopkins-Dunn. There are resources available IDP 1 day training. It is a practical resource for them to dip into. It is active and practical and on-going.

Question: CM (Mr Marshall, specialist member). What about additional dyslexia teaching?  My view is that A needs a programme – I suggested things which don’t require a specialist dyslexia teacher.

Question: CM. LA says up 32.5 hours because fully allocated. It is very difficult.

15.  The dispute about this part of the evidence can be stated as follows. The Appellants submit that Ms Dixon agreed with the Appellants that A required specialist dyslexia teaching and that it would be ‘very difficult’ for the School to procure this teaching. In contrast, the Respondent submits that Ms Dixon did not say that; rather she said that A did not need specialist support beyond a need for guidance, support and training for School staff. In particular, the Respondent denies that Ms Dixon stated that the guidance, support and training for staff would be ‘very difficult.’

16.  I have read the witness statements by the First Appellant (Ms C) and by the Appellants’ solicitor (Mr Barrowclough) in support of their position, and the witness statement from Ms Dixon and Ms Hopkins (the EP) in support of the position of the LA.

17.  I have to say that an Appellate body such as an Upper Tribunal is badly placed to adjudicate on what was said by witnesses before a tribunal of first instance. In the absence of any transcript, the hand written note of the Chair is the only authoritative guide to the evidence which is adduced.

18.   Authority for this approach appears in Aberdeen Steak Houses Group PLC v Ibrahim [1988] IRLR 420 where Wood J said:

“It is clearly right that where the parties cannot agree between themselves upon the accuracy or inaccuracy of the notes of a court that the version given by the court should remain supreme. In the absence of some such rule it would be impossible to keep any control over the number of continuing issues on the subject.”

19.  Furthermore, I would myself advance the proposition that an Appellant will only be able to raise an arguable error of law, in the sense of perversity in the decision making of the tribunal of first instance, if the hand written note is entirely unambiguous, and if the treatment of that evidence by the decision maker crosses the threshold of perversity.

20.  The FTT treated the evidence of Ms Dixon in this way. First, it stated that the school could fund additional specialist teaching if required from its delegated resources (para 30). Secondly, it stated that the evidence of Ms Dixon was clear that the provision under the Note in Lieu is sufficiently met by the school’s resources (para 31). Thirdly, it said that “The school has extensive delegated resources – to provide up to 32 and half hours per week additional support – so more can be achieved at School Action Plus than a school without delegated funding (para 33). Finally, the Tribunal in its Observations said: “The school conceded that some specialist teacher input is necessary and they have delegated funds to provide this.”

21.  It is my view that each one of those comments is amply supported by the Note of evidence taken by the Chair, and accordingly can in no way be impugned as amounting to an error of law on the basis of a perverse and/or irrational decision on the facts as presented to the Tribunal.

22.  Linked to this preliminary matter is the question of how the Upper Tribunal should approach the evidence adduced by the Appellants that addresses factual matters that have occurred since the FTT’s decision on 5^th July 2011. I have absolutely no doubt that the approach that I should adopt is that which is set out with exact clarity by Sedley LJ in Oxfordshire County Council v GB [2001] EWCA 1358. He said as follows:

9. If reference needs to be made to the evidence for the purposes of a statutory appeal, the ordinary resort is to as much of the documentation and notes of evidence as will help to determine what material basis there was for the impugned part of the decision: see Webb v Anglian Water Authority [1981] ICR 811, South Glamorgan CC v L and M [1996] ELR 400; McManus, Education and the Courts, paragraphs 3-40 to 3-44. Fresh evidence, even on judicial review, has a restricted ambit (see R v Secretary of State for the Environment, ex parte Powis [1981] 1 WLR 584; R v Westminster City Council, ex parte Ermakov [1996] 2 All ER 302) which can be no larger on a statutory appeal. Decisions such as that of Latham J in S v SENT [1995] 1 WLR 1627, 1635, admitting evidence on the question whether there had been any admissible basis for the SENT's decision, may fall within this restricted field, especially since SENT reasons are permitted by the SENT Regulations 1994, reg. 30(2) to be in summary form; but the practice described (without doubt accurately) in McManus, op.cit., paragraph 3-45 of parties submitting evidence at will to the court hearing an appeal against a SENT decision is in our present view unacceptable. The one class of fresh information which the special nature of such appeals may call for is up-to-date evidence about the child's schooling and needs, but purely – as the present case will illustrate - in order to enable relief to take a suitable form.

10. For these reasons we would pay no attention to the evidence that was submitted to the Administrative Court by all three parties. That of the LEA sought to recanvass the facts; that of the tribunal chair sought to advance ex post facto reasons for the written decision; and that submitted by the parents sought to make out a better case for the decision than the tribunal itself had done. Since we have not heard oral submissions on this aspect of the case, what we have said above is based upon the written materials helpfully submitted by both counsel at the court's request at the conclusion of argument. It should not be taken to be a comprehensive consideration of the problem.

23.  This approach has been adopted by the Upper Tribunal in B v Worcestershire County Council [2010] UKUT 292 (AAC). I agree with Ms Hannett’s submission that the Tribunal should not have regard to the evidence in their witness statements from Ms C and Mr Barrowclough that deal with events subsequent to the FTT’s decision, when determining whether or not the FTT’s decision was lawful.

 

 

 

Statutory Provisions.

 

24.  The statutory provisions of the Education Act 1996 that are relevant in this case are as follows:

Part IV Special educational needs

Chapter I Children with special educational needs

Introductory

312 Meaning of "special educational needs" and "special educational provision" etc

(1) A child has "special educational needs" for the purposes of this Act if he has a learning difficulty which calls for special educational provision to be made for him.

(2) Subject to subsection (3) (and except for the purposes of section 15(5)) a child has a "learning difficulty" for the purposes of this Act if–

(a) he has a significantly greater difficulty in learning than 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 education authority, or

(c) he is under the age of five and is, or would be if special educational provision were not made for him, likely to fall within paragraph (a) or (b) when of or over that age.

(3) A child is not to be taken as having a learning difficulty solely because the language (or form of the language) in which he is, or will be, taught is different from a language (or form of a language) which has at any time been spoken in his home.

(4) In this Act "special educational provision" means–

(a) in relation to a child who has attained the age of two, 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) or grant-maintained schools in their area, and

(b) in relation to a child under that age, educational provision of any kind.

Code of Practice

313 Code of Practice

(1) The Secretary of State shall issue, and may from time to time revise, a code of practice giving practical guidance in respect of the discharge by local education authorities and the governing bodies of maintained or grant-maintained schools, or grant-maintained special schools, of their functions under this Part.

(2) It shall be the duty of–

(a) local authorities, and such governing bodies, exercising functions under this Part, and

(b) any other person exercising any function for the purpose of the discharge by local education authorities, and such governing bodies, of functions under this Part,

to have regard to the provisions of the code.

(3) On any appeal under this Part to the Tribunal, the Tribunal shall have regard to any provision of the code which appears to the Tribunal to be relevant to any question arising on the appeal.

(4) The Secretary of State shall publish the code as for the time being in force.

314 Making and approval of code

(1) Where the Secretary of State proposes to issue or revise a code of practice, he shall prepare a draft of the code (or revised code).

(2) The Secretary of State shall consult such persons about the draft as he thinks fit and shall consider any representations made by them.

(3) If he determines to proceed with the draft (either in its original form or with such modifications as he thinks fit) he shall lay it before both Houses of Parliament.

(4) If the draft is approved by resolution of each House, the Secretary of State shall issue the code in the form of the draft, and the code shall come into effect on such day as the Secretary of State may by order appoint.

Special educational provision: general

315 Review of arrangements

(1) A local education authority shall keep under review the arrangements made by them for special educational provision.

(2)  In doing so the authority shall, to the extent that it appears necessary or desirable for the purpose of co-ordinating provision for children with special educational needs, consult the funding authority and the governing bodies of county, voluntary, maintained special and grant-maintained schools in their area.

316 Children with special educational needs normally to be educated in mainstream schools

(1) Any person exercising any functions under this Part in respect of a child with special educational needs who should be educated in a school shall secure that, if the conditions mentioned in subsection (2) are satisfied, the child is   educated in a school which is not a special school unless that is incompatible with the wishes of his parent.

(2) The conditions are that educating the child in a school which is not a special school is compatible with–

(a) his receiving the special educational provision which his learning difficulty calls for,

(b) the provision of efficient education for the children with whom he will be educated, and

(c) the efficient use of resources.

317 Duties of governing body or LA in relation to pupils with special educational needs

(1) The governing body, in the case of a county, voluntary or grant-maintained school, and the local authority, in the case of a maintained nursery school, shall–

(a) use their best endeavours, in exercising their functions in relation to the school, to secure that, if any registered pupil has special educational needs, the special educational provision which his learning difficulty calls for is made,

(b) secure that, where the responsible person has been informed by the local authority that a registered pupil has special educational needs, those needs are made known to all who are likely to teach him, and

(c) secure that the teachers in the school are aware of the importance of identifying, and providing for, those registered pupils who have special educational needs.

(2) In subsection (1)(b) "the responsible person" means–

(a) in the case of a county, voluntary or grant-maintained school, the head teacher or the appropriate governor (that is, the chairman of the governing body or, where the governing body have designated another governor for the purposes of this paragraph, that other governor), and

(b) in the case of a nursery school, the head teacher.

(3) To the extent that it appears necessary or desirable for the purpose of co-ordinating provision for children with special educational needs–

(a) the governing bodies of county, voluntary and grant-maintained schools shall, in exercising functions relating to the provision for such children, consult the local education authority, the funding authority and the governing bodies of other such schools, and

(b) in relation to maintained nursery schools, the local education authority shall, in exercising those functions, consult the funding authority and the governing bodies of county, voluntary and grant-maintained schools.

(4) Where a child who has special educational needs is being educated in a county, voluntary or grant-maintained school or a maintained nursery school, those concerned with making special educational provision for the child shall secure, so far as is reasonably practicable and is compatible with–

(a) the child receiving the special educational provision which his learning difficulty calls for,

(b) the provision of efficient education for the children with whom he will be educated, and

(c) the efficient use of resources,

that the child engages in the activities of the school together with children who do not have special educational needs.

(5) The annual report for each county, voluntary, maintained special or grant-maintained school shall include a report containing such information as may be prescribed about the implementation of the governing body´s policy for pupils with special educational needs.

(6) The annual report for each county, voluntary or grant-maintained school shall also include a report containing information as to–

(a) the arrangements for the admission of disabled pupils;

(b) the steps taken to prevent disabled pupils from being treated less favourably than other pupils; and

(c) the facilities provided to assist access to the school by disabled pupils;

and for this purpose "disabled pupils" means pupils who are disabled persons for the purposes of the Disability Discrimination Act 1995.

(7) In this section "annual report" means the report prepared under the articles of government for the school in accordance with section 161 or, as the case may be, paragraph 7 of Schedule 23.

318 Provision of goods and services in connection with special educational needs

(1) A local authority may, for the purpose only of assisting–

(a) the governing bodies of county, voluntary or grant-maintained schools (in their or any other area) in the performance of the governing bodies' duties under section 317(1)(a), or

(b) the governing bodies of maintained or grant-maintained special schools (in their or any other area) in the performance of the governing bodies' duties,

supply goods or services to those bodies.

(2) The terms on which goods or services are supplied by local education authorities under this section–

(a) to the governing bodies of grant-maintained schools or grant-maintained special schools, or

(b) to the governing bodies of county, voluntary or maintained special schools,

in any other area may, in such circumstances as may be prescribed, include such terms as to payment as may be prescribed.

(3) A local authority may supply goods or services to any authority or other person (other than a governing body within subsection (1)) for the purpose only of assisting them in making for any child in respect of whose education grants are (or are to be) made under arrangements under section 1 of the Nursery Education and Grant-Maintained Schools Act 1996 any special educational provision which any learning difficulty of the child calls for.

(4) This section is without prejudice to the generality of any other power of local education authorities to supply goods or services.

(c) his travelling expenses, and

(d) expenses reasonably incurred by any person accompanying him while he is travelling or staying at the institution.

(4) This section is without prejudice to any other powers of a local education authority.

Identification and assessment of children with special educational needs

321 General duty of local authority towards children for whom they are responsible

(1) A local authority shall exercise their powers with a view to securing that, of the children for whom they are responsible, they identify those to whom subsection (2) below applies.

(2) This subsection applies to a child if–

(a) he has special educational needs, and

(b) it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for.

(3) For the purposes of this Part a local authority are responsible for a child if he is in their area and–

(a) he is a registered pupil at a maintained, grant-maintained or grant-maintained special school,

(b) education is provided for him at a school which is not a maintained, grant-maintained or grant-maintained special school but is so provided at the expense of the authority or the funding authority,

(c) he does not come within paragraph (a) or (b) above but is a registered pupil at a school and has been brought to the authority´s attention as having (or probably having) special educational needs, or

(d) he is not a registered pupil at a school but is not under the age of two or over compulsory school age and has been brought to their attention as having (or probably having) special educational needs.

(4) Regulations may provide that, where an authority are under a duty by virtue of subsection (2) to comply with a request to help a local authority in the making of an assessment under section 323 or a statement under section 324 of this Act, they must, subject to prescribed exceptions, comply with the request within the prescribed period.

(5) In this section "local authority" means a county council, a county borough council, a district council (other than one for an area for which there is a county council), a London borough council or the Common Council of the City of London.

323 Assessment of educational needs

(1) Where a local authority are of the opinion that a child for whom they are responsible falls, or probably falls, within subsection (2), they shall serve a notice on the child´s parent informing him–

(a) that they propose to make an assessment of the child´s educational needs,

(b) of the procedure to be followed in making the assessment,

(c) of the name of the officer of the authority from whom further information may be obtained, and

(d) of the parent´s right to make representations, and submit written evidence, to the authority within such period (which must not be less than 29 days beginning with the date on which the notice is served) as may be specified in the notice.

(2) A child falls within this subsection if–

(a) he has special educational needs, and

(b) it is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for.

(3) Where–

(a) a local authority have served a notice under subsection (1) and the period specified in the notice in accordance with subsection (1)(d) has expired, and

(b) the authority remain of the opinion, after taking into account any representations made and any evidence submitted to them in response to the notice, that the child falls, or probably falls, within subsection (2),

they shall make an assessment of his educational needs.

(4) Where a local authority decide to make an assessment under this section, they shall give notice in writing to the child´s parent of that decision and of their reasons for making it.

(5) Schedule 26 has effect in relation to the making of assessments under this section.

(6) Where, at any time after serving a notice under subsection (1), a local authority decide not to assess the educational needs of the child concerned they shall give notice in writing to the child´s parent of their decision.

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) specify any provision for the child for which they make arrangements under section 319 and which they consider should be specified in the statement.

(5) Where a local authority maintain a statement under this section, then–

(a) unless the child´s parent has made suitable arrangements, the authority–

(i) shall arrange that the special educational provision specified in the statement is made for the child, and

(ii) may arrange that any non-educational provision specified in the statement is made for him in such manner as they consider appropriate, and

(b) if the name of a maintained, grant-maintained or grant-maintained special school is specified in the statement, the governing body of the school shall admit the child to the school.

(6) Subsection (5)(b) does not affect any power to exclude from a school a pupil who is already a registered pupil there.

(7) Schedule 27 has effect in relation to the making and maintenance of statements under this section.

325 Appeal against decision not to make statement

(1) If, after making an assessment under section 323 of the educational needs of any child for whom no statement is maintained under section 324, the local authority do not propose to make such a statement, they shall give notice in writing of their decision, and of the effect of subsection (2) below, to the child´s parent.

(2) In such a case, the child´s parent may appeal to the Tribunal against the decision.

(3) On an appeal under this section, the Tribunal may–

(a) dismiss the appeal,

(b) order the local education authority to make and maintain such a statement, or

(c) remit the case to the authority for them to reconsider whether, having regard to any observations made by the Tribunal, it is necessary for the authority to determine the special educational provision which any learning difficulty the child may have calls for.

The first ground of appeal.

 

25.  The first ground of appeal is that the FTT erred in its approach to the question whether A required a statement, and that it erred in its treatment of resources. Ms Scolding submitted that the Tribunal failed to work out what the resources of the particular school were, and accordingly failed to determine whether a Statement was necessary in A’s case.

26.   It is common ground that the test as set out in s 324 is one of ‘necessity.’

27.  Ms Scolding submitted that there is no case authority for what constitutes ‘necessity’ in the context of s 324. That may well be however because the Code of Practice (DfES/581/2001) issued by the Secretary of State under s 313 makes the position absolutely clear. It is a requirement, indeed a duty, on local authorities and the Tribunal on appeal to have regard to the provisions of the Code.

28.  Paragraph 8.2 of the Code states that “The LEA will make this decision [i.e. whether the nature of the provision necessary to meet the child’s special educational needs is such as to require a Statement] when it considers that the special educational provision necessary to meet the child’s needs cannot reasonably be provided within the resources normally available to mainstream schools ...in the area.”

29.  Ms Scolding submitted in her oral submissions that there is a tension between this paragraph (8.2) and paragraph 8.5. Paragraph 8.5 reads as follows: “Where extra resources are required to enable a school to make the provision specified in statements, the LEA can provide those resources directly from central provision, devolve them to schools on an earmarked basis or delegate them.”

30.  I have to say that I do not consider that there is a tension between the two paragraphs. The paragraphs are dealing with two different scenarios. Paragraph 8.2 addresses situations where there has been a finding that the special educational provision cannot reasonably be provided within the resources normally available to mainstream schools. If it can be reasonably provided within the resources normally available, then it will not be necessary to require a Statement. The resources ‘normally available’ will obviously differ from case to case and from LA to LA. It is, in my view, perfectly proper for a LA (and on appeal, a Tribunal) to take account of money and people being provided by the utilisation of devolved budgets, and in consequence to arrive at a conclusion that a Statement is not necessary.

31.  Paragraph 8.5 is concerned with situations when there has been a Statement, and makes clear that a school can make provision specified in the Statement from resources provided by the LA directly from central funds, from devolved budgets, from earmarked provision or by delegated authority. Paragraph 8.5 is not relevant to the present case, because the LA decided (as did the Tribunal) that a Statement was not necessary given that the ‘provision necessary to meet A’s needs’ could be provided within the resources normally available. In other words, paragraph 8.2 was directly relevant.

32.  I agree with Ms Hammett who submits that the LA (and the Tribunal on appeal) must address two questions in determining whether it is necessary under s 324 to issue a Statement. The first question is whether the special education provision identified as necessary for the child in the assessment carried out under s 323 is in fact available within the resources normally available to a mainstream school. The second question is, if so, can the school reasonably be expected to make such provision from within its resources.

33.  The Tribunal refer to the position of the LA in this way (at para 7) “The LA acknowledge that A has special educational needs, but say that her needs can be met at School Action Plus. [The School] has a delegated budget which means that as a mainstream school it can provide up to 32 and a half hours of learning support per pupil per week if necessary, which is adequate to meet A’s educational provision.” The Tribunal is in effect posing the first question. It heard evidence on these matters and concluded (para 30) that “the school could fund additional specialist teaching if required from its delegated resources” and “The School has extensive delegated resources...so more can be achieved at School Action Plus than a school without delegated funding.”

34.  So far as the second question is concerned, although the Tribunal did not expressly address the question, it clearly follows from a reading of the Decision in its entirety that it must have concluded that the school could reasonably be expected to make such provision from within its resources. It refers in particular to the additional support that has been put in place (para 35).

35.  On the issue of resources normally available, I reject the position maintained by Ms Scolding, although she accepted that it was a bold submission, that where a school relies on a third party (including a LA) to provide any part of a child’s special educational provision it will be necessary to make a statement under s 324, and that when construing ‘necessary’ it is only relevant to have regard to the ‘staffing provision at a school’ and not to moneys available to the school.

36.  Such a submission is simply not justified by a reading of s 324, and I agree with Ms Hammett that ss 317 and 318 are of importance. Section 317 states that the governing body of a school must use its best endeavours in exercising its functions in relation to the school to secure that the special educational provision that a child’s learning difficulty calls for is made. Why should ‘best endeavours’ be limited to the provision of the staff that a school has? There would seem to me to be no reason why there should be such a restriction. It is my opinion that s 318 contemplates that a LA has the power to provide goods and services to a school for a child with special educational needs when that child does not have a statement. 

37.  Furthermore, the Code specifically refers to external support at paras 8.16, 5.54, 5.55, 5.57 and 5.58.

38.  In conclusion on this aspect of the appeal, I agree entirely with the submission made by Ms Hammett at para 54 of her written submissions. She submits as follows: “The primary duty is on the governing body of the school: the LA’s duty is triggered only where the governing body is, in effect, no longer able to discharge its duty...Plainly some schools will have more resources than others, and will be able to provide more by way of special educational provision before it is necessary for the LA to step in than others. Similarly, some LA’s will delegate more of the Schools Budget to schools than others: such schools may be able to provide more by way of special educational provision before it is necessary for the LA to step in than those in LA areas which delegate less of their Schools Budget”.

 

The second ground of appeal.

 

39.  So far as the second ground of appeal is concerned, namely the failure to deal with the issue of progress, I have to say that I am unable to accept the Appellant’s submission. Ms Scolding submits that given the centrality of this issue, the Tribunal were under a duty to resolve what is a dispute of fact. Ms Scolding submits further that there was ‘no coherent basis upon which the Tribunal could have reached the conclusion that it did on this issue, and have failed to provide an explanation as to why they considered that this was the case.’

40.  This is of course a “reasons challenge”. The Tribunal set out the contrasting evidence and preferred the evidence of the witnesses for the LA. In so doing, it complied in my view with the duty to provide reasons as set out in H v East Sussex County Council [2009] EWCA Civ 249; Meek v Birmingham City Council [1987] IRLR 250 and as applied by the Upper Tribunal in MW v Halton BC [2010] UKUT 34 (AAC).

41.  In Meek, Sir Thomas Bingham MR said:

“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 . . ."

 

42.  The need for adequate Reasons was considered in The Queen on the Application of H v Ashworth Hospital Authority and others [2002] EWCA Civ 923 and English v Emery Reimbold & Strick Ltd [2002] EWCA Civ 602. In the latter case, Lord Phillips MR said:

“19. It follows that, if the appellate process is to work satisfactorily, the judgment must enable the appellate court to understand why the Judge reached his decision. This does not mean that every factor which weighed with the Judge in his appraisal of the evidence has to be identified and explained. But the issues the resolution of which were vital to the Judge’s conclusion should be identified and the manner in which he resolved them explained. It is not possible to provide a template for this process. It need not involve a lengthy judgment. It does require the Judge to identify and record those matters which were critical to his decision. If the critical issue was one of fact, it may be enough to say that one witness was preferred to another because the one manifestly had a clearer recollection of the material facts or the other gave answers which demonstrated that his recollection could not be relied upon”.

43.  After careful consideration of Ms Scolding’s submissions, I have concluded that a “reasons challenge” is not made out. I have asked myself the question asked by Mann J in R v Mental Health Review Tribunal ex parte Clatworthy [1985] 3 All ER 699: “Standing back and looking at these reasons and asking, would the applicant, from those reasons, know why the case advanced in detail on his behalf had not been accepted?”

44.  At para 28, the Tribunal state “…we were satisfied on the balance of evidence that Oakthorpe are aware of the issue  [the emotional impact upon A] and that her mixed ability class is appropriate, containing both those on a similar level, and pupils working above and below, and can only be addressed by positive reinforcement to A.” Para 29 specifically refers to the evidence on progress. The tribunal said: “We were satisfied on the evidence of Ms Dixon that the curriculum is being properly and appropriately differentiated for A and that she is making progress. We recognised that there was varying evidence on the issue of progress, however in the last few months A has experienced the changes brought about by the implementation of the Note in Lieu, withdrawal of private tuition and a change of teacher with the resulting change in approach to assessments. We concluded that these changes may very well explain the variance of the results.”

45.  Applying the approach as set out by the question posed by Mann J, I am wholly satisfied that the Tribunal in this case fully complied with this test, and accordingly it made no error of law capable of challenge as to why they came to findings of fact that they did arrive at  relating to A’s progress.

The third ground of appeal.

46.  The next ground of challenge is that the Tribunal erred in failing to see whether or not its conclusions were practicable and would provide A with an appropriate, rather than merely an adequate education. It is submitted by Ms Scolding that the Tribunal focussed on what was adequate. I do not read the decision in this way. At para 37, the Tribunal expressly says: “Having considered all the evidence we concluded that the statement in lieu (sic) is appropriate to meet A’s needs and that a statement is not appropriate at this stage.”

47.  Ms Hammett submitted that as this is a case of an assessment undertaken under s 323, and a decision not to issue a statement, the test of appropriateness in any event does not arise. I do not need to form a view on this issue, because quite clearly the Tribunal took the view that a Statement was not appropriate. It must follow that they also were of the view that a Statement was not necessary.

 

The fourth ground of appeal.

48.  The final ground of challenge concerns the question of monitoring, and I can deal with it summarily. Having decided that post decision evidence cannot form part of any evidence that is before me, I reject this ground of appeal. The suggestion by Ms Scolding that the Tribunal assumed that monitoring could be delivered when, in her submission it could not be, is really an attempt to challenge a decision based on evidence not before the Tribunal of first instance. I agree with Ms Hammett that it is not legitimate to raise these issues in support of an assertion that the Tribunal on 5^th July 2011 erred in law.

 

 

(Signed on the Original)

His Honour David Pearl

Sitting as a Judge of the Upper Tribunal

 

 

8 March 2012