Upper Tribunal (Administrative Appeals Chamber)

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

The DECISION of the Upper Tribunal is to allow the appeal by the Appellant.

 

The decision of the First-tier Tribunal (Health, Education and Social Care Chamber) dated 28 February 2012, following the hearing on 23 February 2012 under file reference SE931/11/00017, involves an error on a point of law.

 

The Upper Tribunal is not in a position to re-make the decision on the appeal against the Respondent’s refusal to make a statement of special educational needs in relation to C. It therefore follows that the case is remitted to be re-heard by a different First-tier Tribunal, subject to the Directions below.

 

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

 

 

 

DIRECTIONS

 

The following directions apply to the re-hearing:

 

(1) The new tribunal should not involve the tribunal judge or members who sat on the last tribunal on 23 February 2012.

 

(2) The new tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal. 

 

(3) These directions may be supplemented as appropriate by later directions by a Tribunal Judge in the First-tier Tribunal (Health, Education and Social Care Chamber). 

 

 

RULING

 

 

There is to be no publication of any matter likely to lead members of the public directly or indirectly to identify the child who is the subject of this appeal.

 

This ruling is made under rule 14 of the Tribunal Procedure (Upper Tribunal) Rules 2008.

 

 

 

REASONS FOR DECISION

Introduction

1. This appeal concerns a decision of the First-tier Tribunal (“the tribunal”) about the special educational needs of a young boy now aged nearly 14 (“C”). The local authority (“the Council”) carried out an assessment of those needs and issued a non-statutory Note in Lieu rather than a statutory statement of Special Educational Needs (SEN). The tribunal dismissed the mother’s’ appeal against that decision following an oral hearing on 23 February 2012. I am allowing her further appeal for the reasons that follow. 

 

2. Following my grant of permission to appeal, I held an oral hearing of the appeal to the Upper Tribunal at Field House in London on Monday 4 March 2013.  C’s mother was present and represented by Mr David Lawson of Counsel; the Council was represented by Ms Karen Steyn of Counsel. Neither advocate had appeared at the hearing before the tribunal below. I am grateful to them both for their helpful submissions.

 

The background to the appeal to the First-tier Tribunal

3. C is an intelligent boy; his special educational needs arise from his literacy difficulties (dyslexia) together with the difficulties arising from his diagnosis of Asperger’s Syndrome. He started senior school in September 2010. Although he was placed on School Action Plus, his mother was concerned that he was not getting sufficient specialist support and pressed for the Council to issue him with a SEN statement.

 

4. The Council conducted an assessment of C’s special educational needs under section 323 of the Education Act 1996. In July 2011 the Council informed C’s mother that, in its view, his needs could be met appropriately from resources available within the school at School Action Plus. The Council accordingly issued a non-statutory Note in Lieu. In August 2011 C’s mother appealed to the tribunal.

 

The First-tier Tribunal’s hearing and decision

5. The tribunal held an oral hearing on 23 February 2012. C’s mother was assisted by a volunteer from the Council’s parent partnership organisation, but called no witnesses. The Council was represented by a SEN officer, who called three witnesses.

 

6. The tribunal dismissed the appeal. In summary, the tribunal’s assessment of the evidence was that it did “not cause us to conclude that C’s needs will only be met if we order the Local Authority to issue a Statement” (tribunal decision, paragraph [24]). Having considered the various aspects of C’s progress at school, the tribunal found that:

 

“We do not find convincing evidence in those areas that C’s needs could only be met by the Local Authority making a statement. These areas should all be addressed from within the normal resources available to a school” (paragraph [20]).

 

The grounds of appeal to the Upper Tribunal

7. There are three grounds of appeal. The first relates to the correct test to be applied in deciding whether a SEN Statement is needed. The second is a complaint that the tribunal failed to make sufficient findings of fact about the arrangements in place in the Council or at the school. The third concerns the tribunal’s omission to consider the implications of the school’s imminent conversion to Academy status.

 

8. In short I do not accept the first ground of appeal. I conclude that the second ground of appeal is made out in part. I find the third ground of appeal to be proven. I therefore allow the appeal. I deal with the issue of further disposal (or “relief”) below.

 

9. Before turning to those three grounds of appeal, I should first deal with one preliminary matter. On the Thursday before the Upper Tribunal hearing on the following Monday, the Appellant’s solicitors lodged an 8-page “updating statement” by C’s mother, with nearly 30 pages of supporting documents. This set out various ways in which it was said that, since the hearing below, even the provision promised in the Note in Lieu had not fully materialised. Ms Steyn objected to this evidence on the basis that it had been served late, she had not been able to take proper instructions on its contents and it was in any event contested.

 

10. I simply make three short points. First, I understand the mother’s anxiety that everything that she can do for C is done on his behalf. However, whatever may or may not have transpired in fact since the hearing before the lower tribunal cannot help me answer the question whether that tribunal erred in law in any respect. Second, the case management directions for the oral hearing before the Upper Tribunal made no provision for any such “updating statement” to be supplied, but simply for the exchange of skeleton arguments on the legal issues. Third, I follow as correct the approach helpfully set out by HH Judge Pearl in NC & DH v Leicestershire County Council [2012] UKUT 85 (AAC) at paragraphs 22 and 23. I therefore do not have regard to that evidence which deals with events subsequent to the tribunal’s decision when determining whether or not that tribunal’s decision involves an error of law. Insofar as is necessary, I formally exclude the “updating statement” with its exhibits under rule 15(2)(b) of the Tribunal Procedure (Upper Tribunal) Rules 2008 (SI 2008/2698).

 

Ground 1 – the failure to apply the correct test or reaching an unreasonable decision on the test applied: amount of provision

The submissions on behalf of the Appellant

11. Mr Lawson’s submissions on the first ground of appeal took as their starting point three propositions. First, that section 324 of the Education Act 1996 and the allied Code of Practice provided for an objective test to govern the issue of SEN statements, so as to ensure consistency of treatment, not just within local authority areas but also across the country. Second, that the Code of Practice set out “markers” for when a statement was, or was not, likely to be appropriate (see especially paragraph 8.13). Third, that the statutory test is about the necessity to specify provision, and is not about funding or whether the relevant provision is or is not being delivered. Mr Lawson further argued that the provision for C which the tribunal found to be in place was at a level beyond School Action Plus and, properly construed, fell within the right-hand column of paragraph 8.13 of the Code of Practice and so mandated the issue of a SEN statement for C. In summary, he concluded that the tribunal had (i) failed to apply the correct test; (ii) failed to give reasons, other than the Council’s financial arrangements, why the provision for C did not indicate that a statement was appropriate; and (iii) reached an unreasonable conclusion that the provision involved did not meet the markers in paragraph 8.13 for the issue of a statement.

 

The submissions on behalf of the Council

12. Ms Steyn’s submissions on the first ground of appeal took as their starting point the principle that the 1996 Act and the Code of Practice envisage differing levels of intervention, and that issuing a Statement is at one end of the spectrum of methods to address special educational needs. She argued that the authorities demonstrated that the issue of “necessity” under section 324 was to be determined on a case by case basis by local authorities. Further, paragraph 8.13 of the Code of Practice was illustrative, rather than prescriptive, of both the provision and the mode of delivery of such provision. In addition, the crucial part of the test under section 324 was whether it is necessary for the local authority (her emphasis added) to determine the provision and make a SEN statement. Ms Steyn submitted that a reasons challenge was unfounded – the tribunal had applied the correct necessity test, had resolved (in favour of the Council) issues where there was conflict over the level of provision required and had found that the provision could be met from the normal resources available to a school. Likewise, she rejected any suggestion that the tribunal had reached a perverse conclusion, as the decision was one open to them on the evidence and their findings.

 

The Upper Tribunal’s analysis

The statutory framework

13. An assessment of educational needs under section 323 of the Education Act 1996 presupposes both that a child has special educational needs and it “is necessary for the authority to determine the special educational provision which any learning difficulty he may have calls for” (section 323(2)). Where the authority is “of the opinion” that the child “falls, or probably falls,” within those criteria, it must serve a notice and conduct such an assessment (section 323(1) and (3)). Section 324(1), which Mr Lawson neatly described as the engine-room of Part IV of the 1996 Act, then provides that:

“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.”

 

14. There is, of course, then a right of appeal under section 325 to the First-tier Tribunal against the decision not to make a statement, a right exercised in this case.

 

15. Furthermore, the Secretary of State has issued a Code of Practice under section 313(1), “giving practical guidance in respect of the discharge by local authorities … of their functions under [Part IV]”. Where relevant, the tribunal is required to have regard to that Code (section 313(3)). In particular, the Code advises (at paragraph 8.2) that:

 

“The LEA will make this decision 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 and early education settings in the area."

 

16. In addition, paragraph 8.13 of the Code, having given examples of “possible approaches”, states that “the LEA's conclusions will, of course, depend upon the precise circumstances of each case, taking into account arrangements for funding schools in the area.” The Code concludes that “the decision as to whether to make a statement should be determined by the child’s identifiable special educational needs in the context of arrangements for funding schools in the area” (paragraph 8.14).

 

The case law

17. The previous legislation provided that, where an assessment had been carried out, the local authority were required to issue a SEN statement “if they are of the opinion that they should determine the special educational provision that should be made for him” (Education Act 1981, section 7(1)). This was held to vest local authorities with a discretion (see R v Hereford and Worcester County Council and Another ex parte Lashford (Court of Appeal, 1987 WL 1455350, 12 May 1987). Section 324 of the Education Act 1996, with its reference to necessity, involves at least a change of emphasis.

 

18. The provisions of the 1996 Act were considered in some detail by HH Judge Waksman QC in London Borough of Islington v Lao & Another [2008] EWHC 2297 (Admin). At paragraph 5 he observed as follows:

 

“It is common ground between the parties that the decision to make a statement is a very significant one for all parties, not least because the result will be that the local authority is then committed to providing those particular provisions which it has determined are required in the light of the child's learning difficulties which may or may not require its funding. It comes at one end of a spectrum of need with which the local authority concerns itself. There are many children within the remit of a local authority who may have learning difficulties and require some form of special educational provision, but this does not in and of itself mean that a statement will be required. Hence, of course, the word ‘necessary’ in section 324(1). Without a conclusion by the local authority that a statement is necessary, there is no duty to make one.”

 

19. The judgment of HH Judge Waksman QC then helpfully outlined the key provisions of the guidance on issuing SEN statements, contained in chapter 8 of the Code of Practice (at paragraphs [6]-[9]).

 

20. The most recent authority in point is the decision of HH Judge Pearl in NC & DH v Leicestershire County Council [2012] UKUT 85 (AAC). There, as here, the local authority had carried out a section 323 assessment but had issued a non-statutory Note in Lieu rather than a statement under section 324. HH Judge Pearl explained that paragraph 8.2 of the Code:

 

“… 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” (at paragraph 30).

 

21. According to HH Judge Pearl, the test of necessity under section 324 required two questions to be answered:

 

“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” (at paragraph 32).

 

22. HH Judge Pearl also held (at paragraph 36) that section 324 had to be read in the light of sections 317 and 318 of the 1996 Act. In particular, section 317 requires a school’s governing body to use its “best endeavours” in exercising its functions to secure that the special educational provision that a child’s learning difficulty calls for is made, while section 318 enables local authorities to provide goods and services to schools in connection with special educational needs. In that context HH Judge Pearl expressly agreed (at paragraph 38) with the following submission made on behalf of the authority in that case:

 

“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 LAs 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.”

 

Conclusions on the parties’ submissions as to the correct test under section 324

23. I do not accept Mr Lawson’s primary argument that section 324 establishes a wholly objective test of necessity, which divests the local authority of any meaningful exercise of discretion in deciding whether or not to issue a statement following a section 323 assessment. I reach that conclusion for three reasons.

 

24. The first is Ms Steyn’s point of statutory interpretation is well made – the legislative formula is whether “it is necessary for the local authority to determine the special educational provision” (emphasis added), and not simply that “it is necessary to determine the special educational provision”. Whilst the old statutory test dependent on whether “they are of the opinion…”, giving councils considerable latitude, has been repealed, the current statutory formulation means that the local authority still retains a discretion in deciding whether a statement is “necessary”.

 

25. The second is that on appeal the tribunal must have regard to the Code of Practice (section 313)), and that guidance plainly contemplates that outcomes may differ according to funding arrangements and local circumstances (see especially paragraphs 8.8 – 8.14).

 

26. The third is that Mr Lawson’s analysis goes against the grain of the authorities (especially London Borough of Islington v Lao & Another and NC & DH v Leicestershire County Council). I agree with Ms Steyn that NM v London Borough of Lambeth (SEN) [2011] UKUT 499 (AAC) is not directly in point as that case was concerned with a refusal to conduct an assessment under section 323. I do not read section 324, when read with the Code of Practice, as promising that like cases will inevitably have like outcomes, irrespective of where they occur. To that extent at least, it is not an objective test in terms of delivery (as opposed to its application). Rather, it seems to me that section 324 provides for a standard test to be applied nationwide (or across England at least), but not one that guarantees that outcomes will be identical, given e.g. local funding differences.

 

27. Mr Lawson’s secondary submission was that, in any event, C’s circumstances met the criteria or markers set out in the second column of paragraph 8.13, and so a statement was mandated – the provision necessitated for C included “regular and direct teaching by a specialist teacher, daily individual support from a learning support assistant” and “the regular involvement of non-educational agencies”. As Ms Steyn noted, this was in reality a perversity challenge, which inevitably faces a high threshold. I also accept her argument that Mr Lawson’s submission was, in effect, reading a degree of compulsion into the Code of Practice which simply was not there. Paragraph 8.13 starts by making it clear that “the following are examples of possible approaches”; it continues by noting that, if the markers are made out, then “the LEA may conclude that the school could not reasonably be expected to make such provision within its own resources and that the nature of the provision suggests that the LEA should formally identify in a statement the child’s needs (etc)…” (emphasis added). This is predominantly permissive not prescriptive language.

 

The application of section 324 by the tribunal in the present case

28. I conclude that the main thrust of the first ground of appeal does not succeed. The tribunal in the present case was plainly aware of the test of necessity under section 324 and referred to the relevant paragraphs in the Code of Practice. It applied the proper legal test (subject to ground 3 below). As guided by the Code of Practice, it had regard to local funding arrangements. Its decision that a statement was not needed was not so unreasonable as to be perverse.

 

29. I have deliberately referred here to the “main thrust” of the first ground of appeal. I say that as Mr Lawson’s submissions on this first ground also included an argument alleging a failure by the tribunal to find sufficient facts, and/or a failure to give adequate reasons, which he recognised overlapped with the second ground of appeal. These issues are accordingly best dealt with under the next heading.

 

Ground 2 – the failure to make findings of fact about the financial arrangements in Oxfordshire or at the School or to consider whether the provision being made was “secure”

The submissions on behalf of the Appellant

30. Mr Lawson’s main argument on this second ground of appeal was simply that the tribunal had not found sufficient facts. In particular, Oxfordshire claimed to be a local authority with a high degree of budgetary devolution to schools, but the tribunal had failed to find facts as to either the nature of the system of delegation in place or as to the type or level of provision which can be made under that regime. It was further argued that the tribunal had failed to consider whether the provision was secure and sustainable. For example, and most notably, the tribunal relied on the provision of 1:1 LSA (learning support assistant) for C and yet this type of support was not mentioned in the Note in Lieu and had been only patchily implemented in practice, even before the tribunal hearing.

 

The submissions on behalf of the Council

31. The Council’s initial response to the appeal treated this ground of appeal as essentially a reasons challenge. It referred to the well-known case law on the appropriate test for adequacy of reasons. The Council’s submission argued that the case law suggested “that a generous approach must be taken to the interpretation of the FTT’s decision, and that the decision of the FTT does not fall short of what is required in relation to key issues between the parties” (Reply at paragraph 17). Ms Steyn developed those arguments in her oral submissions. In her analysis, the issue of security of provision was not determinative – the key question was rather whether the provision C needed could reasonably be provided by a mainstream school in the absence of a statement. She contended that whilst there were some aspects of the tribunal’s reasoning that might have been developed, the tribunal had identified and resolved the key differences between the parties. As such, she submitted, the tribunal had explained why it had decided the case the way it had.

 

The Upper Tribunal’s analysis

32. There is no disagreement between the parties as to the proper legal test to apply as regards the adequacy (or not) of a tribunal’s reasons. In short, the purpose of a tribunal’s reasons “remains what it has always been, which is to tell the parties in broad terms why they lose or, as the case may be, win” (UCATT v Brain [1981] IRLR 225 at 227 per Donaldson LJ; see also Meek v Birmingham City Council [1987] IRLR 250. That basic test applies equally in special educational needs cases (W v Leeds City Council and SENDIST [2005] EWCA Civ 988, [2006] ELR 617 at [52]-[54] per Ward LJ, H v East Sussex County Council [2009] EWCA Civ 249, [2009] ELR 161 at [16]-[19] per Waller LJ and now DC v London Borough of Ealing [2010] UKUT 10 at [38]-[46]).

 

33. The case law also shows that the duty to provide adequate reasons must be seen in the context of the proceedings in the case as a whole. So the parties’ prior knowledge of the nature of the dispute and the relevant contentions on appeal will be relevant in deciding whether the reasons are adequate. It follows that the reasons do not need to be spelt out in the level of detail required for a stranger to the dispute (see e.g. Derby Specialist Fabrication Ltd v Burton [2001] ICR 833 at paragraph 32 per Keene J (as he then was)). The point was put in this way by Judge Ward in SG v Somerset County Council [2012] UKUT 353 (AAC) at paragraph 9:

 

“... 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.”

 

34. Mr Lawson makes the point that in the present case the tribunal failed to make specific findings of fact about the system of delegation in place in the local authority. That is true, but in the light of the test as outlined above I do not regard that as fatal. The Council’s case, in its response to the appeal, was that its “schools have full SEN funding and can support students to the level of 25 hours per week if advice from external professionals indicates that this will be necessary”. The tribunal’s conclusion that C’s needs could “be addressed from within the normal resources available to a school” indicated that it accepted that submission and in effect incorporated that finding of fact about the arrangements for budgetary devolution. To that extent I do not accept the argument that the tribunal failed to find sufficient facts or provide adequate reasons.

 

35. There is, however, a second string to Mr Lawson’s bow on Ground 2. He further submits that the tribunal failed to consider whether the provision being made was secure. The notice of appeal referred to various areas of provision in this respect, including the question of 1:1 LSA support. It is important in this context to understand the chronology of the case.

 

36. The Note in Lieu was issued in July 2011, at the end of the first year of senior school. Under the heading “Special educational provision” it set out various objectives for C and a series of strategies under the sub-headings “approaches to learning”, “social and emotional” and “monitoring”. There was no reference in this document to 1:1 LSA support. A meeting subsequently took place as a result of which the Council produced a document entitled “Strategies to support C for September 2011” (“the Strategies document”). The “strategies” (or provision) in this document were both more extensive and more specific than the rather generalised statements in the Note in Lieu. It included, for example, 1:1 support in Maths, English and IT for 20 lessons a fortnight. The Appellant’s statement of appeal to the tribunal, prepared in January 2012, argued that these subsequently agreed strategies, post-dating the Note in Lieu, were not being implemented.

 

37. In its decision, the tribunal noted (at paragraph [6] of its decision) that the Council had agreed at the hearing to make two amendments to the Note in Lieu (which did not include the further matters covered by the Strategies document). Referring to the Appellant’s evidence, the tribunal then described “the thrust of her concern is that what was promised has not materialised” (paragraph [7]). In an important paragraph, the tribunal then went on to find as follows:

 

“[8]. [The Appellant] is concerned that the provision made for C does not include full time support by a Learning Support Assistant (LSA) in all lessons. The purpose of this would be to pre-emptively identify factors which trigger C’s anxiety. [The SENCO] stated that the support allocated to C in weeks A and B of his timetable was in place, save when a LSA was off sick or invigilating exams. This amounts to ten hours and fifty minutes in class, one tutor time session per week with his Key Worker, so a total of eleven hours and ten minutes (page 390/391 of the bundle). The total included three sessions per week spent on a one to one basis, concentrating on supporting C’s literacy using strategies identified by the educational psychologist to improve his reading comprehension. She did not agree that C needed full time support. Her view was that C did not always want the support of a LSA and they worked with him to identify when it would be helpful to him to have that support.”

 

38. The tribunal noted the Appellant had provided a copy of an independent educational psychologist’s report that recommended that C needed a higher level of individual support (paragraph [10]). The tribunal also noted the Council’s case as being that “all recommendations have been implemented” (paragraph [11]), and it then proceeded to review C’s progress, adopting an inquisitorial stance (paragraphs [12]-[16]).

 

39. The tribunal’s overall conclusions are set out above (at paragraph 6). The tribunal accepted that the Council had implemented the strategies suggested by the independent educational psychologist and the occupational therapist (paragraph [18]). The tribunal acknowledged the Appellant’s anxieties but found that “her perception does not accord with that of the school or C himself” (paragraph [22]). Finally, the tribunal rejected the Appellant’s “argument that giving him a full time TA would better resolve these issues, or even that if this was the case that a statement would be necessary to implement this” (at paragraph [24]). Thus:

 

“[25]. In summary our conclusion is that the evidence overall and the areas we spent time investigating do not cause us to conclude that C’s needs will only be met if we order the Local Authority to issue a statement. Nor do we conclude that there is such strong evidence that this would be an appropriate case to make observations and remit the case to the Local Authority to reconsider”.

 

40. Ms Steyn submits that the findings of fact and reasons are sufficient or adequate in the circumstances, even if they could have been more fully expressed in places. In her skeleton argument she described this ground of appeal as “a dressed-up attempt to submit new evidence to the effect that since the FTT’s decision C has not received all the provision that the FTT were told he would receive.” She contends that the Appellant’s concern before the FTT was the same – namely that what had been promised had not materialised – and that the FTT found, against the Appellant, that the provision had been implemented.

 

41. I accept, of course, that I cannot have regard to events that have taken place since the hearing below in order to establish whether or not the tribunal erred in law (see paragraph 10 above). However, on balance I have come to the view that the tribunal’s reasons do not meet the required standard. The tribunal’s decision contains very little by way of findings of fact and reasons as to the question of 1:1 LSA support. This was not contained in the July Note in Lieu, and was apparently agreed in the September Strategies document. There are no clear findings of fact about when the 1:1 support started, why it was introduced, how it was funded (although the inference is that it was met through the school’s own resources) and the extent of any problems in its implementation. The latter point was important as if the 1:1 provision was missing (otherwise than on an occasional basis), that in turn would have a bearing on whether it could properly be supported from within the school’s own resources.

 

42. This omission may stem from the way in which the tribunal characterised the Appellant’s case in paragraph [7] of the decision (see paragraph 37 above). The Appellant’s case, however, was not simply that what had been promised in the Note in Lieu had not materialised. Rather, her argument was that what had been promised in the Note in Lieu and then enhanced by the more specific provision promised in the Strategies document had not materialised. Ms Steyn argues that the tribunal dealt adequately with the allegation that implementation had been patchy – it had concluded that the relevant strategies had been implemented and so any need to make further findings of fact as regards the sustainability of that provision fell away. I disagree. Certainly the tribunal accepted that implementation had taken place (see e.g. decision, paragraph [17]), but it did not provide a sufficient foundation in terms of findings of fact and reasons to support that conclusion. I also accept that the tribunal made a finding that the Appellant’s “perception does not accord with that of the school or C himself”. However, the example given was in relation to telephoning home about incidents at school (paragraph [22]), and this does not relieve the tribunal of the need to make more specific findings of fact about the level of provision both promised and in fact delivered.

 

43. To the extent set out in the previous two paragraphs, I find Ground 2 made out and conclude that the tribunal’s decision lacks adequate reasons and so involves an error of law.

 

Ground 3 – the failure to consider the implications of Academy conversion

The submissions on behalf of the Appellant

44. As the notice of appeal put it very simply, “the case about the adequacy of local authority funding was put to the Tribunal on a basis which would persist for about one week after the hearing”. The tribunal held its hearing on 23 February 2012. A week later, on 1 March 2012, the school became an Academy. The tribunal was unaware of this fact. The notice of appeal to the Upper Tribunal argued that there were two consequences of conversion to Academy status – both the funding system changed and the system of accountability changed. Mr Lawson submitted, arguing by analogy from T v Islington London Borough Council [2001] EWHC 1029 (Admin), R (on the application of F) v London Borough of Croydon and Another [2006] EWHC 2368 (Admin) and JS v Worcestershire County Council [2012] UKUT 451 (AAC), that the change of status was a relevant factor that should have been drawn to the tribunal’s attention as it could have affected the outcome. He pointed out that in its new guise the school was independent of the Council and lost automatic access to local authority services. At the very least, he submitted, the Academy should have been asked to confirm its resourcing of, and arrangements for, the provision of special educational needs for children such as C.

 

The submissions on behalf of the Council

45. Ms Steyn argued that there was no reason why the Council representative at the hearing before the tribunal should have mentioned the change in status, and there had been no onus on her to do so. The present case was not analogous on its facts to R (on the application of F) v London Borough of Croydon, where the tribunal had in effect been misled on a relevant point. The change of status did not make any difference in practice, as there were still mechanisms in place for the funding and delivery of SEN provision. There was no reason to suppose that the tribunal might have found that the school as a maintained school could have reasonably provided for C’s special needs in the absence of a statement on one day but that on the very next day that finding had no validity simply because of the change in status to being an Academy. The provision that C needed was supported from within the school’s own resources, whether it was fully in the maintained sector or freestanding as an Academy.

 

The Upper Tribunal’s analysis

46. In my view there are three discrete but inter-connected questions that need to be addressed in considering this ground of appeal: (1) did the tribunal need to know about the imminent conversion to Academy status?; (2) should the Council have informed the tribunal about that impending change of status?; and (3) could it have made any difference to the outcome if it had?

 

Did the tribunal need to know about the imminent conversion to Academy status?

47. As to the first question, I conclude that the tribunal did need to know that the school was, within days, going to become an Academy. I say that for two inter-related reasons.

 

48. First, a Note in Lieu or a SEN statement is, to use a now hackneyed phrase, a “living instrument”. It is as much – if not more so – a forward-looking rather than a historic document. In that context, it was important for the tribunal to be informed of the impending change in the school’s status. It is well established that the tribunal stands in the shoes of the local authority, albeit some months on, and has to re-evaluate the relevant evidence in the light of current circumstances (see e.g. London Borough of Bromley v Special Educational Needs Tribunal [1999] ELR 260; although that case was about the contents of a statement, the same general principle applies; see to similar effect Wilkin v Goldthorpe and Coventry City Council [1998] ELR 345 and more recently OR v London Borough of Ealing [2012] UKUT 211 (AAC)). These cases were not cited in argument before me but the underlying principle is well-established in education law.

 

49. Second, the fundamental basis of the Council’s case was that C’s special educational needs were appropriately addressed through School Action Plus and could be met within the resources ordinarily available to the school, so making a statement unnecessary. The Council sought to make out that case in its response to the appeal in October 2011. The fact that that delegated system of funding had just days left to run by the time of the hearing in February 2012 was a material consideration which the tribunal needed to know about.

 

Should the Council have told the tribunal about that impending change of status?

50. As to the second question, I am in no doubt that the Council should have informed the tribunal, either in advance of the hearing or at the hearing, about the imminent conversion. Although I accept Ms Steyn’s point that the factual background of R (on the application of F) v London Borough of Croydon and Another was different, the observations of Sullivan J. (as he then was) about the nature of the proceedings before the tribunal were of more general application. Whilst recognising that the proceedings were partly adversarial, Sullivan J. held (at paragraph 11) that:

 

“… the role of an education authority as a public body at such a hearing is to assist the Tribunal by making all relevant information available. Its role is not to provide only so much information as will assist its own case. At the hearing, the Local Education Authority should be placing all of its cards on the table, including those which might assist the parents' case. It is not an adequate answer to a failure to disclose information to the Tribunal for a Local Education Authority to say that the parents could have unearthed the information for themselves if they had dug deep enough.”

 

51. I do not read that final sentence, which deals with a particular argument on the facts of that case, as qualifying the generality of the previous sentence about the local authority placing all of its cards on the table. In the present case I find that it is not an adequate answer to a failure to disclose information to the tribunal for the Council to say that the Appellant, a litigant in person assisted by a volunteer from the parent partnership, should have raised the matter at the hearing and is precluded from doing so now. It is not an adequate answer because it fails to have regard to the overriding objective of dealing with cases fairly and justly, bearing in mind in particular the lack of equality of arms as between the Appellant and the Council.

 

52. Ms Steyn submits that there was no onus on the (legally unqualified) Council representative at the hearing to have mentioned the change in status. The Council was represented at that hearing by its SEN Officer, whose witnesses were an educational psychologist, an advisory teacher on ASD and the school’s SENCO. It is entirely possible, I accept, that the Council’s SEN officer, presumably based at County Hall, was herself unaware of this particular school’s impending conversion to an Academy. I will assume for present purposes that she did not know. I say that as the authority has a large number of schools and this particular information may not have been known to her as part of her normal and probably fairly tightly defined job duties. I assume that the SENCO was aware, given that she worked in the school in question, but she may understandably have thought her role as a witness was simply to answer the questions asked of her at the hearing rather than to volunteer information, especially on budgetary matters outside her expertise and “above her pay grade”. Accepting all that, however, the answer is that the Council should have had a system in place so that someone in the authority knew and could have advised the tribunal at an earlier stage of the planned change. This could have been done, for example, by way of an application to the tribunal to lodge further evidence relating to the new funding arrangements shortly to come into effect.

 

Could it have made any difference to the outcome if the tribunal had been informed?

53. The third question is whether it could have made any difference to the outcome if the tribunal had been apprised of the change in status. In the course of oral argument I was taken to the standard Funding Agreement (FA) for “Single Academy Model Mainstream” (version 7, December 2012), which counsel both assumed to be the version in force in this instance (and certainly there is no suggestion that the present case involved one of the old-style Academy agreements, as was the case in SC v The Learning Trust (SEN) [2012] UKUT 214 (AAC)). In this context I also note in passing that section 1(7) of the Academies Act 2010 provides that “Academy arrangements … must include provision imposing obligations on the proprietor of the school that are equivalent to SEN obligations” (in turn defined by section 1(8)).

 

54. Mr Lawson pointed out that under section 49(5) of the School Standards and Framework Act 1998 the local authority remains the owner of funds delegated to a maintained school, and the governing body or head teacher simply acts as the authority’s agent. The maintained school then has the power to spend its delegated budget as it sees fit, subject to any restrictions imposed by the local authority (section 50(3)). In contrast, Academies are independent schools that receive a General Annual Grant (GAG) from the Secretary of State (FA clause 41), which is “equivalent to that which would be received by a maintained school with similar characteristics” (FA clause 42(a)). An Academy may also receive funding in respect of statemented provision (FA clause 63). However, the Academy would lose direct access to Council resources and services. The lines of accountability were also changed.

 

55. Ms Steyn’s fundamental point was that although the conversion to an Academy changed the funding framework, it did not alter the underlying methodology as regards the quantification of that funding, which was that the Academy would receive an equivalent level of support (FA clause 42), albeit via a different route. Similarly, although the accountability mechanisms had changed, there were still accountability mechanisms in place.

 

56. The question I have to answer is whether the change in status could have made a difference, not whether it would have made a difference. As Wilson J (as he then was) put it in T v Islington London Borough Council [2001] EWHC 1029 (Admin), citing Ali v Kirklees Metropolitan Borough Council [2001] EWCA Civ 582, “where there had been an innocent withholding of information from a tribunal of information about a school or other establishment the question of law was whether the information, if disclosed to the tribunal, had been ‘capable of having made a difference’ to the result” (at paragraph 37). That is a less demanding test than whether the information would (necessarily) have made a difference.

 

57. The Council’s response to the notice of appeal argues that the tribunal did not need to consider either the adequacy or sustainability of local authority funding, as this was not relevant under section 324. That cannot be right as a general statement, not least given the guidance in the Code of Practice at paragraph 8.14 (see paragraph 16 above). The statutory test under section 324 is whether “it is necessary for the local authority to determine the special educational provision”, taking into account the section 323 assessment and the parent’s representations and the factors identified in the Code of Practice.

 

58. Furthermore, while equivalence of funding is certainly an important factor, resourcing is not the only factor in making a decision on a section 324 appeal. The question is whether the factor in issue is one that can reasonably be regarded as impacting on the question of necessity under section 324. Neither the statute nor the Code of Practice provides an exhaustive account of all such factors. For example, in other situations the fact that the child comes from service family, or lives in a travelling community, and so be highly mobile, may be of particular significance in deciding whether a statement is “necessary” under section 324. It is conceivable that it may tip the balance in a given case. That is one example of a relevant factor when determining what is necessary. In my assessment the move to being an Academy, with the inevitable changes in funding, accountability and enforcement, needed at least to be considered. Through no fault of its own, the tribunal in this case did not actually determine the question of necessity in the light of the conversion to Academy status. On the facts of this case, that amounts to an error of law.

 

Conclusion and disposal of the appeal to the Upper Tribunal

59. For the reasons set out above, the decision of the tribunal involves an error of law as regards ground 2 (at least in part) and ground 3. I must therefore allow the appeal. It is also appropriate to set aside the decision of the tribunal (Tribunals, Courts and Enforcement Act 2007, section 12(2)(a)).

 

60. The question then arises as to whether further relief to direct. Mr Lawson urged me, if the appeal were allowed, to direct that the Council issue a statement of special educational needs for C. He pointed out the length of time that these proceedings had already taken. He referred to Judge Mark’s decision in NM v London Borough of Lambeth (SEN) [2011] UKUT 499 (AAC) (see especially paragraph 22) as an example of a case where the Upper Tribunal had properly re-made the decision under appeal itself. Ms Steyn submits that if I am against her on either of grounds 2 or 3 then the proper course is to remit to the FTT for a re-hearing.

 

61. I appreciate that this case has already been subject to delay, which is plainly undesirable where a young person’s education is involved. However, I agree with Ms Steyn that the proper course of action is remittal to a new tribunal. In my view NM v London Borough of Lambeth (SEN) is plainly distinguishable, as the issue there was whether or not there should be an assessment under section 323, not whether or not there should be a statement under section 324. The latter question involves more complex factual issues requiring the shared legal and especially educational expertise of the First-tier Tribunal. I therefore direct a re-hearing.

 

62. In those circumstances it is right that detailed directions for the re-hearing should be left to a Judge of the Health, Education and Social Care Chamber of the First-tier Tribunal, perhaps having considered any further submissions that the parties wish to make on such practical matters.

 

63. Finally, I just make the obvious point that I express no view either way as to whether it is necessary within section 324 for C to have a SEN statement. So the fact that this appeal has succeeded on a point of law should not be taken as any indication of the likely outcome on the re-hearing before the First-tier Tribunal. The following directions apply to the re-hearing:

 

(1) The new tribunal should not involve the tribunal judge or members who sat on the last tribunal on 23 February 2012.

 

(2) The new tribunal must consider all the evidence afresh and is not bound in any way by the decision of the previous tribunal. 

 

(3) These directions may be supplemented as appropriate by later directions by a Tribunal Judge in the First-tier Tribunal (Health, Education and Social Care Chamber). 

 

Signed on the original Nicholas Wikeley

on 11 March 2013 Judge of the Upper Tribunal