HS/3120/2014

 

DECISION OF THE UPPER TRIBUNAL

(ADMINISTRATIVE APPEALS CHAMBER)

 

Decision

 

1. Permission to appeal is granted to the appellant parent (to the extent indicated below) but this appeal does not succeed. I confirm the decision of the First-tier Tribunal (Health, Education and Social Care Chamber) sitting in London and made on 14^th April 2014 (written reasons signed) under reference SE207/13/00016 after hearings on 24^th February and 3^rd April 2014.

 

Hearing

 

2. I held an oral hearing of this appeal at Field House (London) on 26^th March 2015. The appellant (acting on behalf of both parents) is the father of the child in question, a boy born 22^nd February 2009 to whom I shall refer as “K”. The parents attended in person and were represented by Chris Barnett, a solicitor of Levenes Solicitors. The local authority (“the authority”) was represented by Sean Bowers, a solicitor of Baker Small. I am grateful to them all for their assistance. I gave limited permission to appeal, as explained below, but all parties agreed that I should proceed to consider the substantive appeal on that basis without providing an opportunity for further written submissions.

 

Background and Procedure

 

3. K has been diagnosed has having mild to moderate autism and has difficulties with language communication, social interaction, self-help, fine motor skills and sensory processing. More detail can be found in the First-tier Tribunal’s written statement. The authority has maintained a statement of special educational needs in respect of K since 9th September 2013, when part 4 of the statement specified a mainstream school as the appropriate type of school. In fact, since about that time K has been attending a private school financed by his parents and which I refer to as “The Prep”. He remains at that school on a half time basis, attending each morning. This has been supplemented by various ABA programmes. The Prep has been open for nearly three years and at the time of the First-tier Tribunal’s decision had 15 pupils in reception, 15 in year1, and plans to admit pupils in September 2014 to bring the number up to 57. At the time K was the only pupil in the school with a statement of special educational needs. The First-tier Tribunal recited a great deal of detail about The Prep but I do not need to reproduce it here.

 

4. At some stage the authority revisited the statement of special educational needs and named a particular unit (to which I shall refer as “The Grove”) at a particular maintained school, to which I shall refer as “The Primary”. On 23^rd September 2013 K’s parents appealed to the First-tier Tribunal against the decision of the LEA to name that unit at that school and against the contents of various parts of the statement.

 

5. The First-tier Tribunal heard the appeal on 24^th February and 3^rd April 2014. Various amendments to parts 2 and 3 of the statement of special educational needs were agreed and certain others followed from the decision on part 4. I am not concerned in this appeal with ruling on the contents of parts 2 and 3 – they are only really relevant insofar as they effect the decision in relation to part 4. The First-tier Tribunal found that The Prep was not a suitable or appropriate school for K (for reasons which I examine below) and confirmed the decision of the authority in relation to naming The Primary. Written reasons for the First-tier Tribunal decision were signed on 14^th April 2014.

 

6. On 19^th May 2014 the Deputy President of the HESC chamber of the First-tier Tribunal refused the parents permission to appeal to the Upper Tribunal against the against the decision of the First-tier Tribunal. On 17^th June 2014 K’s father renewed the application direct to the Upper Tribunal and on 1^st July 2014 I directed that there be an oral hearing of the application. This was fixed for 9^th October 2014 (which was already a regretfully long period of time from the date from the original decision) but at the request of the parents that date was vacated and it was not possible to hold the hearing until 26^th March 2015, nearly a year after the First-tier Tribunal’s written reasons were signed.

 

7. The authority opposes the appeal and supports the decision of the First-tier Tribunal. It is fair to say that the two representatives spent a certain amount of time criticising the wording of each other’s arguments rather than focussing on the First-tier Tribunal’s reasons. I have tried to focus on the essential matters. In particular I am going to assume that The Primary and The Grove were lawfully established and I decline to discuss which statutes and regulations applied to their establishment and when – such matters are certainly outside the scope of this appeal, and possibly outside the jurisdiction of the Upper Tribunal.

 

The Principal Relevant Legal Provisions

 

8. So far as concerns this appeal the following provisions of the Education Act 1996 are particularly relevant (except for schedule 27, references in bold are to section numbers):

 

4 In this Act … “school” means an educational institution which is outside the further education sector and the higher education sector and is an institution for providing –

 

(a) primary education,

(b) secondary education, or

(c|) both primary and secondary education.

 

9 In exercising or performing all their respective powers and duties under the Education Acts the Secretary of State and local [education] authorities shall have regard to the general principle that pupils are to be educated in accordance with the wishes of their parents, so far as that is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure.

 

316(1) This section applies to a child with special educational needs who should be educated in a school.

 

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

 

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

(a) the wishes of his parents, or

 

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

 

(4) In this section and section 316 “mainstream school” means any school other than –

 

(a) a special school. or

 

(b) an independent school which is not –

(i) a city technology college,

(ii) a city college for the technology of the arts, or

(iii) an Academy.

 

337 A school is a special school if it is specially organised to make special educational provision for pupils with special educational needs, and it is –

(a) maintained by a local authority,

 

(b) an Academy school, or

 

(c) a non-maintained special school.

 

 

9. Schedule 27 to the 1996 Act provides in paragraphs 2 and 3 for parents to express a preference as to the particular maintained school at which education should be provided and to give reasons for that preference. Paragraph 3(3) provides:

 

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

 

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

 

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

 

 

 

What School Did the Parents Want?

 

10. In their appeal to the First-tier Tribunal (letter from Levenes dated 23^rd September 2013) the parents stated that they wanted part 4 of the statement of special educational needs to specify that K should attend The Prep, which was no different from a mainstream school in ethos, and that it would not be appropriate for K to attend a special school or a special unit. At that stage the parents did not suggest any alternative, should the tribunal take the view that The Prep was not suitable.

 

11. I point out the above because before me Mr Barnett relied on the provisions of section 316 to argue that the First-tier Tribunal was obliged to specify a mainstream school unless section 316(3)(b) applied, which had not been considered by the tribunal. 

 

12. However, the preference of the parents was not for a mainstream school. It was for The Prep, which is excluded from being a mainstream school by the provisions of section 316(4)(b). Nevertheless section 9 requires that the school preferred by the parents be named in part 4 unless any of the provisos applies.

 

The Suitability of The Prep

 

13. Paragraph 3(3)(a) of Schedule 27 provides that the school preferred by the parents need not (and by implication that it cannot) be named if it is unsuitable to the child’s age, ability or aptitude or to his special educational needs. The First-tier Tribunal concluded (paragraph 96) that The Prep was not suitable for K, with or without ABA, and that the ABA programme at The Prep “was not appropriate or reasonably required”.

 

14. In its statement of reasons the First-tier Tribunal said,

 

91. We considered whether [The Prep] could meet [K]’s needs. We noted first the nature of the school as set out in the Ofsted report. It was apparent [that] the ethos of the school was one of achieving excellence. It had the highest expectations for its pupils, whose achievements are outstanding. Children there exceed expectations particularly in reading, writing and maths. There is a dependence on children initiating their own learning. Leadership and management focussed on achieving excellence. There is no significant mention in the Ofsted report of special educational provision at the school, perhaps not surprisingly as [K] is the only pupil with such needs. We remind ourselves of [K]’s generally very low cognitive abilities, his delays and low performance in most areas of his curriculum.

 

92. We reminded ourselves also of the teaching methods employed at the school including the ‘Mantle of Experts’ which relies on group learning and imagination, and the reservations about its suitability for [K]. We noted the reservations of [K]’s teacher and the head of school about [K]’s ability to access the curriculum in KS2. We shred those concerns, although we felt along with [the specialist teacher for autism with the early years intervention team] even in his present year, he was accessing little of the curriculum, even heavily differentiated as it was.

 

93. We noted the school’s assessment system which was clearly not appropriate for [K] as it did not enable the school to assess him fully because of the heavily delayed performance in many areas. We did not feel it was appropriate for [K]’s teacher to rely partly on the school assessment and partly on the ABA assessment, particularly where she did not have a full understanding of the ABA programme and its assessment processes. We note the low levels of ASD training and experience of staff at the school. We felt this was a serious deficiency in a school seeking to educate a child with [K’s special educational needs]. We considered the lack of ASD appropriate teaching such as TEACCH, PECS and Mekaton was a serious deficiency in the school’s provision.

 

15. The First-tier Tribunal went on to consider some of these matters in more detail and in particular its concerns about the absence of OT and a sensory integration programme or a formal speech and language programme implemented by trained staff. In relation to the ABA programme:

 

96. … We shared concerns about the close presence of ABA tutors restricting [K]’s independence. We were concerned about the recent development of behavioural difficulties with [K] running off, which do not appear to have been discussed with OT or EP professionals. …

 

16. The grounds of appeal argued that these conclusions were flawed because the statement of special educational needs had not required the provision of TEACCH and PECS and witnesses had said that a variety of approaches could be suitable and successful. Also the statement had not required the involvement of a speech and language therapist but only a carefully planned programme to meet language needs. The tribunal, it was argued, had given no consideration as to whether necessary provision could be put in place, and none of the witnesses had suggested that The Prep was unsuitable.

 

17. It seems to me that these objections are to a large extent nit-picking about the language used by the First-tier Tribunal to express itself. Also, the objections would require a large amount of pure speculation as to what might or could happen at some unspecified future time. They also ignore the overall thrust of the statement of special educational needs and of the First-tier Tribunal’s reasoned decision. There was more than enough explanation in the statement of reasons to justify the tribunal’s conclusions on this issue, conclusions that an independent expert tribunal was entitled to reach. The contrary was not reasonably arguable, which is why I refused permission to appeal on that ground.

 

The Nature of The Grove

 

18. The First-tier Tribunal decision records a great deal of evidence and detail about the operation of The Grove. As I do understand it, none of the evidence or the facts found is challenged before the Upper Tribunal. The issue is what to make of it all. In what follows I try to summarise the main points. The Primary had 53 pupils with special educational needs, 13 of whom had a statement of special educational needs. The Grove was opened in 2012 and had originally been situated in the same main building as The Primary but in 2013 had been temporarily placed in a new separate building with two classrooms, a sensory integration room and a kitchen. It was planned to return The Grove to the main building in 2015. The Grove had 12 places for pupils aged 4 to 9, all of whom had autistic spectrum disorder (ASD). These pupils integrate with mainstream pupils at break and at lunch. In addition to the facilities of The Grove, The Primary also had ASD appropriate facilities including a secure site, outdoor playground, sensory integration room and small class sizes (maximum 23 pupils). All staff are trained and experienced with ASD pupils. The Grove had two teachers and three teaching assistants, all with appropriate specialist training and experience. There is a transition programme for new pupils. K would have access to foundation stage classrooms and outdoor areas in the main school, would join main school PE and could play “alongside peers”. The Grove seeks to facilitate contact with the main school for between 25% and 40% of the time. Integration with the mainstream would be encouraged for K with short periods in mainstream classes and with mainstream pupils being introduced into lessons in The Grove.

 

19. The parents have argued throughout that although The Primary might well be a maintained school, The Grove is not part of The Primary and is in reality a separate special school and could not be properly named under section 316(3) contrary to the wishes of the parents or without considering the section 316(3)(b) matters, which the First-tier Tribunal had not done.

 

20. As I have pointed out above, it would not have been contrary to the wishes of the parents to name a non-mainstream school (because The Prep is not a mainstream school) and the real issue depends on the application of the provisions of section 9. The parents did not want K to attend a special school. If it is the case that The Grove is in reality a separate special school, the decision of the First-tier Tribunal on this matter cannot stand. If it is in reality part of The Primary, and therefore part of a maintained school, the First-tier Tribunal’s decision does stand. That is a genuinely arguable point of law and is the issue on which I gave permission to appeal.

 

21. The First-tier Tribunal recorded (paragraphs 69 and following) that the lead teacher at The Grove gave evidence that The Grove had no head or management committee of its own. She herself was managed by the head of The Primary. There was no separate governing body or funding. There was a small allocation from the funds to buy ASD relevant items. There was no separate Ofsted inspection and no separate roll, pupils being on the roll of The Primary. Referrals are made by other schools in the area but are considered by the deputy head who is also the SENCO coordinator and admissions are through The Primary procedures. The Grove cannot independently accept pupils itself. The Grove is monitored by the head and deputy head, who must approve performance records, lesson planning and so on. The “fundamental purpose of [The Grove] is to prepare its pupils as far as possible for integration into [The Primary] main school” (paragraph 73).

 

22. The First-tier Tribunal concluded that The Grove was not a separate school.

 

 

 

 

Case Law

 

23. Mr Barnett and Mr Bowers agreed that there was no authority directly in point other than a decision to which reference had been made by the First-tier Tribunal. That is the decision of Upper Tribunal Judge S Lane in TB v Essex County Council [2013] UKUT 534 (AAC), HS/0230/2013.  

 

24. In that case the relevant issue was whether an “entity” (to use a neutral term) funded by the local authority and known as GROW was a “school” within the meaning of section 4 (see paragraph 8 above). It was based at, but was not part of, an academy and was intended to support pupils with behavioural problems and help them reintegrate into their mainstream schools. The pupils were all registered at other schools and referred by those schools directly or indirectly to GROW.  GROW had a management committee and a chain of command including the head teachers of two academies, the teacher who worked at the site(s) and a local authority educational psychologist. The committee was accountable to a unit of the local authority. It was not registered as a school, no PRU or school was responsible for it or directed it  or its programmes and it was not inspected by Ofsted as an individual entity. Judge Lane found that on the facts GROW was nevertheless a school. Od course the facts in the present case are somewhat different.

 

25. However, the particular relevance for the case before me is in Judge Lane’s comments in relation to section 4. References are to paragraph numbers of her decision:

 

29. Like so many words in English, “institution” can bear more than one meaning, but the common meaning is an establishment or organisation. In my view the linking of “educational” and “establishment” also indicates formality of structure.

 

33… unless the context otherwise requires, it is not justifiable to encrust the words “educational institution” in section 4 with the technicalities relating to the regulation, governance financing and administration of schools associated with the various categories recognised for those purposes.

 

34. That is not to say that the technicalities of “school” or, indeed the other indicia [governance structures, registration as a school, formal attachment to an existing pupil referral unit, inspection, external reference, whether the local authority considers that it could be named in the statement as a school] are irrelevant. In my view, they are factors which are helpful in assessing whether an entity is an educational institution. This is not, however, a tick-box exercise. Depending on the circumstances, a greater or smaller number of factors may serve to answer the question.

 

Conclusions

 

26. Mr Barnett argued that in the present case the First-tier Tribunal’s reasons “focus wrongly on the formalities of governance, financing and administration, which while relevant are not sufficient to show that a provision is not a school” (paragraph 7 of the grounds of appeal on page 9 of the Upper Tribunal file).  Mr Bowers supports the reasoning of the First-tier Tribunal.

 

27. In my opinion Mr Barnett was mistaken in relying on this understanding of paragraph 33 of Judge Lane’s decision while ignoring paragraph 34. There is perhaps some excuse for him doing so since the two paragraphs can be read as being difficult to reconcile with each other,

 

28. Section 4 defines “school” as meaning one of a list of particular types of educational institution. Whether an entity is an educational institution of one of those types is then a question of fact for the specialist First-tier Tribunal, which includes two expert members. In reaching its decision the First-tier Tribunal must of course take account of all of the relevant evidence and is not only entitled to, but is obliged to at least consider all of the matters referred to in paragraph 34 of Judge Lane’s decision, as I have summarised it above, as well as any other factors that it considers relevant.  It might well be easier to do this if her paragraph 33 is disregarded, as some of what she refers to as “technicalities” might in fact be very relevant.

 

29. In the present case I can see no basis for saying that the First-tier Tribunal’s conclusion about the nature of The Grove was wrong in law. It was entitled (and perhaps obliged) to take account of all of the facts of which it did take account, and I would be surprised if any reasonable panel of the First-tier Tribunal with appropriate expertise could have reached any other conclusion on the facts of this particular case.

 

30. For the above reasons this appeal by K’s father does not succeed.

 

 

H. Levenson

Judge of the Upper Tribunal

16^th April 2015