W, R (on the application of) v Blaenau Gwent County Borough Council & Anor

J U D G M E N T

Monday, 17th November 2003

1. MR JUSTICE OWEN: This is an appeal against a decision of the Special Educational Needs Tribunal, "the Tribunal", dated 30th July 2003 by which it upheld the decision of the Blaenau Gwent County Borough Council, "the Local Education Authority", to cease to maintain a Statement of Special Educational Needs for the Appellant's daughter who is 11 years of age.

2. The background:

3. S is dyslexic. In 2000 the LEA assessed her and on 4th January 2001 made a Statement of Special Educational Needs. Following a review on 24th January 2003, the LEA decided to cease to maintain the Statement. The mother appealed to the Tribunal. At the date of the decision by the LEA, S was a pupil at Q Primary School, where she received a special provision, namely two sessions of an hour to 50 minutes a week from special tutor provided by the LEA's Specific Learning Difficulties Service, and two sessions of approximately 30 minutes focusing on literacy from an SEN support nurse at the School. But by the date of the decision of the Tribunal, 30th July, S had left primary school and now attends A Comprehensive School.

4. The basis of the LEA's decision to cease to maintain the Statement of Special Educational Needs was that in the light of her changing needs, the provision that she requires could be met from the resources available to her new school, including support from the LEA's Educational Psychology and Specific Learning Difficulties Services under School Action Plus. That conclusion was upheld by the Tribunal, which set out its reasoned conclusions in detail in paragraphs A to H of the decision. It is not necessary to set out the reasons in full; suffice it to say that at paragraph H the Tribunal concluded:

"We were consequently satisfied that S's needs could be met by the provision which will be made available for her from the resources of A Comprehensive School. We therefore concluded that it is not necessary for the LEA to continue to maintain her Statement."

5. The central thrust of the argument advanced on behalf of the Appellant is that in arriving at its decision the Tribunal failed to give effect to the provisions of the Special Educational Needs Code of Practice issued by the Welsh Assembly Government under section 313(2) of the Educational Act 1986. The LEA is under a duty to have regard to the provisions of the Code, and under section 313(3) the Tribunal shall have regard to any provisions of the Code which appears to it to be relevant on any question arising on the appeal.

6. Section 8 of the Code is entitled "Statements of Special Educational Needs". In paragraph 8.2 the Code explains that the primary trigger for making a Statement of Special Educational Needs is that:

" ... the special educational provision necessary to meet the child's needs cannot reasonably be provided within the resources normally available to mainstream schools ... "

7. The provisions of the Code as to ceasing to maintain a Statement are to be found in paragraphs 8:117, 118 and 119. They provide:

"8:117 There should be no assumption that, once the LEA has made a statement, they should maintain the statement until they are no longer responsible for the young person. But a decision to cease to maintain the statement should be made only after very careful consideration by the LEA of all the circumstances and after close consultation with parents.

"8:118 The LEA may cease to maintain a statement for a child only if they believe that it is no longer necessary. The LEA should consider the results of the recent annual reviews, whether the objectives of the statement have been achieved, and whether the child's needs could be met in future within the resources of mainstream schools within the area without the need for continuing LEA oversight. The LEA should always, therefore, consider whether, notwithstanding the achievement of some, or even all, of the objectives in the statement, the child's progress will be halted or reversed if the special educational provision specified in the statement or modified provision which justified the maintenance of the statement were not made.

"8:119 The LEA may consider whether the following apply when considering if it is necessary to maintain a statement:

a. have the objectives of the statement been met

b. can the child's needs be met in future within the resources of a mainstream school

c. do the child's special educational needs no longer impede access to the national curriculum

d. does the child no longer require daily adult supervision or substantial adaptation of teaching materials to access the curriculum fully

e. can the child cope with everyday social interaction at school

f. has the child no significant self-help difficulties that require more provision than is normally available within the school."

8. Before considering the grounds upon which the appellant seeks to challenge the decision of the Tribunal it is necessary shortly to consider the history of the Statement of Special Educational Needs. An assessment of S's educational needs was requested in April 2000. After the necessary assessments had been made, the statement was issued on 19th February 2001. It is in standard form. Part 3 sets out the special educational provision, first identifying the objectives and then setting out the provision to be made by the School and, secondly, by the Local Education Authority.

9. The relevant section of the statement was in the following terms. Under the heading, Educational Provision to Meet Needs and Objectives, it read:

"When placed the school will provide:

(i) Full access to the National Curriculum with work and activities structured and differentiated to match levels of interest and ability, with suitable modifications as deemed appropriate.

(ii) A structured individual education plan which will list specific short term targets designed to improve attainment in the basic skills identified above.

(iii) Support in the context of mainstream placement, with opportunities for structured group work.

(iv) Access to specialised teaching provided by the central service for pupils with specific learning difficulties."

10. It then spelt out the provision that the LEA would make in the following terms:

"The Educational Psychology Service will provide on request:

(i) Advice and support to the school in establishing appropriate targets within the individual education plan.

(ii) Support in monitoring the individual education plan and providing appropriate information for the purposes of review.

The Service for pupils with specific learning difficulty will provide:

(i) Advice and support to the school in establishing appropriate targets within the individual education plan.

(ii) Support in monitoring the individual education plan and providing appropriate information for the purposes of review.

(iii) Regular specialist additional teaching sessions applied under the direction of the head of service in consultation with school and parents."

11. Details of the support to be provided by the Local Education Authority was sent to S's mother by the LEA in a letter dated 17th May 2001 and it was said that the additional tuition that would be provided by the LEA would take the form of two sessions, one of one hour, the other of 45 minutes per week.

12. Following the annual review of the statement, the LEA wrote to S's mother on 20th March 2003, saying that the statement was no longer required and would cease to be maintained. But the letter continued by setting out the support that the LEA would continue to provide:

"The Authority will continue to provide support for S through the Specific Learning Difficulties Service and additional time for examinations such as SATs can be provided through the school without the need for the statement to be in place.

S has made very good progress but her current school and her new school in September will still need to provide support under the Code of Practice at School Action Plus. However, the Authority is satisfied that all S's continuing needs can now be met within the resources made available to the school she attends now and in the future and that the requirement for a statement no longer exists."

13. The appeal was heard by the Tribunal on 15th July of this year. A written submission was made by the Local Education Authority. It began by stating that the information that it contained was provided "without prejudice", "to inform the processes of planning of an effective individual educational plan for S on transfer to A Comprehensive School."

14. It contained the following passage:

"S is an able pupil with specific learning difficulties in key areas of literacy and numeracy. These, however, can be effectively supported within the arrangements specified below and appropriate levels of differentiation applied by all staff who have contact with her."

15. The arrangements specified below contained the following:

"Known difficulties with elements of literacy and numeracy will need specific support from within ordinary lessons and from specialist programmes of support delivered in withdrawal, by specialist tutors from the central services for pupils with specific learning difficulty."

16. The document also set out a detailed summary of the support framework, including the provision proposed to be made by the Local Education Authority from central services. It is quite clear from the written submission that the LEA continue to regard S as having special educational needs that require to be met by the provision of support from central services in addition to the support that A Comprehensive School can provide. In essence, the LEA propose to continue to provide support at much the same level as under the Statement of Special Educational Needs. That fact is at the core of the challenge to the Tribunal's decision. The Appellant poses the rhetorical question: If the need as reflected by the provision that needs to be made to meet it is unchanged, how is it that the statement has been discontinued?

17. I turn then to the specific grounds of appeal. Mr Wolfe, who appeared for the Appellant acknowledged that the LEA and the tribunal are not obliged to follow the Code. The statutory obligation is to have regard to its provisions. But he submits that in having regard to it they must understand it and, if they decide to depart from it, must explain why, so as to enable those affected to understand the decision and, if necessary, to challenge it. He relied in support of those propositions on the decision by Mr Justice Woolf, as he then was, in Gransden v Secretary of State for the Environment (1985) 54 P&CR p.86, and in particular upon the following passage from the judgment beginning at the foot of page 93:

"What then is the significance of the inspector having failed to follow the policy? Does that mean that this court has to quash his decision? The situation, as I see it, is as follows: first, section 29 lays down what matters are to be regarded as material, and the policy cannot make a matter which is otherwise a material consideration an irrelevant consideration. Secondly, if the policy is a lawful policy, that is to say, if it is not a policy which is defective because it goes beyond the proper role of a policy by seeking to do more that indicate the weight which should be given to relevant considerations, then the body determining an application must have regard to the policy. Thirdly, the fact that the body has to have regard to the policy just not mean that it is needs necessarily to follow the policy. However, if it is going to depart from the policy, it must give clear reasons for not doing so in order that the recipient of its decision will know why the decision is being made as an exception to the policy and the grounds upon which the decision is taken.

"Fourthly, in order to give effect to the approach which I have just indicated it is essential that the policy is properly understood by the determining body. If the body making the decision fails properly to understand the policy, then the decision will be as defective as it would be if no regard had been paid to the policy.

"Fifthly, if proper regard, in the manner in which I have indicated, is not given to the policy, then this court will quash its decision unless the situation is one of those exceptional cases where the court can be quite satisfied that the failure to have proper regard to the policy has not affected the outcome in that the decision would any in any event have been the same."

18. The guidance in a planning circular can arguably be distinguished from the more flexible guidance in the Code of Practice, but I nevertheless consider that to be the appropriate approach.

19. Mr Wolfe has made a number of specific criticisms of the Tribunal's decision. First, he submits that approach of the Tribunal was fundamentally flawed, and that in asserting that it was having regard to paragraphs 8:117 to 8:119 of the Code, the Tribunal was either simply paying lip service to it or had failed to understand the relevant provisions. He submits that the fundamental flaw in the Tribunal's reasoning is to conclude that the provision that the LEA had indicated that it proposed to make for the future, was provision that could be met within the resources of A Comprehensive School when, as he submits, manifestly it could not.

20. Mr Oldham, who appeared for the Respondent sought to meet that argument first by reference to the evidence of Phillip Bowker, an educational advisor employed by the Local Educational Authority. At paragraph 4 of his witness statement of the 22nd October of this year, Mr Bowker said this:

"Mrs Hockaday and I made a point of explaining the way in which such support is delivered locally. The SpLD (specialist services) team work in all schools as a matter of course. We therefore describe these as being normally available to the school. We also talked about how the service operates at secondary level generally. This would work in roughly the same way for all 6 comprehensive schools in the LEA's area. We were at pains to clarify these points to the Tribunal as we are aware that they may not exist in other LEAs."

21. In my judgment, that evidence does not assist the Respondent. The specialist services to which he refers may, to adopt his phraseology, be normally available to the school. But he does not assert that they are within the resources of the school.

22. Secondly, Mr Oldham sought to argue that the fact that the provision made to meet the needs identified by the statement is virtually identical to the provision to be made in the future is not determinative of the issue. He argues that the decision has to be seen in the context of the graduated scale of response to those with special educational needs under the Code. It is not necessary to recite the relevant provisions. They are to be found in chapter 5 of the Code with regard to primary schools, and chapter 6 with regard to secondary schools.

23. The first level School Action (paragraphs 5:53 to 5:3 and 6:50) is triggered when a child is identified as having special educational needs and a teacher needs to provide interventions that are additional to or different from those provided as part of the school's usual differentiated curriculum offer and strategies.

24. The next stage is School Action Plus (paragraphs 5:54 to 6:1 and 6:62) where there is likely to be a request for help from services external to the school. Paragraphs 5:58 and 6:66 provide that:

"The external specialist may act in an advisory capacity, provide additional specialist assessment or be involved in teaching the pupil directly."

25. A statement of special educational needs is the third stage of the graduated response. As Mr Oldham submitted, it is plainly intended to be a flexible scheme, tailored to meet specific needs of the child in the context of the provision that can be made by the school as supplemented where necessary by the Local Educational Authority. Where an individual is placed on the scale of graduated response is a matter of educational judgment to be made in the light of the assessment of the child against the provision that can be made by the school, with or without external support.

26. But in deciding whether or not to cease to maintain a statement, the LEA or Appeal Tribunal are obliged to have regard to paragraphs 8:117 to 119 of the Code. Under both 118 and 119, consideration should be given as to whether the objectives of the statement have been met, and, secondly, whether the child's needs could in future be met within the resources of A Comprehensive School. The Tribunal answered both questions in the affirmative. It is open to argument whether the Tribunal could properly conclude that the objectives set out in the statement had been met, given that the first of the objectives was to ensure full access to the National Curriculum, and the LEA's advice to the Tribunal contained the proposal that:

"She will be disapplied from the National Curriculum for the requirements of Welsh and modern foreign languages."

27. But, more importantly, the Tribunal found that:

28. "Her needs could be met by the mainstream secondary school within the resources available to it within School Action Plus, including support from the LEA's Educational Psychology Service and tutors from the Specific Learning Difficulties Service."

29. The question posed in 118 and 119 is not whether the child's needs could be met within the school's Action Plus, which may involve some external support, but whether the child's needs can be met within the resources of the mainstream school. The answer to that question is plainly that they cannot. The bald assertion to the contrary at paragraph 8 of the decision letter, to which I have already made reference, is, in my judgment, simply wrong.

30. Furthermore, under 118:

"The LEA [or Tribunal] should always consider whether, notwithstanding the achievement of some, or even all, of the objectives in the statement, the child's progress will be halted or reversed if the special educational provision specified in the statement or modified provision which justified the maintenance of a statement were not made."

31. The word 'always' should be emphasised.

32. Again, it is clear, in my judgment, that the only answer to that question, had it been posed by the Tribunal, is that her progress would be halted or reversed if the special educational provision specified in the statement was not made. That must follow from the LEA's conclusion that a comparable level of support to that set out in the statement will continue to be required. Indeed, the Tribunal accepted that the provision proposed is in excess of that specified in the statement. It is equally clear that the question was not posed by the Tribunal.

33. It follows that in my judgment the decision of the Tribunal is flawed and must be set aside. In those circumstances it is not necessary for me to address the remaining grounds upon which Mr Wolfe relied. The decision of the 30th July 2003 will be set aside and the matter remitted to the Tribunal for a rehearing.

34. MR WOLFE: My Lord, I am grateful. My Lord, in the circumstances I ask for an order that the Respondent pay the Appellant's costs to be assessed if not agreed and also, given that the Appellant had the benefit of a certificate of public funding, that the publicly funded costs be assessed according to the Community Legal Services Commission Regulations 2000.

35. MR JUSTICE OWEN: Yes.

36. MR OLDHAM: My Lord, I accept the normal rule of costs following the events, but in these circumstances of this case I would briefly submit that the justice of the case does not perhaps require that that rule be followed. I point to the following matters: Both sides are publicly funded. To the extent that there was a fault, it is not, of course, the LEA's. Your Lordship will note that the LEA has always provided the provision that is said to be necessary. So there cannot be said to be any default on the part of the LEA. Primarily for those reasons, I submit that the appropriate order in all the circumstances is that there be no order for costs.

37. MR WOLFE: My Lord, may I deal with two of those which have come out of the blue in this way: Firstly, in relation to the both publicly funded point, my Lord, I have not got the reference to hand but there is a reference in the white book to a case called Boxhall where Mr Justice Scott Baker made it clear that the fact that the party is publicly funded should make no difference at all to the order.

38. MR JUSTICE OWEN: It may have a considerable impact on the budgets of different departments. That is the answer, really, to that argument.

39. MR WOLFE: Of course, my Lord. In my submission, that point goes nowhere. I do not take your Lordship to it unless I need to. Secondly, in relation to the no fault point, if the LEA wanted to proceed on the basis that it made no difference because they were going to continue to make the provision in any event, they could have indicated a concession to the case at the earliest possible opportunity. My Lord, they chose to fight on, no doubt seeing the - -

40. MR JUSTICE OWEN: I need not trouble you any further, Mr Wolfe. You may have your costs and you may also have your assessment of the publicly funded costs. Thank you both very much for your assistance.