IN THE UPPER TRIBUNAL Case No  HS/3211/2014

ADMINISTRATIVE APPEALS CHAMBER

 

Before UPPER TRIBUNAL JUDGE WARD

 

Attendances:

 

For the Appellant: Mr John Friel, instructed by SEN Legal

 

For the Respondent Mr Clive Sheldon QC, instructed by Director of Law

 

Decision: 

 

1. The order for anonymisation made on 7 October 2014 is varied inasmuch as the case is henceforth to be known as H v A London Borough and, as so varied, is continued indefinitely unless varied by further order of the Upper Tribunal.  No matter is to be disclosed or published regarding this case likely to lead members of the public to identify the child who is the subject of it, his sister or his parents.

 

2. The appeal is allowed. The decision of the First-tier Tribunal sitting in London on 18 May 2013 and 26 April 2014 under reference SE206/13/00006 involved the making of an error of law and is set aside. 

 

3. The parties are invited to make submissions as to whether the case should, if practicable, be remitted to an identically constituted panel to reconsider its decision in the light of the present decision or to a differently constituted panel to re-hear ab initio.  Such submissions must be received by the Upper Tribunal within 14 days of the date of the letter sending out this Decision.

 

REASONS FOR DECISION

 

1. The pupil involved in this case, whom I will call Z, is a boy now aged 15. He has Asperger’s Syndrome and a history of significant mental health difficulties.  He is placed on a residential basis for 52 weeks a year at a school I will call A.  The cost of that provision is around £250,000 annually and is met by a combination of the local authority and the NHS.  It is to the credit of those bodies that sufficiently joined-up working has been achieved to ensure that Z receives the provision he needs.

 

2. The issue before me however ultimately calls into question the division of responsibilities between those bodies.  Mr Friel assures me (and Mr Sheldon QC does not dissent) that the point does require to be resolved (a) for when Z in due course progresses to a (potentially wider-ranging and longer-lasting) Education Health and Care Plan under the provisions of the Children and Families Act 2014 (although I record that no part of the NHS is - or has had the chance to be - represented before me) and (b) in the event that family moves might lead to a change in responsibility for Z.

 

3. The background is that when around 10 years of age Z had been sent to another residential school, which I will call school C, at which it is said that older pupils were free to, and did, spend long hours unsupervised in their rooms watching pornographic material and that some of them took delight in imparting a considerable degree of awareness in respect of sexual matters to the previously naïve 10 year old.  It was then suggested by Z that after being moved to school B, he was the victim of some form of sexual bullying or abuse.  It then appears that in 2012 he engaged in sexual behaviour towards his younger sister and he now has only very limited contact with her.  So far as I am aware, no facts have ever formally been found in respect of any of these matters and I mention them in deliberately general terms, but they are essential background.  Only what, if anything, may have happened at school B, as to which there is a lack of evidence, appears significantly in dispute.

 

4. The question before me is whether a substantial part of the provision ordered by the First-tier Tribunal for addressing Z’s harmful sexual behaviour was correctly included within Part VI of his statement of special educational needs as “Non-Educational Provision” rather than in Part III.

 

5. Whether something is educational or non-educational provision is, in general, a matter for the specialist tribunal of fact, and there is a “shared territory” of provision (see London Borough of Bromley v Special Educational Needs Tribunal [1999] ELR 260 at 295), which makes it unlikely that a higher court or tribunal with a jurisdiction limited to points of law will be entitled to intervene.  As will be seen, though, this case has a number of particular features and following an oral hearing in October 2014 I gave permission to appeal.

 

6.The case takes us back to the building blocks of the special educational needs regime in the Education Act 1996.  As in force at the date of the tribunal’s decision, s312 so far as relevant provided:

 

“(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 provisos which are immaterial in this case]  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 authority …

…

(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 authority (other than special schools)” ^…

 

7. In due course, via the provisions in s323 for assessment, we arrive at s324, which so far as relevant provided:

 

(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) and (4A) [deal with naming a school]

 

(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,…

 

(5A) –(7) –[not material].”

 

8. At the front end of this process, therefore, is whether the child has a “learning difficulty”.  As Sedley LJ observed in Bromley:

 

“A learning difficulty is anything inherent in the child which makes learning significantly harder for him than for most others or which hinders him from making use of ordinary school facilities.”

 

9. The next question is  what “special educational provision” does that learning difficulty call for, “special educational provision” being understood as set out in s312(4) above.

 

10. It is convenient here to refer to the statutory and policy basis for sex education in maintained schools.  Under section 80 of the Education Act 2002, the curriculum for every maintained school in England is required to include provision for religious education, the National Curriculum and, “in the case of a secondary school, provision for sex education for all registered pupils at the school.” The section goes on to make equivalent provision for pupils of special schools who are provided with secondary education. Via section 212(2) and (3) of the 2002 Act, the definition of “sex education” in section 579(1) of the 1996 Act applies, but that merely stipulates that it is to include education about various sexually transmitted diseases and does not advance the present matters.  The material circular remains DfEE0116/2000 “Sex and Relationship Education Guidance”. The document is intended to represent good practice and does not of course constitute the law.  I infer that in a rather contentious area, if it was considered no longer to reflect good practice, it would by now have been replaced.  It does not appear to have been in evidence before the First-tier Tribunal. I derive assistance from it to inform myself about what is envisaged in relation to sex and relationship education.  It is therefore relevant to set out the section entitled “Special educational needs and learning difficulties”.

 

“1.26 Mainstream schools and special schools have a duty to ensure that children with special educational needs and learning difficulties are properly included in sex and relationship education. Sex and relationship education should help all pupils understand their physical and  emotional development and enable them  to make   positive decisions in their lives.

 

1.27 Some parents and carers of children with special educational needs may find it difficult to accept their children’s developing sexuality. Some pupils will be more vulnerable to abuse and exploitation than their peers, and others may be confused about what is acceptable public behaviour.  These children will need help to develop skills to reduce the risks of being abused and exploited, and to learn what sorts of behaviours are, and are not, acceptable.

 

1.28 Schools should ensure that students with special needs in mainstream schools receive sex and relationship education.  Teachers may find that they have to be more explicit and plan work in different ways in order to meet the individual needs of children  with special educational needs or learning difficulties.  It is important to take care not to marginalise sex and relationship education.  It is also important that   students with special educational needs are not withdrawn from health education so that they can catch up on National Curriculum subjects.  Special schools will need to   address the specific needs of their pupils.

 

1.29 All staff including ancillary staff, physiotherapists, nurses and carers as well as teachers should follow the school’s sex and relationship education policy when   working with pupils with special educational needs and learning difficulties.”

 

11. From this I derive a number of indications as to what is envisaged. These include (a) that the remit of schools in this regard needs to reflect that some parents find the topics hard to deal with in relation to their children with SEN, and thus that schools may have to take on responsibilities that parents fail to discharge; (b) that implementing the remit of schools in this area is not the sole responsibility of teachers, but also includes non-teaching staff, such as physiotherapists, nurses and carers; (c) that topics such as protection against abuse and the need to avoid unacceptable public manifestations of sexualised behaviour fall within schools’ responsibilities where pupils with SEN are concerned; and (d) that children with SEN, whether in mainstream schools or special schools, may have individual needs in this regard, which require to be addressed.

 

12. The tribunal had before it a wealth of written material.  Reference needs to be made to (a) a report from Ms M and a colleague, described as “Therapeutic Practitioners”, who were working with Z at school A; and (b) reports from Mrs P, an educational psychologist instructed by Z’s parents.  Oral evidence was given to the tribunal by, among others , Mrs P and by Dr F, Clinical Director, CAMHS, who was called by the local authority.

 

13. Ms M’s report included in its conclusion and recommendations (emphasis added):

 

“…[I]t is suggested that Z would benefit from further therapeutic interventions in terms of his distorted cognitions and general understanding of the need for consent and boundaries, particularly as due to his Asperger’s diagnosis he may demonstrate less capacity for empathic responses in terms of acknowledging victim   experiences.

 

These interventions would focus on the following areas:

 

● That Z is enabled to gain a greater understanding of the impact of his behaviours on others.

 

●That work is undertaken with Z around issues of relationships, sexual knowledge and general development appropriate to his age in order for him to be able to develop good and appropriate relationships in the future.

 

● That Z is able to explore his own victim experiences and how they may have impacted upon his own behaviours.

 

● That Z gains an understanding of the necessity to adhere to boundaries and gain informed consent.

 

● Work is undertaken in conjunction with any other family or individual interventions to plan and prepare for integration within the family.

 

● That Z is enabled to consider the links between his thoughts, feelings and behaviours and develop effective strategies for managing negative emotions.”

 

14. As the tribunal noted, “the crux of the matter was that the LA did not accept that Z’s sexual behaviours were special educational needs and that they required special educational provision”.

 

15. It recorded the recommendations of Mrs P that, inter alia, Z needed (italics added):

 

“A highly structured sex education programme designed for persons with Asperger[‘s] Syndrome and who may have experienced sexual abuse or been involved in sexual abuse.

 

Its response was to order an amendment to Part III of Z’s statement excluding the words italicised, while in Part VI it provided with the agreement of the respondent inter alia that:

 

“There will be therapy for sexual harmful behaviour, delivered by an individual who has expertise in this area…The individual will have experience in delivering therapy to young people who engage in sexually harmful behaviours.”

 

From this it can plainly be seen that the tribunal took the view that part of the provision recommended by Mrs P was non-educational provision.

 

16. As to Ms M’s report, the tribunal was “persuaded by the terms of the report that her particular work was much more with regard [to] mental health and sexual issues than educational issues” and gave as an example the exploration of Z’s victim experience and integration within the family. 

 

17. Dr F gave evidence that Z’s needs as to the matters in Ms M’s report should be overseen by a psychiatrist rather than a psychologist and concluded that he had mental health and therapeutic needs, psychiatric needs in the realm of specialised mental health care and not part of the educational curriculum.  He also suggested that Z had “had traits consistent with a personality disorder”  and that such was the proper subject for psychiatric rather than educational response.  (Mr Friel before me disputes whether questions of personality disorder can properly arise in the case of a young person under 18.  It seems to me that that was a point for the specialist tribunal of fact and it was clearly prepared, and in my judgment entitled, to place some weight on this part of Dr F’s evidence.)

 

18. The tribunal sought assistance from the Code of Guidance but found none.  It clearly found this a challenging case, as have I.  The logic behind its reasons does not always flow smoothly.  Ultimately for the reasons below I consider it asked itself the wrong question. 

 

19. The tribunal in para 18 of its decision:

 

“acknowledge[d] that Z is on the autistic spectrum and has social communication needs: we concluded that this was his fundamental Special Educational Need.  We do not accept that in this case sexualised behaviour is inherent as or a manifestation of a special need.  His parents confirmed that when he went to School C he was a naïve 10 year old without sexualised behaviour.  We consider that this was learned.”

 

By that, the tribunal was saying that the social communication difficulties associated with being on the autistic spectrum were Z’s learning difficulty calling for special educational provision to be made for him.

 

20. Whether something is “inherent” or not is relevant to whether it amounts to a “learning difficulty” (see Bromley, quoted at [8].)  The sexualised behaviour was not “a manifestation of a special need” in that (para 21) the tribunal did not “accept that his sexualised behaviour was a manifestation of his autistic disorder.”

 

21. So far, so good. The learning difficulty was Z’s autism-related social communication difficulties, not his sexualised behaviour.  Accordingly, what was the “special educational provision” which called to be made?

 

22. The tribunal noted one of the definitions of “education” in the Shorter Oxford Dictionary which had been relied upon by Owen J at first instance in Bromley, as “the systematic instruction, schooling or training given to the young…in preparation for  life…”  From there, the tribunal noted that special educational provision is dependent on need and in response to a special educational need.  That, although not quite how the statute puts it,  is unexceptionable in my view:  it reflects the words “calls for” in s.312(1).

 

23. However, the tribunal then relied on the fact that the sexualised behaviour had been learned through inappropriate contexts (para 20) and (at para 22) that therapies such as speech and language therapy and occupational therapy, which at least might be considered on occasion to be educational, addressed difficulties inherent in a child, not learned behaviour.  From that it appears to have concluded that whether behaviour was learned was relevant to whether educational provision was directly related to a child’s learning difficulties, as Bromley requires.

 

24. I am unable to see that whether it is required in response to behaviour that is learned is a legally correct test to apply in determining whether something constitutes “special educational provision” or not.  As correctly understood (see above) education in mainstream schools is not limited to the principles of physics or French verbs where it is a question of acquiring knowledge, but extends to topics such a religious education, PSHE (Personal, Social, Health and Economic Education), sex education and, latterly with increased emphasis, “British values”, to any of which addressing learned attitudes, from, for instance, home, peer group or religious environments, is likely to be integral.  I put to Mr Sheldon in argument the case of a pupil with special educational needs who, as a result of his or her experience to date, has a wholly intolerant attitude to the beliefs held by members of other faiths.  I understood Mr Sheldon to accept that if the pupil in a religious education class, by virtue of his or her special needs, found it particularly difficult to evaluate his/her own position or to learn to respect the views of others, additional help provided to that pupil would properly be regarded as special educational provision.  To take another example, a pupil who has grown up in an environment where little importance is attached to obtaining informed consent in sexual matters and whose special educational needs make it hard to see the limitations and moral inadequacies of such an approach would in my view likewise be the proper recipient of special educational provision in that regard, a view reinforced by the content of the Circular quoted above.

 

25. The question, therefore, is properly not whether Z’s harmful behaviour is learned, but whether the particular provision required to address it is directly related to his learning difficulty. That was a question which the tribunal addressed, in paras 20 to 22 of its reasons, on a false premise.  Had it addressed in this context the evidence about what the provision required, it is certainly possible that it would have reached the conclusion that it was directly related to his learning difficulty, as both the evidence of Mrs P and the emphasised part of the evidence of Ms M set out at [13] tended to suggest.

 

26. In my view, therefore, the tribunal has erred in law by applying a test which was relevant to whether something was a “learning difficulty” also to whether it was the proper subject of special educational provision and by approaching the link which there must be between learning difficulty and provision in a way which was incorrectly restrictive and which meant it failed to consider, in that context, all the material evidence.  It follows that I essentially accept the central point made by Mr Friel.

 

27. The tribunal’s conclusion appears midway through its para 24:

 

“We concluded that the sexualised behaviour was first learned and secondly an issue at the medical rather than the educational end of the spectrum.”

 

For the reasons I have given above, it is not possible to read this in the way which would be unobjectionable, namely (a) the sexualised behaviour was first learned (and so not a learning difficulty); and (b) secondly  the provision required to address the sexualised behaviour was at the medical rather than the educational end of the spectrum (and so not special educational provision).  Rather, the importance the tribunal attached to learned behaviour affected its conclusions with regard to special educational provision, which were, accordingly, reached on two grounds.

 

28. Mr Sheldon submitted:

 

a. The question for the tribunal was whether there was a need calling for special educational provision and that was a question of fact (see SG v Bromley LBC [2013] UKUT 619 (AAC) [2014] ELR 190, following R v Oxfordshire CC ex p W [1987] 2 FLR 193.)

 

To that, the answer is that two questions are involved – is there a learning difficulty? And does it call for special educational provision?  I accept that both are questions of fact in the sense that provided the tribunal has addressed the right questions, the conclusions are for it alone.  However, it did not do so.

 

b. The tribunal found that Z’s sexually harmful behaviour was not part of his learning difficulty  and was entitled to do so.

 

I agree. The question is, though, what properly flows from what the tribunal did find to be Z’s learning difficulty.

 

c. In Bromley v SENT “it was common ground that educational provision must be directly related to a child’s learning difficulties.” Certainly Sedley LJ, for the Court of Appeal, so held (at 294).

 

I accept the legal proposition, but the tribunal erred in addressing it for the reasons given at [25] and [26].

 

d. There is no indication of a tendency to harmful behaviour in the reports of Drs N and S in the evidence.

 

This in my view supports the conclusion that it was experiences at School C which resulted in learned sexualised behaviour, but for the reasons I have given, that is not a sufficient answer.

 

e. The case of R v Secretary of State for Education and Science ex p E [1995] 2 AC 633 on which Mr Friel relies essentially for the proposition that the Education Act 1981 (the predecessor to the 1996 Act so far as special educational needs are concerned) “looks at the whole child” (per Balcombe LJ at 388 E-F) is, rather, authority for the narrower proposition that where a child’s statement includes special educational needs A and B in Part 2 and the provision called for by Need B would not of itself be enough to require a statement, it must nonetheless be included in a statement the need for which is generated by Need A.

 

I am inclined to agree with Mr Sheldon and have not relied on ex p. E in reaching the present decision.

 

f. The tribunal was entitled to rely on the evidence of Dr F despite the criticisms of it made by Mr Friel.  I agree (see [17]) but for the reasons given above, it is not enough.

 

g. The tribunal did not go wrong in para 33 of its reasons and criticisms of it made by Mr Friel that the tribunal was using its own expertise in a manner which was unlawful are based on a misunderstanding of it.

 

I agree with Mr Sheldon that the paragraph is merely summarising the tribunal’s view of what Z should receive.  However, while the paragraph does not provide an additional ground for impugning the decision, I consider the tribunal’s position summarised in that paragraph to be flawed for the reasons given above.

 

h. Mr Friel’s argument removes the need for Parts V and VI of a pupil’s statement.

 

I disagree.  In some cases the non-educational nature of the provision will be clearer (consider for instance the child who, because of a tendency to bang her face and head, required the presence in school   of continuous medical cover in City of Bradford MBC v A 8 May1996, unreported,(Brooke J).  Even in the present case, it is not impossible that provision may properly fall to be put in Parts V and VI, but where on the spectrum provision needs to be put needs to be approached through the correct legal questions.

 

29. If as I find the first ground (the use made of “learned behaviour” is flawed, it does not appear to me that the second is robust enough to save the tribunal’s decision so that I ought to exercise my discretion not to set it aside.  I take into account that it is impossible to draw any inference that the “learned behaviour” point played only a minor, ancillary role, compared with the second ground. Reading the decision as a whole, their weight appears to have been at least equal.

 

30. Further, even if, not having been taken to the 2000 Guidance, it was unlikely to refer to it in terms, one might have expected to have seen, as part of the tribunal’s reasons an acknowledgment of the scope of the (educational) curriculum in relation to sex and relationship education.  The grounds of appeal before me did not include that the tribunal failed to take into account, or failed to explain how it had taken into account, the extended scope of sex and relationship education as it is now understood and I do not find it to have been a separate error of law.  Nonetheless, and having put the Guidance to the parties during the proceedings before me, I do take its existence into

account in considering how to exercise my discretion.

 

 

 

CG Ward

Judge of the Upper Tribunal

4 June 2015