Upper Tribunal (Administrative Appeals Chamber)

 

IN THE UPPER TRIBUNAL Case No.  HS/1368/2015

ADMINISTRATIVE APPEALS CHAMBER

 

Before: A. Rowley, Judge of the Upper Tribunal  

 

Decision: 

I allow the appeal. The decision of the First-tier Tribunal dated 9 February 2015, following the hearing on 19 November 2014 and 8 January 2015 under file reference SE207/14/00004, involves an error on point of law.

The Upper Tribunal is not in a position to re-make the decision on the appeal.  The case, accordingly, 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.

(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 of the First-tier Tribunal (Health, Education and Social Chamber).  Detailed directions for the re-hearing should be left to such a Tribunal Judge, perhaps having considered any further submissions the parties may wish to make, in particular, in relation to the treatment of the expert evidence and any practical matters. 

 

 

 

 

REASONS FOR DECISION

 

1.    This case concerns the statement of special educational needs for a girl whom I shall call “B.”  Technically the parties are the local authority and B’s father.  However, her mother has also de facto been part of the proceedings throughout, and so I shall refer to the parties as the local authority and parents respectively.

Background

2.    B is now almost 13.  She is profoundly deaf.  She has bilateral cochlear implants and uses a radio hearing aid, and mitigates her deafness in part by lip-reading.  B also has mild non-progressive cerebellar ataxia with a bilateral tremor, a rare neurological disorder.  The tremor interferes with her fine motor skills, and she can be unsteady on her feet.  The combination of hearing difficulties and ataxia make B tired, particularly in the afternoon.

3.    Between September 2007 and July 2014 B attended an independent school.  Her placement was funded by the local authority.  In September 2014 she moved to DH School, an independent secondary school. 

4.    B has had a Statement of Special Educational Needs since 2004.  The latest was made on 7 April 2014.  The parents disagreed with the Statement in a number of respects, and they appealed to the First-tier Tribunal. 

The First-tier Tribunal’s decision

5.    Whilst there were many matters in issue at the commencement of the hearing before the First-tier Tribunal, by the time the hearing concluded they had decreased considerably.  Relevant to the issues on this appeal to the Upper Tribunal were the following: under Part 3 of the Statement, the size of the class in which B should be taught, and under Part 4, which school should be named.

6.    The parents’ case was that, given B’s level of profound hearing impairment, there should be inserted into Part 3 of the Statement: “the school should provide small class sizes with a maximum of 20.”  The local authority’s case was that there was no educational need for B to receive small classes, and the figure of 20 was arbitrary. 

7.    In terms of the placement in Part 4, the local authority had stated that St A’s School, a voluntary aided comprehensive school, should be named.  B’s parents did not, however, consider that that was a suitable school for B.  Rather, they contended that DH School was able to meet her needs.[1]  The local authority did not accept that DH School was a suitable school for B.

8.    The First-tier Tribunal sat on 19 November 2014.  As there was insufficient time to complete the hearing that day, the matter was adjourned, part-heard to 8 January 2015.  The tribunal heard all the evidence by the conclusion of the hearing on 8 January 2015, but there was no time for the parties’ representatives to make oral submissions.  It was, therefore, agreed, that they would send written submissions to the tribunal.

9.    The Tribunal Judge issued a Decision on 9 February 2015.  The tribunal decided all disputed matters in the parents’ favour.  The local authority unsuccessfully applied to the Tribunal Judge for a review of, and permission to appeal against, the tribunal’s decision.

The appeal to the Upper Tribunal

10. I granted permission to the local authority to appeal to the Upper Tribunal on grounds 1, 2 and 4 of the grounds of appeal relied upon by the local authority.  Neither party requested an oral hearing of the appeal, and I have accordingly determined it on the papers. 

11. It is well known that, under section 11(1) of the Tribunals, Courts and Enforcement Act 2007 a party has a right to appeal to the Upper Tribunal on any point of law arising from a decision made by the First-tier Tribunal (other than an excluded decision). 

The expert evidence

12. Each party instructed an acoustic engineer to undertake an assessment of the acoustic characteristics of both DH School and St. A’s School, and to prepare a report.  I must comment that it is unfortunate that the parties were unable to co-operate with each other jointly to instruct a single expert.  Had they done so, the costs to both parties would have been considerably lower.

13.  It is right to say that the issue of expert evidence was discussed at the telephone case management hearing on 26 September 2014.  By that stage Mr. James, instructed by the parents, had already prepared a report on DH School.  The parents sought an order that Mr. James be granted access to St A’s School so that he could undertake a similar survey and prepare a report.  The local authority opposed this proposal, submitting that it intended to arrange for its own expert to visit and prepare a report on St A’s School, and there would be “no point in duplicating similar assessments.” 

14. At the hearing on 26 September 2014 Tribunal Judge Meleri Tudur recorded:

“In view of the very technical nature of acoustics reports and the scientific nature of the date, I suggested it might be an area in which the parties might wish to pursue a joint instruction since the gathering of the data could be undertaken on behalf of both with a view to assisting the tribunal in its consideration of the issues.  It was agreed by the parties that they would take instructions upon this issue and would decide within a week of the hearing whether they would pursue the joint instruction thereby reducing the cost of the report for both of them.”

15. Judge Tudur directed the parties to obtain their respective clients’ instructions and to liaise together to decide whether an acoustician could be jointly instructed to undertake the acoustic survey of St A’s School.  In the absence of agreement, Judge Tudur ordered that the parents’ acoustician be permitted to carry out an acoustic survey of St A’s School.

16. With the benefit of hindsight, Judge Tudur could, perhaps, have been a little more robust, and simply ordered that a single joint expert acoustician should be instructed in relation to St A’s School.  Further, it would have been preferable if the precise issues upon which expert evidence was being permitted had been recorded.  Were the experts simply to carry out an acoustic survey, or were they also to express an opinion, based on their expertise and experience, in relation to suitable class sizes? Or was the latter an issue of fact upon which expert evidence was not required?

17. In the event, the parties could not agree on the joint instruction of an expert, and each instructed their own.  

18.  Mr. Richardson was instructed by the local authority.  His general conclusion was that both schools had acoustical strengths and weaknesses when considering their suitability for B.  In the case of each school, Mr. Richardson considered that relatively straightforward steps could be taken to resolve any issues so that a suitable acoustic environment could be provided for teaching her.  Significantly, Mr. Richardson pointed out that noise levels during classes at St. A’s were generally low, despite class sizes of 20-30.  He was of the view that this was, no doubt, helped by the low reverberation times and consequently reduced reverberant noise levels, as well as the good behaviour of the students. 

19. As I have said, Mr. James was instructed by the parents.  In his opinion, provided that the acoustic treatment which he recommended could be installed, DH would be an excellent acoustic environment for B.  As to St A’s School, he concluded that by the standards of mainstream state schools, the acoustics were in several respects excellent, and in practice he would not expect room acoustics to be a problem for B, although he did have some reservations about other areas of the school.

20. Mr. James considered, in some detail, the issue of class sizes.  He said:

“… It is widely considered that class sizes greater than 20 pupils are unsuitable for teaching pupils with some types of profound hearing impairment because of the increase in ambient noise level in larger classes than this…”

21. He also said:

“Noise levels during classes are, by the standards of large schools, unusually low due to the acoustic treatment and the excellent class discipline in the classes I witnessed.  Even so, however, the lowest levels in class that I measured at [St. A’s School] were still significantly above the levels expected in corresponding much smaller classes.”

22. Mr. James went on to consider class size in the context of group discussion and the use of radio aids.  He concluded that, irrespective of the acoustic conditions in a school, it would be very difficult to see how B would not be significantly disadvantaged by having even part of her learning in classes of 20 or more children.  As there was no provision to teach B in a smaller group at St A’s School, he was of the view that it would seem that that school could not provide a suitable teaching environment for her.  Mr. James stated that, in contrast, all classes at DH School were smaller groups where B could use both her radio aid and lip reading effectively.

23. Neither expert was present at either hearing.  Their written reports were before the tribunal.  The tribunal dealt with their evidence in this way, under the heading “class size”:

“27. The tribunal were provided with reports by two acoustic engineers, Mr James instructed by the appellants and Mr Richardson instructed by the local authority.  The tribunal was invited to make findings about areas of dispute, namely class size and the acoustic environment in the schools on the basis of these reports.  The tribunal did not consider it was appropriate to do so.  The contents of the reports had not been agreed and the subject matter of the reports was highly technical.  Given the importance of the evidence, if the subject matter and conclusions of the authors was disputed (and the parties indicated at the outset of the hearing that there was no dispute) then the authors of the reports should have been available to give evidence.”

24. The tribunal went on to find that B’s Statement should contain the following words: “The school should provide classes with a maximum of 20 students” based on the following evidence: an educational psychologist who gave evidence on behalf of the parents that children with B’s level of hearing difficulties needed a “small” class, and that the SENCo at B’s previous school had told her that being in a “large” class would be a problem for B; B’s mother’s evidence that the bigger the class the more difficult it was for B to identify who was talking and effectively to operate the radio, and, in general, B was very susceptible to background noise; at B’s previous school there had generally been approximately 20 students in a class, and such a class size had therefore been a significant part of her educational provision since 2007 and had assisted her to access education.

25. Ground 2 of the application for permission to appeal is that:

“The FTT erred in law by not considering the evidence of the acousticians and in particular the evidence of Mr Richardson.”

26. Mr. Small, the solicitor instructed by the local authority, submits that the expert reports were clearly relevant to the issues of class size and the suitability of the respective schools.  He states that the tribunal at the hearing had not given any indication, as a preliminary issue or otherwise, that it could not and would not consider the reports.  He points out that, had there been such an indication, the adjournment in the proceedings would have given the parties an opportunity to call the acousticians to give evidence at the second day of the hearing. 

27. Mr. Friel, counsel instructed by the parents, argued that the tribunal plainly and accurately recorded the fact that both parties agreed that the evidence on acoustics was entirely neutral bar Mr. James’s reference to the evidence for small classes.  Neither expert, submits Mr. Friel, found substantial disadvantage in either school, and made no adverse findings on acoustics, although Mr. James had reservations.  Mr. Friel contends that the tribunal plainly disregarded Mr. James’s reservations, and Mr. Richardson did not have any reservations.  Mr. Friel remarks that if the expert acoustic evidence constituted important evidence, one would have expected the local authority’s written submission to the First-tier Tribunal to have made some reference to it in detail but, he says, it did not. 

28. In response, Mr. Small does not accept that the expert evidence was neutral, or that both parties treated it as such.  He relies on what he said in his written closing submission to the tribunal:

“Mr. James in his report suggested that class sizes of more than 20 were not conducive to meeting the needs of some children with hearing impairments.  However, the Local Authority commissioned a private acoustician who confirmed that [St. A’s School] could meet [B’s] needs and could provide an appropriate environment [B. 1041].  The report of Mr. Richardson should be preferred as he carried out a clear analysis of the classes that [B] would access, whereas Mr. James did not, he only asked to see a sample of the rooms available.”   

29. It seems to me that Mr. Small was raising an issue in relation to the expert evidence, inviting the tribunal to prefer the local authority’s expert on a relevant matter.  What did the tribunal think?  I have to say that paragraph 27 of the tribunal’s reasons (set out at paragraph 23 above) does not provide an object lesson in clarity.  On the one hand the tribunal states that “the contents of the reports had not been agreed.”  On the other hand it states that “the parties indicated at the outset of the hearing that there was no dispute.” 

30. Given, in my view, there was an issue in relation to the expert evidence, the tribunal was faced with a dilemma.  The hearing had concluded, yet, on the face of Mr. Small’s written submission, there was no agreement as to the expert evidence upon which the tribunal was being invited to make findings.  Had there been more focussed case management at the start of the hearing, this situation would not have arisen.  Faced with the written experts’ reports it would have been preferable if the tribunal had established at the outset of the hearing by way of a preliminary matter precisely which parts of the reports were agreed, which parts were not agreed, and, if there were areas of dispute, how the parties were inviting the tribunal to resolve the disputed matters (whether by calling the experts to give oral evidence or doing the best it could on the written evidence).  The parties’ submissions/concessions could then have been recorded in writing by the tribunal and, if there were any issues, those issues could have been adjudicated upon and, again, recorded in writing. 

31. In this case it was the absence of such a procedure that led to the predicament encountered by the tribunal after the hearing had concluded and the written submissions had been received.  However, even at that stage, the tribunal should have considered how to deal with the matter.  It may have called for further written submissions on how to resolve the issues between the experts.  It may have decided to hold a further hearing so that the experts could have been called to give evidence.  Or it may have considered that any further submissions or evidence would have been entirely disproportionate, and made findings on the basis of the written reports.  Instead, the tribunal simply decided that it was not appropriate to make findings on the basis of the experts’ reports “as the contents of the reports had not been agreed and the subject matter of the reports was highly technical.”  That was not an adequate reason for refusing to consider and make findings on the expert evidence and, in my judgment, it constituted an abdication of responsibility on the part of the tribunal.  Accordingly, I am of the view that the tribunal erred in law, and I set aside its decision.

32. On the basis of what has happened in this case, it may be helpful if I make some observations on how what may be described as “non-standard” expert evidence may be dealt with.  It is crucial that I emphasise that I am not, here, considering the “standard” type of evidence of educational psychology, speech and language therapy and occupational therapy. 

33. As in all cases, the parties and tribunal must bear in mind the provisions of the overriding objective of rule 2 of the Tribunal Procedure (First-tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (“the First-tier Tribunal Rules”) – that dealing with a case fairly and justly includes dealing with the case in ways which are proportionate to the importance of the case, the complexity of the issues, the anticipated costs and the resources of the parties.

34. Further, whilst I am, of course, mindful of the fact that the Civil Procedure Rules 1998 do not apply to First-tier Special Educational Needs and Disability Tribunals, and that un-necessary formality in those tribunal proceedings must be avoided, nevertheless, in my judgment Part 35 of the Civil Procedure Rules provides a useful backdrop in relation to case management decisions concerning expert evidence in such tribunals, and I draw upon it.

35. With that introduction, the starting point must be that expert evidence should be restricted to that which is reasonably required to resolve the appeal.  If a party intends to seek to rely upon expert evidence, then pursuant to the duty under rule 2(4) of the First-tier Tribunal Rules, this should be communicated to the other party as soon as possible.  If (as is likely in most cases) the issue falls within a substantially established area of knowledge, where it is not necessary for the tribunal to sample a range of opinion, it may well be that the evidence should be provided by a written report of a single expert jointly instructed by the parties. 

36. Any issues regarding expert evidence should, of course, be apparent from the parties’ respective Attendance Forms.  Upon perusal of those Attendance Forms a tribunal judge may wish to decide whether and, if so, how to exercise his or her discretion to give directions as to expert evidence.  In doing so, he or she will be mindful of: (i) rule 15(1)(c) of the First-tier Tribunal Rules, which provides that, without restriction on its general case management powers, “the tribunal may give directions as to … whether the parties are permitted or required to provide expert evidence, and if so whether the parties must jointly appoint a single expert to provide such evidence,” and (ii) the observations which I have made at paragraphs 33 - 35 above.  It may well be that the parties would have to make out a strong case either for relying on expert evidence from an expert who had not been jointly instructed, or for requiring oral evidence of an expert at the hearing of the appeal. 

37. Further, in giving any case management directions relating to expert evidence it would be helpful to all involved if the tribunal judge were to identify precisely the issues which the experts are to address.   

38. If these matters are borne in mind, it is to be hoped that a tribunal charged with conducting the hearing of an appeal will not face what this tribunal faced at the start of the hearing.  However, if for any reason that is not the case, and/or if there are before the tribunal expert reports from experts instructed by more than one party, the tribunal should consider my comments in paragraph 30 above.

The other grounds upon which I gave permission to appeal

39. In the circumstances it is not necessary for me to consider the other two grounds upon which I gave permission to appeal.  They involve no issues of law upon which it would be useful for me to direct the tribunal at the re-hearing. 

Conclusion and directions to the new tribunal

40. For the reasons set out at paragraph 31 above the decision of the tribunal involves an error on point of law.  I allow the appeal, and I set aside the decision.  I acknowledge that if I remit the case to be re-heard by a new tribunal there will be more expense and delay, which is regrettable.  However, as fresh findings are required by the expert tribunal, it is right that I remit the matter to be re-heard by a new First-tier Tribunal. 

41. I direct that:

(a) The new tribunal should not involve the tribunal judge or members who sat on the last tribunal.

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

(c) These directions may be supplemented as appropriate by later directions by a Tribunal Judge of the First-tier Tribunal (Health, Education and Social Chamber).  Detailed directions for the re-hearing should be left to such a Tribunal Judge, perhaps having considered any further submissions the parties may wish to make, in particular, in relation to the treatment of the expert evidence and any practical matters. 

35. For the sake of completeness I should add that the fact that this appeal has succeeded on a point of law says nothing one way or the other about whether the parents’ appeal will succeed on the facts before the new tribunal, which will make its decision having considered all the relevant evidence before it and made appropriate findings.

 

 

 

 

 

 

1. Rowley, Judge of the Upper Tribunal

 

(Signed on the original)

 

Dated: 14 July 2015