R (on the application of) v Waltham Forest Special Educational Needs and Disability Tribunal

J U D G M E N T

1. MR JUSTICE BEATSON: In this case, Mrs L is appealing pursuant to the Tribunals and Inquiries Act against the decision of the Special Educational Needs and Disability Tribunal dated 16 April 2003, dismissing her appeal against the contents of a statement of special education needs made by the defendant Council for her son, G, on 16 October 2002.

2. The grounds of appeal are that the Tribunal erred in law in concluding that the school was meeting G's needs, and it was thus appropriate, by reference to P scale scores. This was in the face of evidence that, (1) G was actually regressing, at least by the time of the Tribunal hearing; and (2) that the P scale scores in question were misleading in showing relevant progress, in particular:

(1) the evidence in question was not contradicted such that the Tribunal's contrary conclusions unsupported by evidence are perverse;

(2) the Tribunal unlawfully failed to give proper reasons for rejecting that evidence, including for not accepting the expert evidence of Mrs Burgess on the point; and

(3) insofar as the Tribunal relied on its own expertise in the matter, the Tribunal unlawfully failed to give the appellant an opportunity to deal with that evidence.

3. At the hearing, Mr Wolfe, on behalf of the appellant, did not pursue the first ground. It was agreed that there was evidence for the Tribunal's conclusion. He focused his submissions on the absence of proper reasons and the fact that, if the Tribunal had relied on its own expertise in the matter, it did not give the appellant an opportunity to deal with the matters arising from its expertise.

4. G is 6. He has an autistic spectrum disorder and is substantially delayed in all his skills. Since 2000 he has had a statement of special educational needs within the meaning of Part 4 of the Education Act 1996. Since September 2001, he has attended a maintained special day school. Following his annual review in 2002, his mother considered he was not making progress and his case was referred to the Special Educational Needs Panel of the LEA. The LEA accepted that there might be difficulties and proposed that an educational psychologist should review the strategies to support the child in the school.

5. G's mother had requested the Panel to fund a LOVAAS home based programme for him. She and her husband had attended a meeting at which such programmes were discussed and decided that such a programme would help their son in a more satisfactory way than the school. The Panel considered this but rejected a home-based LOVAAS programme, although it accepted that there might be difficulties where G was not making sufficient progress. His statement was amended on 16 October, but not in the way that his parents wished. The statement specified a school based programme. Mrs L appealed to the Tribunal. She argued that G had not made sufficient progress in the maintained special day school in which he had been placed, and asked the Tribunal to order the local educational authority to fund a LOVAAS programme at home. The Tribunal rejected her appeal.

6. Her evidence to the Tribunal consisted of two statements. She described her fears about G's progress and the fact that since going to school, he had changed from a happy child to one who was unhappy. She first became aware of these difficulties from his behaviour and his reluctance to go to school. He became a child with very challenging behaviour. Before the Tribunal, evidence was given in support of G's mother by Ms Naomi Burgess, an educational psychologist who had assessed G at the school on 31 January and 4 February 2003. She also had the annual reports and other documents concerned with his progress, including his parents' views.

7. In her report dated 12 February 2003, Ms Burgess stated that the main difference for G between school based and LOVAAS learning will be "the minute detail of the task analysis as each programme is broken down for him and the small time lag between response, repetition and reinforcement". She stated that G appears to learn "almost exclusively through direct teaching and reinforcement with physical prompts rather than learning incidentally through being in a group with other children". Her discussions with G's school indicated to Ms Burgess that it did not offer the particular style or approach for which G's mother was searching and which she believed was likely to support G more fully in learning to respond, socialise and learn. In conclusion she believed that G required:

"An environmental and teaching plan which operates on a finely tuned behavioural model in order to teach him early learning, socialisation and language skills which most children learn through play. Most importantly he needs very focused training to increase his attention focus and reduce his inappropriate learning behaviours, and this focus needs to be part of each teaching element . . .

"Observations would indicate that G is not benefiting from incidental learning from modelling on the other children and that he actually needs to build up a learned social repertoire, which is then practised, to consolidate that learning."

8. After referring to the fact that the process used at his school can be operated in a highly structured manner and with flexibility, she stated "in this instance it seems that G is reaping little benefit from the system in operation".

She stated that G would need:

"Tuition delivered on a tightly organised behavioural schedule in an environment with minimal distraction.

"One-one tuition delivered by an ABA consultant who will be trained and monitored according to their professional recommendations."

An ABA consultant would be a person who would deliver the LOVAAS programme.

9. As well as evidence from Ms Burgess, the Tribunal and G's mother, the Tribunal had before it G's annual reports and assessment using a measure called the P scales. The LEA's case was presented by Ms Sharon Joseph, their SEN strategy and support manager. Ms Joseph accepted that a LOVAAS approach was appropriate for a person in G's position, but it was not necessary in his case because his current school was making suitable provision and his needs could be addressed in school. She stated that he was making progress and that progress had been assessed by the school in certain curricular areas using the P scales.

10. G's mother stated that she had taught herself the LOVAAS approach and had conducted a daily one hour session with G at home. She stated G had made progress and that, although he lost some skills, he still remembered others. She considered these sessions showed that a LOVAAS approach was appropriate and the best way of enabling him to progress.

11. In its decision, the Tribunal first set out the facts and the evidence. Apart from evidence that I have mentioned, it stated in relation to Ms Burgess's evidence that, although his school offered its own approach to children with difficulties such as G's, her:

" ... discussions at [the school] indicated they do not offer the particular style or approach for which Mrs L is searching and which [she] believe[s] is likely to support G more fully at the moment in learning to respond, socialise and learn."

It was also said in the "facts" section that G was not benefiting from incidental learning. The passage which I have quoted from Ms Burgess's written report is in substance set out again.

12. I turn to the conclusions. The relevant passages regarding the disputed part of the statement, Part 3, are those in paragraphs c to g, which I set out in full:

"c. The amendments requested to Part 3 of the statement specify an ABA/LOVAAS programme delivered at home apart from one morning attendance a week at a maintained school. We have proceeded to consider whether or not G's needs can be met in a school and if they are met at [his school].

D. We have considered G's IEP in the light of comments made by Mrs L and by Mrs Burgess. The IEP contains evidence of autism specific approaches, indeed Mrs Burgess noted relevant specialist programmes that are used. She made several criticisms of the teaching environment and cast some doubt on the specialist training and expertise of G's class teacher. This was not accepted by Ms Joseph who stated that the school's purpose is to meet the needs of pupils such as G.

E. We accept that the annual review reports for June 2001 and June 2002 indicate progress. This is based on the P scale scores which clearly show an increase in the skills measured and the descriptive comments in the reports.

F. We conclude that G has progressed at [his school], his progress over the time he has been there is adequate taking into account his assessed learning difficulties, provision at [the school] is meeting his needs.

G. Following f, we are satisfied that G's needs can be met at a school. He is at [his school], and it is practical and appropriate that he continues there. Bearing in mind section 319 of the Education Act 1996, it is not necessary for us to consider whether his needs should be met by home provision as provision in school is appropriate."

13. I turn to the law. There is a burgeoning line of cases on the duty of Special Educational Needs Tribunals to give reasons. The statutory requirement is that reasons be given in summary form. The principles have been set out in particular, in Lucie M v Worcestershire County Council [2002] EWHC Admin 1292, at paragraphs 10 and 11 and elaborated by Leveson J R(M) v Brighton and Hove City Council [2003] EWHC Admin 1722. I have also been referred to H v Kent County Council [2000] ELR 600; J v Devon County Council [2001] EWHC Admin 958; R v Mental Health Review Tribunal ex.p Clatworthy [1985] 3 All ER 699; S v Special Educational Needs Tribunal [1995] 1 WLR 1627; and Oxfordshire County Council v GB [2001] EWCA Civ 1358. As Leveson J stated in the Brighton and Hove case, it is not necessary to repeat the legal framework established in these cases and set out by Lawrence Collins J in Lucie M v Worcestershire County Council . I confine myself to summarising those aspects of the requirements which are central to this appeal.

14. Reasons must, first, deal with the substantial points that have been raised so that the parties can understand why a decision has been reached. This is seen from S v SENT and the Lucie M case. In H v Kent , Grigson J stated that what was necessary was that the aggrieved party should be able to identify the basis of the decision. Secondly, a specialist Tribunal, such as the Special Educational Needs and Disability Tribunal, can use its expertise in deciding issues, but if it rejects expert evidence before it, it should state so specifically. In certain circumstances it may be required to say why it rejects it: see H v Kent , per Grigson J at paragraph 50. Thirdly, mere recitation of evidence is no substitute for giving reasons: see J v Devon County Council , per Gibbs J at paragraph 50. Fourthly, and linked to the second point, where the specialist Tribunal uses its expertise to decide an issue, it should give the parties an opportunity to comment on its thinking and to challenge it. That is established in the Mental Health Review Tribunal context by the Clatworthy case, and in the context of this Tribunal in Lucie M v Worcestershire County Council .

15. Mr Wolfe submitted that, on the principles identified in these cases, this decision was flawed. The central issue was whether G was progressing at his school. There was evidence by his mother and Ms Burgess that he was not. There was also the evidence provided by the annual reports, which were based on the P scores indicating that there was progress, and there were the P scores themselves.

16. Mr Wolfe's submission was that the issue of progress at this school was so central that the various facets of it had to be dealt with in the reasons for the decision.

17. With regard to the P scores, Mr Wolfe pointed to two aspects. First, that adverted to in the decision in paragraph 8 where it is recorded that Ms Burgess stated that the evidence of progress at his school measured by P scores might be misleading in that very little progress needs to be made to show such an increase. Ms Joseph submitted that G's progress was significant. She commented that the ABA/LOVAAS approach required reliance on even smaller incremental steps. Secondly, there were the fears of G's mother that, in an effort to be positive, this school had scored G more highly on the P scales than he merited. The first is a point about the significance of the P scores. The second is a point about their accuracy in this case. This was loosely referred to as "grade inflation" during the hearing.

18. The next facet concerned whether there was a need for a home based approach. Mr Wolfe submits that it must be inferred from the conclusions that the Tribunal disagreed with Ms Burgess's evidence that there was. They do not say, however, that they disagree with her conclusions favouring a home based approach. They do not say that they disagree with her on the models; and they do not say why they disagree with her as to whether G could benefit from the school based approach.

19. There was an issue as to what exactly was said in evidence. In her report, Ms Burgess states that she concluded that G was not benefiting. In a statement for this hearing, she states that she told the Tribunal that G had made little or no progress in the key areas of vocalisation, verbalisation, language comprehension or early literacy. The notes of the Chairman were made available and he has helpfully read and had transcribed what he considered to be the relevant parts of his manuscript note which had proved difficult to read. His note is that Ms Burgess said:

"P scores -- all below level 1 represent smaller increments of improvement. Eg, reading, for example -- still needed adult to focus on it. Writing gone up two levels, but can't write 'G' without an adult helping. I am unclear as to what areas he has advanced or whether valid or appropriate other than maturity."

20. Mr Milford submitted that Ms Burgess was unsure on this. In truth, her report, and what the Tribunal records of her evidence, was that G was not progressing at the school. Mr Wolfe submits that, whereas paragraph 8 of the decision, which I have set out above, identified a dispute as to the teaching environment, it was not resolved in the conclusions. That dispute was also set out in paragraph d of the conclusions, but again not resolved. He concludes that, although one can infer that the Tribunal rejected Ms Burgess's evidence, on the principles in H , Lucie M and Clatworthy , one does not know why. The reasons are defective because of that.

21. On behalf of the local authority, Mr Milford submitted that one had to look at all the evidence before the Tribunal. This included the annual reports, which unlike Ms Burgess, who was only able to give a snapshot of progress, measured progress over a full year; the P scores; the descriptive comments in the annual reports; and the statements including those in Ms Burgess' report that G appeared to be happy at the school after a bad spell. He submitted that the reasons given were satisfactory and that there had been no exclusive reliance on the P scale scores. What there was was reliance on the scores and the descriptive comments in the annual reports which had not been challenged.

22. As far as the P scale scores were concerned, Mr Milford submitted that the difference identified in paragraph 8 of the factual part of the decision was resolved. This was because it was clear that, while little progress may be signified by a substantial increase in scores, the LOVAAS approach also relies on small incremental steps. Indeed Ms Joseph had commented that they were even smaller steps and this was because of the nature of autism.

23. He relied on the transcription of the Chairman's notes. Which recorded Ms Joseph stating that:

"Progress P scores do represent small increments of improvement. Nature of programme being suggested depends on very small steps. Regression -- the nature of autism is this -- description of child who starts off well and then loses skills -- this is autism -- not that [the school] is not working."

24. So he submits that if one takes paragraph 8 from the factual section and puts it together with what is stated in paragraph e of the conclusions section, the matter is dealt with.

25. I have concluded that what has been stated not sufficient. The key question in this case related to progress at the school. The evidence from the mother and the expert was that there was no progress. This was rejected on the basis of, apparently, the P scale scores and the annual review reports. In those circumstances, it is incumbent on a Tribunal to give a brief reason as to why this is so.

26. If it is because of the expertise of the Tribunal then, as Mr Wolfe submitted and as is now standard practice in Mental Health Appeal Tribunals, the expert member of the Tribunal should put, either directly or through the Chair, the point to those representing the parties at the hearing. Not to do that and not to give an explanation does, I have concluded, constitute an error of law and for that reason I allow this appeal.

27. MR WOLFE: My Lord, I am obliged. My Lord, can I ask, therefore, that your Lordship make an order quashing the decision of the Tribunal and remitting the appeal back for reconsideration by a fresh panel?

28. MR JUSTICE BEATSON: Yes.

29. MR WOLFE: Secondly, can I ask for an order that the respondent local authority pay the appellant's costs -- to be assessed if not agreed? Finally, Mrs L has the benefit of a public funding certificate, so can I ask that her publicly funded costs be assessed under the Community Legal Service Costs Regulations?

30. MR MILFORD: My Lord, I cannot resist any of that.

31. MR JUSTICE BEATSON: You cannot resist any of that. The matter will be remitted to a differently constituted Tribunal. The appellant's costs are to be assessed under the Community Legal Service Costs Regulations if not agreed.

32. MR WOLFE: My Lord, I am grateful.