D, R (on the application of) v Special Educational Needs Tribunal

1. MR JUSTICE WALL: This case concerns the special educational needs of a young boy whom I will call H. H was born on 14th November 1989, and he has the misfortune to suffer from exceptionally severe dyslexia. Before the court is an appeal by H's mother, D, against the decision of the Special Educational Needs and Disability Tribunal sitting on 17th September last year, with reasons given a few days later on 26th September. The order made by the Tribunal was to direct the Local Education Authority, which in this case is the Bristol City Council, to make certain agreed amendments to H's statement of educational needs, but otherwise to dismiss D's appeal against the contents of that statement.

2. Underlying that terse synopsis is the following central dispute: the Local Educational Authority, in part 4 of the statement, which deals with placement, and which sets out the type and name of the educational setting which the Local Education Authority considers appropriate for H, stated that: "H's needs can be met in a resource base attached to a main-stream school". It identified a school known as Monks Park School as being appropriate for H.

3. D emphatically disagrees with that assessment. She submits, as she submitted to the Tribunal, that H's needs are quite unsuited to a resource base attached to a main-stream school. She argues that he needs a specialist school. She has identified Mark College, which is a specialist school for dyslexic pupils. Thus, she sought to persuade the Tribunal to alter the statement to provide for H's placement at Mark College; she was unsuccessful and she now appeals to this court.

4. Neither the Tribunal nor the Local Educational Authority appears today. Both have written to the court. On 18th November 2002 the Head of Legal Services for the Bristol City Council wrote confirming that the council would not be contesting the claim in this matter and asked to be advised of the outcome of the appeal, and on 19th December the Treasury Solicitor indicated that the Special Educational Needs and Disability Tribunal did not intend to attend or be represented at the hearing today. That means that Mr Friel for the appellant has not had an opponent and it has been necessary for him, and I am very grateful to him for it, to go very carefully through all the relevant material, because in order to succeed in an appeal the appellant must establish that the Tribunal, in reaching its decision, erred in law. Mr Friel has also given me an extremely helpful skeleton argument which charts its way carefully and skilfully through the statutory provisions and the relevant law.

5. I begin, therefore, as Mr Friel does, with a brief chronology. H originally attended a state primary school, Stoke Bishop Primary School, and it is very clear that that was not a success. By the time he was transferred by his mother to a specialist school, Belgrave School, in September 2000 when he was rising 11, he was functionally illiterate for his age and had suffered a serious deterioration in his self esteem. He was isolated in his peer group, dependent on his mother and unwilling to go to school. Belgrave School is a specialist school for children suffering from severe dyslexia, which adopted a holistic approach.

6. Much of the background and the history is contained in a very helpful report, which was before the Tribunal, by an educational psychologist, Doctor Sharon Lloyd, who reported on the 14th March of last year at a time when H was still attending Belgrave School. She commented that he had fallen seriously behind at his primary school. The report she made indicated this:

"His current school recommends a school that is able to support students with dyslexia and also indicates a 'withdrawal unit would be inadequate to meet his needs' and that 'he needs specialist multisensory teaching across all subject areas'. D agrees with this view of H's needs. D and H have visited Castle School and Mark College. H has spent a day at Mark College and feels it would meet his needs in a manner not available at Monks Park. The College are clear that they can offer H appropriate support and input."

7. Slightly later Dr Lloyd records that, historically and now, it has always been important for H to be with friends. Some of his friends are transferring to Mark College and H is optimistic this will help ease him into boarding.

8. That, in a sense, has slightly anticipated the chronology because, as Mr Friel points out, when H was transferred to Belgrave School prior to going on to secondary education, he had been assessed by an educational psychologist. That assessment demonstrated that he had a reading age of less than 6 years, a word reading age of 5 years 1 month, a numeracy age of 5 years 4 months and a spelling age of 6 years 1 month. He was of average ability, but he had not learned any effective literacy or numeracy skills during the period of time he had been at primary school. The tests, Mr Friel points out, start at this level, and he did not even register on some. He had acquired most skills in his first years at the school. This point is of importance, if again I could take matters slightly out of chronological order, because the Tribunal have found, and it is a finding criticised by Mr Friel, that there was in effect no evidence that specialist teaching at Belgrave School had benefited H, and that he had not improved as a result of attendance at that particular resource.

9. The initiative to send H to Mark College was taken by his mother, who is currently paying his fees. He is a weekly boarder at Mark College, and the evidence, such as it is, appears to be that he is doing well. However, as I have already indicated, D was unable to persuade the authority to support and endorse that placement. That, in a nutshell, is the background.

10. Section 324 of the Education Act 1996 provides for statements of special educational needs, and under Section 326 an appeal lies to the Tribunal in relation to the contents of any statement. The Tribunal has the power to dismiss the appeal, to order the authority to amend the statement, or to order the authority to cease to maintain the statement. I have already given the outcome of this case.

11. The amended grounds of appeal are carefully drawn and take two essential points. First of all, if I may put it in basic language, they argue that the Tribunal simply had certain facts wrong and therefore acted irrationally. Secondly, perhaps more importantly, the Tribunal failed to give any adequate reasons in relation to the expert evidence which was called on behalf of the appellant, and in particular the evidence of the psychologist, Dr Lloyd, and Mrs Jones who was the specialist head teacher at Belgrave School.

12. There is a third point which is, I think, of less significance on the facts of this case, and that is that the Tribunal may improperly have used its own expertise without fully explaining why and how it was doing so.

13. Mr Friel argues that in order to understand the grounds of appeal, one must look at the reasons given by the Tribunal. The statement of the facts of the case are not essentially contentious, except the assertion at paragraph 8 that:

"Whilst H's self confidence has improved considerably, he has made little progress with regard to his specific level difficulties in the holistic environment."

14. Also a reference to the evidence of Mrs Jones and Dr Lloyd in paragraph 15 which states:

"H's problems were so severe that this mainstream provision could be viewed as inappropriate. This view was supported by both Mrs Jones and Dr Lloyd, both of whom considered that a continuation of a small holistic environment was needed to boost H's self esteem and to ensure continued academic progress."

15. There accordingly, in a nutshell, is the argument being put forward by his previous head teacher and the educational psychologist called on the appellant's behalf.

16. The Tribunal's reasons begin with the proposition:

"A. The parties were in agreement that the specific learning difficulties faced by H are at the extreme end of the spectrum of the difficulty. Whilst the Tribunal noted that both Mrs Jones and Ms Lloyd viewed his difficulties in the context of their professional lifetime, we accept the evidence of Ms Coull that H was not exceptional in the context of a city wide secondary school resource for which the admission criteria is a reading age of 6.7 or less."

17. I should say that Mrs Coull is the Head Teacher of Monks Park.

"B. [The Tribunal] recognise that D would prefer her son to attend Mark College. We accept that Mark College could meet H's special educational needs and that the quality of provision in a holistic environment is extremely high."

18. They also record that the Local Educational Authority accepted that. Thirdly:

"C. A day placement at Mark College is not considered appropriate by D. Having heard the arguments put forward on her behalf, we were not satisfied that H's needs are such that they can only be met in a residential placement. She did not wish any other placement to be considered. Whilst we appreciate that there are facilities and opportunities from which he would doubtless benefit (eg cooking and gardening) these additional facilities are not considered to be necessary to meet his special education needs.

"D ... the Tribunal can only consider a place at Mark College if the LEA is not able to make appropriate provision. Mr Cox indicated from the outset that if the LEA were to establish the appropriateness of its own provision that placement at Mark College must be viewed as unreasonable public expenditure.

"E. The Tribunal recognise that in Mark College and the resource unit at Monks Park it was faced with two very different learning environments. No general criticism of either provision was made at the hearing. The concerns of D focussed on her very real concerns that H would not only fail to make progress at Monks Park but that he would also lose the improved self esteem that has been hard won at his time at the Bristol Dyslexia Unit.

"F. Mrs Jones is very keen for H to attend Mark College. Its ethos echoes the holistic, specialist approach that is adopted at the Centre. In spite of the intensive support of specialist teachers, there is no evidence of any real improvement in the acquisition of literacy skills in H's two years at the Centre. There was no evidence to suggest that comparable provision is likely to result in any significant improvement in H's literacy skills.

"G. Whilst the Tribunal has doubts as the benefit to H of more of the same type of provision, we have no means of predicting what he might achieve in the highly regarded resource base at Monks Park. We share the confidence of all of the witnesses at the hearing as to the high quality of that provision. There is no evidence to suggest that H's progress would be any greater if he were to be placed elsewhere.

"H. The Tribunal appreciates the concerns for H's self-confidence. We do not, however, accept that these concerns can only be addressed in a residential placement.

"I. At the end of the day, the Tribunal was faced with a very difficult decision and we are indebted to D for her very considerable cooperation with the LEA and Monks Park School that enabled the Tribunal to consider all possible evidence in reaching a decision. We are also indebted to Ms Coull for her detailed evidence regarding the provision at the resource base in Monk's Park. We were persuaded by her evidence. On balance we conclude that Monks Park's resource base can provide appropriately for H. In so doing we note the flexibility of the provision and accept that within the setting of the resource it would be impractical to quantify or specify that provision. Whilst we cannot predict the level of progress H will make, we are satisfied that the provision is both appropriate and adequate to meet his needs.

"J. We do not consider that the additional amendments proposed to Part Three of the Statement are necessary as we are of the opinion that the provision is properly described within the agreed statement. For a child of H's extreme level of difficulty we consider that it is acceptable in the circumstances for the modern language requirement of the National Curriculum to be disapplied."

19. Although I have quoted briefly from Dr Lloyd's evidence, I think it is also important to look at the evidence of Mrs Jones. In her statement she told the Tribunal that H, sadly, was one of the most severely dyslexic children she had met in her 35 years of experience and explained that when he came to her school he could not even sound the letters of the alphabet. He had very low self-esteem and no self-confidence. She also told the Tribunal that H could now read at a basic level, and that the results which had been achieved at her school could vary according to how tired he was, but on a good day he could read at the level of an 8 year-old. His reading age when he came to the school was below the starting level for reading tests, which start at 6 years 1 month.

20. Mrs Jones told the Tribunal that she was extremely surprised to read in the final decision letter that there was: "No evidence of real improvement in the acquisition of literacy skills", and she points out that this did not accord with the evidence she had given; that H had made progress of which he was legitimately proud. She also states that she was clear in her evidence that with her knowledge of the Monks Park resource base, H "would not succeed or achieve that progress. I felt that a placement at the preference, Mark College, would be suitable and would enable him to make the greatest progress".

21. Mrs Jones pointed out that Mark College uses similar teaching approaches to her school, and more importantly had a similar whole school approach which meant that H would be among peers with specific learning difficulties. She was of the opinion that a placement at that school was the most suitable and appropriate continuation of H's education. She was concerned, she says, to learn that he would at times be in large classes at Monks Park with the need to move around the school. She was particularly concerned that he would have problems finding his way from class to class. She pointed out that the appellant had expressed her concern that H could be the subject of bullying. She shared that concern and felt that with his previous unhappy experience at a mainstream school, a placement at Monks Park would simply not be successful.

22. Mrs Jones therefore was of the opinion that Mark College would follow on the teaching methods that she had adopted and would be more than capable of ensuring that the progress he had made would be developed still further. The whole ambience of the school was geared towards children such as H, and that was essential for his education.

23. The reason why Mrs Jones felt that H could not succeed at Monks Park was that it was a fragmented approach. He would have some specialist teaching in the resource base which he would not be able to transfer easily into the mainstream classroom. He would have problems in a large class of 30 and would not be getting the level of specialist support that he clearly needed. His short term memory was such as to make it difficult for him to find his way around the school and there was a potential problem of bullying.

24. Mrs Jones therefore confirmed the view which she expressed at the Tribunal that H had made progress at her school and believed that he could build on that progress if he attended Mark College. She did not believe that he could make any progress at Monks Park because of the severity of his condition. She accepted at the Tribunal that other less severely affected children had done well at Monks Park, but that placement was not appropriate for H.

25. The principal thrust of this appeal is that in its reasons, the Tribunal simply does not address the expert evidence given by Dr Lloyd and Mrs Jones. This, of course, immediately raises the duty of a tribunal in a situation such as this to give reasons, and the extent to which in its reasons the Tribunal is required to analyse the evidence and make findings of fact. The statutory provision provides for the Tribunal to give reasons in summary form, and nobody would expect the type of judgment which would follow a civil action with detailed analysis of the evidence and findings as to credibility, but, in my judgment, essential reasons must be given dealing with the substantial issues raised before the Tribunal so that the parties can understand why the decision has been reached.

26. This was the approach adopted by Latham J, as he then was, in the case of S (A Minor) v Special Educational Needs Tribunal , and I respectfully agree. I am fortified in the fact that, as Mr Friel pointed out, this approach has been subsequently applied in a number of cases, some of which are before me and to which I have been referred. Particularly where expert evidence has been given, the parties, in my judgment, are entitled to know if the evidence has been rejected, why it has been rejected. It is, in my view, quite insufficient simply for a tribunal to record the position of the expert and then fail to explain why it is departing from that view.

27. Mr Friel accepted very frankly in argument that if the Tribunal, even in a paragraph or so, had assessed the respective views of Mrs Coull, Dr Lloyd and Mrs Jones and had explained why they preferred the views of Mrs Coull to those of Dr Lloyd and Mrs Jones, he would probably be unable to argue the appeal, because the central decision making process here is for the Tribunal. It is not for me to impose a solution. My function is a limited one; to see whether or not in meeting its conclusion the Tribunal fell into any error of law. Having read out the reasons, as I have done in full, I feel constrained to agree with Mr Friel that the Tribunal has failed to explain why it was that the evidence of two expert witnesses, both of whom have a very full knowledge of H, was rejected. And once a flaw in the reasoning process of that nature has been detected, the reasoning process is inevitably vitiated and the conclusion cannot stand. In my judgment that is what has happened here.

28. I also think there is considerable force in Mr Friel's point that the Tribunal was simply wrong, plain wrong, when it found that there had been no improvement, no progress made by H at Belgrave School, and I agree with him that that also casts doubt on the validity of the decision.

29. In these circumstances I have no hesitation in coming to the view that the Tribunal did err in law in reaching its conclusion, that its decision is vitiated by the two principal failures which Mr Friel has identified and which I endorse. Accordingly the decision cannot stand and must be set aside.

30. In these circumstances I do not think it is necessary to consider the third point raised by Mr Friel: namely the fact that the Tribunal may have used its own expertise without disclosing how or why it did so. The first two points are, in my judgment, sufficient. The appeal must therefore be allowed.

31. The only remedy it seems to me that I can properly impose is that which is sought in the notice, and which is that the matter must be remitted to a fresh tribunal for reconsideration. I reach that calculation with some regret, because there will inevitably be a substantial delay before a tribunal can be reconvened. H is already 13, and D has been carrying the burden of paying for his education, as I understand it, since he went to his present school, which is plainly suited to him. But it would, I think, be quite wrong for me on the material I have to attempt to substitute my own view for that of the Tribunal. Technically there may be a discretion to do so in certain circumstances, but on the facts of this case I am quite satisfied that it would be wrong and that the remedy I have outlined is the only one available. Nonetheless, I do hope that as a result of this appeal there may be the possibility of discussions and negotiations between D and the Local Education Authority to reach a mutually acceptable outcome for H's benefit.

32. The appeal will therefore be allowed, the decision of the Tribunal will be set aside and the matter will be sent to a fresh tribunal for reconsideration.

33. What about the costs, Mr Friel?

34. MR FRIEL: My Lord, before your Lordship deals with the costs, could I just mention one thing about the order. D has in fact borrowed, as she is effectively a single parent, to keep him there, because he was funded by the LEA at his previous special school, and she is re-training, so there is a need for urgency. If your Lordship could put something in the order about it, for it to be re-heard urgently --

35. MR JUSTICE WALL: Yes. I shall say the re-hearing is to be expedited.

36. MR FRIEL: I would be very grateful. The second thing is in relation to costs. Bristol City Council wrote back and said that they will not be contesting this appeal. My Lord, we would certainly seek the assessment of our re-hearing costs, under any event, in the normal way. I think I would be hard put in arguing that Bristol ought to pay the whole cost of the appeal, given that they are not contesting, given this more curious situation. I would really like to say otherwise. In cases where it has gone to the point that the judges are considering (inaudible) there has been prevarication or encouragement that they will be resisting, they have backed out at the last minute.

37. MR JUSTICE WALL: Was there any further correspondence, because it could have been open to those instructing you to have written back and said: look, you are not going to contest, can we agree to allow the appeal by consent so we do not have the cost of arguing it? If you agree that the appeal should be allowed, I am sure the attendance before the judge or even a consent order would do.

38. MR FRIEL: I have thought of all of that, but I do not have the material to put that before your Lordship, and in those circumstances, although it is a course used by some authorities and it appears that Bristol have done so, I do not have enough on my side to push a cost application honestly and fairly in front of my Lord.

39. MR JUSTICE WALL: Well, of course, you will have that. If I may say so, Mr Friel, that is consistent with the very careful and fair way you have conducted the appeal.

40. MR FRIEL: Thank you, my Lord.

41. MR JUSTICE WALL: So I shall say no orders to costs. A detailed assessment of D's costs. I am very grateful to you as well for your help, and I do hope this matter ends happily for H.