Wandsworth v K & Anor

This is a statutory appeal by the London Borough of Wandsworth, the local education authority (“the LEA”), against a decision of the second respondent (the Tribunal) who heard an appeal by Mrs K in connection with a statement of special educational needs (the Statement) which had been prepared in connection with her son A. The appeal is concerned with one issue namely that part of the decision of the Tribunal to place the provision for applied behavioural analysis (ABA provision) within Part 3 of the Statement of Special Educational Needs. Before turning to the appeal, I propose to deal with a preliminary issue which arose in connection with the appropriate parties to the appeal.

A, who was the subject of the Tribunal hearing, had by the date of the appeal hearing applied for and obtained public funding to be represented in the appeal. At no time has he been joined. At the time of the application for legal aid to the Legal Services Commission a statement was provided in support of the application. Mr Wolfe, counsel instructed for A, contributed to it and confirmed to the court that the purpose of the document was to draw together all matters relevant for consideration by the Legal Services Commission. The document made no reference to The Queen v SENT ex parte South Glamorgan County Council 1996 ELR 326 and more particularly the observation of Lord Justice Thorpe at page 331 at E where he said:

“……it would seem to me an abuse of a legal aid process for such a family to put the child forward as a party simply so that the family’s case can be put at the public expense when the family is not truly a family that qualifies for that support.”

An observation to the like effect was made by Leggatt LJ in S v SENT & City of Westminster where the joinder of the child gave rise to a jurisdictional issue and he observed:

“To do so would not only be contrary to principle, but would enable the appeal to be conducted at the expense of the legal aid fund when the true appellant may not be entitled to that benefit.”

Mr Wolfe sought to distinguish those cases from the present on the basis that in both instances the child was being used for the purposes of advancing an appeal rather than, as here, responding to an appeal. In my judgment the distinction is obvious but is immaterial to the operation of the principle.

Mr Wolfe pointed out that Mrs K, being a person of limited income, was nevertheless not within the financial bands qualifying for legal assistance because she owned a property. He submitted that the child A was clearly an interested party because he had an interest in the outcome. He therefore applied for the child to be joined as an interested party, because he had an interest in the outcome and because it was not in the interests of justice that the appeal should go ahead unopposed.

The right of appeal from the Tribunal to the High Court is a statutory right pursuant to Section 11(1) of The Tribunals and Inquiries Act 1992 which gives that right to “any party to the proceedings before any Tribunal”. The parents, and not the child, are parties to the Tribunal proceedings – see S v Sent & City of Westminster 1996 ELR 228. CPR 52.1(3)(e)(ii) defines a respondent to an appeal to the High Court so as to include a person other than a party to the proceedings in the lower court “who is permitted by the appeal court to be a party to the appeal”. The court should not permit an interested party to be joined to an appeal where an existing party can raise any issue in connection with the appeal, without the other person affected being joined. There is no issue in this appeal which cannot be considered at the suit of the respondent to the appeal and there is no issue which requires the child to be joined as an interested party. The only interest which could be served by joining the child as an interested party would be to provide legal representation for the response by the mother to the appeal. I therefore declined to exercise my power to permit the child to be joined as an interested party.

Notwithstanding that decision, and having regard to the fact that Mr Wolfe had prepared for the appeal, submitted a skeleton argument in respect of it and was in court and available with the advantage of public funding for the occasion, I concluded that it was enough if I took the following course:-

At the date of the preparation of the Special Educational Needs Statement A was receiving ABA provision according to a programme which his parents had arranged for him. Part 4 of the Statement headed “Placement” stated:-

“The LEA considers that the provision specified in Part 3 could be made in a specialist unit attached to a mainstream school. Such provision is not available at this time. A’s parents have arranged for him to undergo an ABA programme. The LEA will fund this up to a maximum up to £17,136 per annum subject to review.”

In the grounds of the appeal by the mother to the Tribunal the mother requested that reference to the ABA programme should be contained in Part 3 of the Statement and went on to state:-

“We would like a paragraph added to Part 3. Suggested wording as follows: A should continue to follow an individually tailored ABA at present. The programme will be run and supervised by a trained ABA supervisor and delivered by a team of therapists and tutors, with input from an ABA consultant on an occasional basis throughout the year. The programme should involve close liaison with the speech and language services and A’s parents. Gradual integration into an appropriate mainstream primary setting will be considered when and if all professionals working with A and in direct consultation with his parents mutually agree that it is appropriate that he is emotionally and verbally ready.”

It would seem that as a result of the appeal the appellant provided a draft by way of suggestion for the appeal which was as follows:

“Placement

Because of the lack of alternative specialist provision A should continue to follow an individually tailored ABA programme at present and the LEA will fund this by the sum of £17,136 per annum or higher. (There will be an annual increment, which takes effect at the start of each financial year and is in line with the inflation rate as notified by the Council’s Finance Department.) The programme will be run and supervised by a trained ABA supervisor and delivered by a team of therapists and tutors, with input from a visiting ABA consultant on an occasional basis throughout the year. The programme should involve close liaison with the speech and language services and A’s Parents. The LEA will continue to fund the programme until such time as an amendment to the statement is made.”

The decision of the Tribunal is as follows:

“G. With regards to the inclusion of the ABA provision in Part 3 or 4 we kept in mind the following legislation:

Further to s324 Education Act 1996 and Regulation 16 Education (Special Education Needs)(England)(Consolidation) Regulations 2001

A statement shall-----

(a)

be in a form substantially corresponding to that set out in Schedule 2 to these Regulations (ie Education(SEN)(Consolidation)Regulations 2001;

With reference to provision within Part 3 of a Statement of special educational needs, Schedule 2 states as follows

[Here specify the special educational provision which the authority consider appropriate to meet the needs specified in Part 2 and to meet the objectives specified in this Part, and in particular specify----

(a)

any appropriate facilities and equipment, staffing arrangements and curriculum,

We found that the description of the ABA, which we ordered to be included within the statement, described facilities and staffing arrangements. It should thus be included in Part 3. Further it was provision which had been recommended by professionals, for example Dr Keen as appropriate.

We have thus placed this provision within Part 3.

We have deleted the requested amendment to paragraph j as being superfluous.

H. We have omitted sections within the requested provision relating to mainstream school and 1:1 provision in that setting because we thought that this related to future provision. A would have changing needs and we agreed that we could not make a binding order for future provision when we had little information regarding the type of school that A would attend nor its resources.”

Mr Oldham, for the LEA, submitted that it was inappropriate for the Tribunal to include within Part 3 of the Statement educational provision which was more than appropriate to meet the needs specified in Part 2 of the Statement. He relied upon the cases of Surrey County Council v P & P 1997 ELR 516 and Richardson and Others v Solihull MBC and Others 1998 ELR 319 in support of that principle. It is to be noted that the principle derives from cases where there is a point before the Tribunal in connection with the resources of the LEA and the provision which can be provided. In such circumstances because the resources of a LEA as a public authority can have a relevance to the proper outcome, the cases establish that more than that which was appropriate should not be included in the special provision within Part 3 because that would be expenditure of more than was necessary of public funds for the needs of a particular pupil.

The difficulty for the appellant in relying upon that principle in connection with the facts of this appeal are that the ABA programme, which was mentioned in Part 4, whilst being a more expensive programme than that which was reflected in Part 3 as being required (namely mainstream school with a specialised unit) was available at the time of the appeal, whereas there was no vacancy in a mainstream school with a specialised unit. Therefore provision by way of an ABA programme was not more than was appropriate at the time of the Tribunal’s decision, but could in the event that an appropriate vacancy in a mainstream school with a specialised unit became available, become at that point more than was appropriate.

Contrary to the submission made for the LEA I can find no fault with the Tribunal’s decision in so far as it identified the fact that ABA amounted to “facilities and staffing arrangements” within the meaning of Schedule 2 to the Regulations. Mr Oldham did not submit otherwise. Secondly it had been recommended by some professionals as appropriate and it was common ground between the parties that it was appropriate at the time of the hearing, notwithstanding that it was the local authority’s case that it may be substituted by education in a mainstream school with a specialised unit at a later date. Further the Tribunal appear to have had an issue before them, raised by the mother, as to whether there might not be an occasion for consideration of mainstream school without a specialised unit as opposed to mainstream school with a specialised unit, and that pending the former the ABA programme should continue. I regard the decision of the Tribunal as reflected in paragraph H of its decision, which I have quoted above, to be to the effect that they felt the future position was uncertain so far as mainstream school was concerned, whether with or without a specialised unit, and that it was better to leave the matter over so that it could be resolved later in the light of facts that would then be available. I can see no basis for impugning the legality of that approach.

Mr Oldham submitted that if his argument was correct then the LEA would achieve the advantage that there would be no need for Part 3 to be amended in the event that a vacancy in a mainstream school with a specialised unit became available. That may well true. But having regard to the terms of Part 4 and the deletion from the proposal made by the LEA of the words –

“Because of the lack of alternative specialist autistic provision”

and also the deletion of the words:

“The programme will be run and supervised by a trained ABA supervisor and delivered by a team of therapists and tutors, with input from a visiting ABA consultant on an occasional basis throughout the year. The programme should include close liaison with the speech and language services and A’s parents. The LEA will continue to fund the programme until such time as an amendment to the statement is made,”

the position according to the Tribunal’s decision stood as –

“A should continue to follow an individually tailored ABA programme at present and the LEA will fund this by the sum of £17,136 per annum or higher. (There will be an annual increment, which takes effect at the start of each financial year and is in line with the inflation rate as notified by the Council’s Finance Department.)”

In those circumstances whether or not an amendment to Part 3 would have been required, plainly before A can go to a mainstream school, as proposed, there needs to be an amendment to Part 4.

Conclusion

Where in respect of any child educational provision, for example by way of an ABA programme, is appropriate, it should be included within Part 3. If a qualification exists in connection with that special provision and its appropriateness, for example, that it is only appropriate by reason of the absence of special provision in a specialized unit in a mainstream school, then that should also be stated in Part 3. As to Part 4 there is no reason why, if it is considered necessary, it should not contain reference to the ABA programme as the measure which is appropriate for the time being and a reference to the type of school to which a placement would be appropriate in the event one becomes available. For these reasons this appeal is dismissed.