Aladay, R (on the application of) v London Borough Of Richmond & Anor

MR JUSTICE ELIAS: This is a statutory appeal against a decision of the Special Education Needs and Disability Tribunal pursuant to section 11 of the Tribunal & Enquiries Act 1992. The appellant is the father of a child who has special educational needs. The first respondent is the London Borough of Richmond Upon Thames, being the relevant local education authority. They have issued a statement of special educational needs and that was the subject of an appeal to the Tribunal. The Tribunal is the second respondent, but was not represented before me this morning.

The appeal to the Tribunal was on a number of grounds, but only one question remains in issue before me. It concerns the placement specified in Part 4 of the statement. Originally this stipulated that these special educational needs could be provided at a local mainstream school. The statement added that:

On appeal the parents contended that this was inaccurate and that they only made their own arrangements because the LEA could not identify any mainstream school suited to D's needs. They submitted there was no appropriate local school and that the statement should identify St James's School which was the school D had been attending and had been funded by them for two years. A consequence of that would have been that the LEA would thereafter have had to fund D's attendance at that school: see section 348 of the Education Act 1996.

The Council contended that there was an appropriate school, namely a mainstream maintained secondary school, Christ's School. The Tribunal found in favour of the Council on this point and amended the statement so as to specify the Christ's School. It is that specification in Part 4 of the statement which is the subject of this appeal. In order to succeed, the appellant has to establish that the Tribunal erred in law.

The essential background can be gleaned from the decision of the Special Educational Needs Tribunal itself. D is a 13 year-old boy with an eye condition known as achromatopsia. This affects his colour vision and results in poor vision. He cannot see when he goes suddenly into bright light. He wears coloured contact lenses and dark glasses to reduce the glare as far as possible. Notwithstanding this disability, he is an extremely able student, highly motivated and a hard worker. He is sociable and keen to be independent. He is particularly gifted at music and art. Obviously his sporting activities are limited but he still does swimming, judo and rowing. As the Tribunal noted, his needs are in particular that he be given assistance to access materials to promote his learning and also that he should have safe physical access to his environment. He is totally reliant on help from others and is unable to anticipate any hazards which may arise. Equipment has been provided at St James' School in the form of a video light. This magnifies text on the board onto a laptop screen. This equipment will be provided whichever school he attends. The equipment is light, portable, and is apparently of invaluable assistance to D.

The LEA contended before the Tribunal that Christ's School was appropriate. It recognised that that school had had its difficulties and that there had been a disproportionate number of pupils with behavioural problems, but the LEA submitted that the standards were improving. The school was oversubscribed and the question of reintroducing a sixth form was under active review. The school was undergoing building work at the time of the Tribunal hearing. D would be placed in the top set, which would be those with the highest ability. The LEA was proposing transitional arrangements to ensure that D settled properly into the school, including the training of administrative and non-teaching staff, as well as teaching staff, and the provision of trained assistance from a Peripatetic Learning Support Assistants Service which would give full support for two weeks. Thereafter there would be ten hours a week help from a Learning Support Assistant for the first term, reducing thereafter to five hours a week.

The Tribunal heard from an independent educational psychologist that some areas of the school were very bright and could create difficulties and that, in general, D would have more changes of classroom than he would have at St James' School. The Tribunal also heard evidence from Miss Saunders, a specialist educational needs coordinator, about St James' School. It is a more academic institution than Christ's. Her evidence was that D had settled well at St James' and that a move at that stage would be difficult for him. There were still certain problems, for example more staff training was necessary and there were hazardous areas in the school, but most of the lessons took place in the classroom and D was progressing well.

The Tribunal heard evidence about the journey to school. Currently the appellant takes D on an eight minute walk to the bus stop where D catches the school bus to St James'. The parents then collect him at the end of the day from the bus stop. It was the view, however, of Ms Seymour, who had worked with D at St James' School and was a teacher for the visually impaired, that he would, with help, be able to manage the journey to Christ's, that also being accessible by a single bus journey. Mr Davies, the educational psychologist, expressed the view that there would be various difficulties with this journey.

There were also some concerns expressed about D's safety when carrying expensive equipment. Ms Seymour told the Tribunal that she had applied to the Communication Aids Project, a central government body, for an additional camera which D could keep at home. This would save him from having to take the camera back and forth from school to home.

The Tribunal's conclusions as to the appropriate school are set out in paragraph 8, D to H. The Tribunal first identified certain features of each of the schools and then set out their findings:

The Tribunal then assessed the relative cost of providing education at the two schools, as set out in paragraph G:

Its overall conclusion was then summarised in paragraph H:

Before considering the legal issues, I briefly set out the relevant legal background. The basic structure of the legislation found in the Education Act 1996 is that the LEA should first identify children with special educational needs. It must then identify the particular needs of the child. It must identify what special educational provision is required to meet those needs and finally it must ensure that such provision is available to the child. The purpose of the statement of special educational needs is to identify the needs, the provisions needed and how they are to be made available. Parts 2, 3 and 4 of the statement, respectively, deal with those matters. In this case, the dispute is over the final stage.

Certain statutory provisions are material to the question of how the provision is to be met. Section 9 of the Education Act 1996, is as follows:

It is common ground that the Tribunal effectively stands in the shoes of the local education authority when hearing an appeal.

Section 324 deals with the statement itself. Subsection 4, as far as is material, as follows:

I interpose that it is common ground that Schedule 27 is not applicable in this case. In subsection 4(a) it is expressly provided that:

Subsection 5 is as follows:

Finally, as I have indicated, by section 348, if special educational provision is made at a school which is not a maintained school, and the school is named in the statement, then the education authority must pay the whole of the fees payable.

It is plain that under section 9 there is potentially a tension between parental preference and cost. Resources may give justifiable reason for an LEA to be unwilling to accede to the parents' choice of school. The approach which the LEA, and also Tribunals, should adopt when considering this issue was the subject of certain observations of Sedley LJ in the case of Oxfordshire County Council v GB and Others [2001] EWCA Civ 1358. That was also a case where parental preference was for an independent school, which was plainly appropriate for the child's needs, but was more expensive than an alternative maintained school favoured by the local education authority. In paragraph 16 of this decision, the judge said this:

Sedley LJ then set out how the relevant costs are to be identified in a range of different situations.

There are now very extensive grounds of appeal in this case. There have been a number of amendments since the original grounds were drafted. Permission is needed to amend these grounds, see CPR 52.8. I am satisfied that the respondent is not prejudiced by the amendments and they do not require further evidence. Accordingly, I give them necessary leave. This is, however, without prejudice to a submission by Ms Scolding for the Council that I should not permit certain grounds to be advanced now, because they were not raised before the Tribunal. I return to consider that argument later.

A further preliminary issue arises from the fact the appellants did not lodge the appeal in time. The decision was dated 29th December 2003 and the appeal was issued on 28th January 2004. Accordingly, the 28-day period for lodging the appeal was not complied with. Initially, I was provided with no explanation for the delay at all. Indeed, the appellants appear to have been under the misapprehension that the appeal had been lodged in time, because it was within 28 days of the notification of the decision.

At the commencement of the hearing, I sought an explanation for the delay and was shortly thereafter provided with a statement by the solicitors for the appellant. I am told that the appellant only decided late in the day that he wanted to appeal and that there were delays resulting from the fact that he had to provide accounts to his solicitors in order for an application to be made for legal aid. His lawyers acted speedily once they had the authority and the relevant information.

In general it must be appreciated that the time limits in cases of this kind are there to be complied with and there must be a proper basis on which the court should exercise its discretion to extend time: see, for example, the observations of Balcombe LJ in Savill v Southend Health Authority [1995] WLR 1254. In this case, however, the necessary extension is for a very short period, there has been no prejudice to the respondents and I recognise that the early part of the year, at least, was a holiday period. In the circumstances, I think it right to extend time.

I turn then to the substantive grounds which originally numbered some ten or more. They are said, cumulatively at least, to demonstrate an erroneous approach in law in the exercise of discretion by the Tribunal. I will not set out each of the grounds in turn, but seek to summarise them by reference to a number of grounds given in the reamended notice of appeal. Not all of these were, in the event, argued before me. They can be considered under a number of specific heads.

First, it is said that the Tribunal failed, or failed properly, to take into account certain matters. These were the fact that D would have to change school at the end of the fifth year, whereas if he stayed at St James' he might not have to change school at all, since it had a sixth form (ground 1); and that there is evidence that the Christ school was less safe than St James', and that it was incumbent on the Tribunal to consider the question of safety and set out its reasons (grounds 2 and 2A). It is submitted that in determining the question of costs, the Tribunal failed to have regard to some costs which necessarily have been incurred in sending D to Christ school (ground 3). For example it is said that the costs of repairing certain blinds should have been recognised and also the cost of the second camera for D's use at home, to which the Tribunal made reference, ought to have been taken into account and may have altered the balance of advantage between the schools.

A second category of complaint relates to a matter which, it is said, the Tribunal ought not to have taken into consideration at all. It is submitted that the Tribunal was wrong to have regard to the nature of the curriculum (ground 5). Furthermore it is said that, insofar as it is entitled to do that, it ought to have had regard to the fact that there was evidence that design and technology could have been made available to D at St James's school (ground 6).

A more fundamental complaint concerns the test applied by the Tribunal in assessing whether Christ's was an appropriate school. It is said that the Tribunal merely considered whether the school was adequate, whereas it ought to have determined whether or not it was appropriate. The difference between the two concepts was recognised by Thorpe LJ in C v Buckinghamshire County Council and the Special Educational needs Tribunal [1999] ELR 179, when he said this at page 189:

Finally, the claimant relied on two related grounds, which were not pursued before the Tribunal. I hope I do them justice. First it is said that the Tribunal was wrong to identify in paragraph 4 that a maintained school had been the specified type of school, since St James's, an independent school, was also plainly an appropriate school. Alternatively, and I understand this to be a related point, it is submitted that the Tribunal failed to appreciate that provision could be made to overcome D's visual difficulties at the St James' School. Accordingly, it is said that even if the Tribunal was not obliged to specify St James's, because the LEA would then have had to pay full fees pursuant to section 348, it could have identified a type of school which would have included St James'. The consequence of that, said Mr Hyams for the appellant, would be that the LEA would have to pay for such extra assistance, over and above the fees for the basic education, necessary to deal with D's special educational needs.

I will deal with these matters in turn. First, the failure to take into account certain matters. As to the failure to have regard to the fact that D would have to change school after the fifth form, it seems to me impossible to say that the Tribunal was not wholly aware of that fact. It referred, in terms, to the fact that the reintroduction of the sixth form at Christ's school was actively under review. Mr Hyams relied on the decision of Kay J in Wilkin v Goldthorpe and Coventry City Council [1998] ELR 345. In that case the Tribunal dealt with the educational provision of a child in his last term of primary school. It made no recommendation at all as to his future secondary education. The appellant contended that the Tribunal ought to have done so, at least in general terms, to indicate what form of education should be required at secondary level. The court agreed.

That case, in my view, is very different to this. Here, there were well over two years to go before the question of sixth form education entered the picture. Furthermore, the Tribunal obviously were aware that there would be uncertainty as regards sixth form education. In addition, it was not a matter on which any great weight had been placed before the Tribunal. Similarly, as regards the safety of the school, the Tribunal, it seems to me, were clearly aware of the relevant matters. They heard evidence from Mr Davies, the independent educational psychologist, who expressed concerns about certain issues of safety. These were referred to in the decision. The Tribunal also recognised that, at that stage at least, building works were being undertaken at Christ's School. My Hyams says there was an Ofsted report which had noted the fact that there were safety concerns at the school resulting in the fact that entry to the two buildings was via a car park. Plainly the Tribunal does not have to refer to each and every piece of evidence. In any event, I am told by Ms Scolding that there was a later Ofsted report that expressed no such concerns.

The Tribunal also carefully considered the question of travel. They recognised the vulnerability that D might have travelling to school unaided and, as a consequence, they required he should have an escort, if he needed one, so as to travel with as little stress as possible. Furthermore, Ms Seymour, who is an expert in provision for the visually impaired, considered the trip to be feasible, with appropriate safeguards.

In my view, it is quite unrealistic to say that the Tribunal did not have issues of safety firmly in the forefront of their minds. Moreover, it is not as if there were no difficulties with the St James's school on this score. As I have indicated, it was recognised that there were some hazardous areas there.

The debate between the parties partly involved whether D should be placed in a situation where he would have to demonstrate his independence sooner rather than later. It was recognised that transferring him to Christ's School would require him to become more independent more quickly. The Tribunal plainly considered that it would not be inappropriate for D to take that step. Even if there were greater safety risks as Christ's it cannot, in my view, be said to have been irrational for the Tribunal to conclude that overall the Christ's School was not inappropriate for this reason.

It is then said that the Tribunal failed to have proper regard to the costs that would be involved in choosing the Christ's option. The appellant relied on the case of Wardle-Heron v London Borough of Newham and Special Educational Needs Tribunal [2002] EWHC 2806 (Admin), [2004] ELR 68. That was a case where the Tribunal placed considerable emphasis on the relative costs of the education provided at two schools, but did so on the basis of manifestly false information. I do not accept that that is the position here. Mr Hyams submitted that the Tribunal failed to have regard to the costs of repairing certain blinds at Christ's School, although it referred to the fact that this work would have to be done. However, it was not submitted before the Tribunal that this was a material cost to be taken into account, nor were any relevant costings provided to them. Moreover, it would involve maintenance work which, it seems to me, would be incurred in any event, quite independently of the special needs of D. At most, his presence might cause the repairs to be done more speedily than might otherwise be the case, but the additional cost would, in truth, be minimal.

Mr Hyams also said the Tribunal had identified the need, if D were to attend Christ's School, to acquire a second camera for use at home, but had not taken that cost into consideration. The premise here is that this is a cost which would be incurred at Christ's School but not at St James'. However, as Ms Scolding pointed out, that is not a fair reading of the decision. It seems clear from paragraph 8 of the decision that Ms Seymour considered that D's safety was affected by carrying expensive equipment whichever school is attended. Indeed, that is supported by the fact that she made an application to the Communication Aids Project for an additional camera which could be kept at home and that was still at the stage where D was at St James' and Christ's School had not been identified by the Tribunal at all.

Accordingly, it is plainly not a cost that is a consequence of the Tribunal's decision. Furthermore, it appears to be a cost which should be met by the Communication Aids Project, that is by central government, not by the LEA at all.

Finally, and in any event, it has not been identified as a required educational provision in the statement. It appears that the Tribunal considered it desirable to acquire the camera, as Ms Seymour did, but it did not make it obligatory. Accordingly, for all these reasons, I do not think that the Tribunal can be criticised on this ground.

Mr Hyams then submits that the Tribunal erred in giving weight to curriculum matters at all. In particular they were wrong to criticise the failure by St James's to provide design and technology teaching for D. The nature of the curriculum was, submitted Mr Hyams, quite irrelevant to D's needs. The content of the course was immaterial to the provision needed to deal with these visual problems. Accordingly, there was no need for the Tribunal to engage in any consideration of the curriculum at all.

I do not accept that the distinction between D's special educational needs and the curriculum is so clear cut. The Tribunal expressed the view that they considered it regrettable that D did not have the opportunity to develop more practical skills. They plainly considered that that, overall, would be advantageous to him and might enhance his general abilities. That was an observation which an experienced Tribunal, it seems to me, were fully entitled to make. In the context, there was no need to make the observation, which apparently emerged in the evidence, that deign and technology training could be provided at St James's.

In any event, there is nothing in the decision which suggests that this was seen as a matter of any material significance when considering whether it was now appropriate to approve Christ's School. The observations about the design and technology course were in the context of an assessment of the value of the education provided at St James'. In general it was plainly very positive, but there was this, as the Tribunal saw it, minor blemish in the education being provided. Had this featured as a significant matter, or as a justification for refusing to accept that St James' School was in principle an appropriate school, then there would be considerable force in the observation of the appellant that reference ought then to have been made to the fact that design and technology could be made available in the future. But the Tribunal were not suggesting that this failure rendered St James' an inappropriate school in any way. In my view, the Tribunal were justified in making the observation which they did in the context of the overall assessment of the schools.

I turn to the submission that the Tribunal has applied the wrong test. In paragraph H of its conclusion, the Tribunal states in terms that it considers that Christ's School is:

It does not simply describe it as adequate. However, Mr Hyams focused on the statement in paragraph E, set out above, where the Tribunal stated:

He submitted that that suggested that they had, in fact, applied a test of adequacy rather than appropriateness. I do not accept that. These observations were made in a context where the Tribunal was dealing with submissions from D's father that the Christ's School would not meet D's needs and would mean that D would be in a less sheltered environment and would have to be more self-sufficient. In my judgment, there was nothing inconsistent with that comment and the conclusion that the Christ's School would be appropriate.

I turn to the final two grounds which assert that the Tribunal erred in naming the Christ's School at all, even if it were considered by the Tribunal to be the most appropriate school. It is submitted the Tribunal ought simply to have said the relevant provision to meet the appropriate educational needs could be provided either at a maintained school or a mainstream independent school. The reason why it is said that this should have been done is that Mr Hyams submits that if an independent school had been named, albeit that is not the only appropriate school which could provide the specific education, then the cost of providing the provision directed at ameliorating D's visual difficulties would have to be borne by the LEA itself. By contrast, if a specific maintained school was named in the statement, then it is submitted that the LEA does not have to fund any educational expenditure at all unless the child is sent to that school. On this analysis it is said that had the Council adopted this course it would have had to meet the extra provision necessary to meet D's visual needs, such as expenditure on extra classroom support and his special camera, but not the basic cost of his education.

Mr Hyams accepts, as I understand it, that the Council would have to meet all the fees of St James's if that were the only school identified in the statement, by virtue of section 348 of the Act. He submits that this would not be so if the school were merely one of a number of schools capable of falling within the type of school specified by the Tribunal in the statement. This was not an argument ever advanced to the Tribunal. The battle lines were drawn with the appellant saying that St James' was the only appropriate school whilst the LEA was saying that Christ's was appropriate. Indeed, the complaint of the parents had been that the LEA had originally stated that a maintained school was appropriate, whereas they said there was no such appropriate school. In effect, the LEA was being challenged to identify one.

For this argument to succeed, the appellant must show both that this was a point which the Tribunal ought to have taken of its own motion, even although it was not raised before it, and also that had it been considered, it would have been bound to succeed. I accept Miss Scolding's contention that that submission cannot get past the first hurdle. It would be a very rare case where a point can be taken before the Court of Appeal which was not put before the Tribunal at all. The Court of Appeal held in BV Harrow that there may be such cases, particularly where the point is one of general public importance. But such situations will be rare, particularly where the child has been legally represented before the Tribunal, as in this case; see the observations of J Richards in T v The Special Educational Needs Tribunal and Wiltshire County Council [2002] EWHC 1474 (Admin) [2002] ELR 704.

I do not consider that this constitutes such an exceptional case. Nor am I satisfied that the matter can be properly dealt with without further evidence. Indeed, it would have been quite contrary to the appellant's case for him to have raised it before the Tribunal. The parents, by their representations, were effectively seeking to compel the Council to pay for D's school fees at St James'. They were contending that St James' was the only appropriate school. They were submitting that D could not have his special needs met at Christ's School. The argument now being advanced by Mr Hyams is that since the only requirement is to deal with D's visual impairment, it is plain that this could be catered for in a number of schools and that the additional costs of meeting these needs should be borne by the LEA, whichever mainstream school he attends. The Tribunal can hardly be criticised for failing of their own motion to raise and deal with this wholly distinct and inconsistent case.

Furthermore, for the argument to succeed, it is not enough for Mr Hyams to show that the Tribunal could have identified the relevant type of educational provision in the way he suggests. He has, it seems to me, to go as far as to show that the only reasonable decision for the Tribunal to make was to specify, as a type of appropriate education, education in independent schools, which would include St James'. This seems to me to be an impossible argument to sustain. The LEA is required to name the school under section 324 unless either the school is not appropriate, or it is appropriate but the LEA does not consider that it should be specified.

In Richardson v Solihull District Council [1998] EWCA Civ 226, Peter Gibson LJ gave as an example of the latter a case where the only school identified as appropriate may involve an unreasonable use of resources. It is, however, pertinent to note that he went on to say this:

He also pointed out that the code of practice itself contemplates that a particular school will be named. Schiemann LJ gave other examples of situations where it may not be necessary or appropriate to specify a particular school, such as where the child is about to move away from the district or where the LEA are submitting that there are a range of maintained schools and some negotiation with the parents is desirable before a school is finally chosen. There is also the statutory exception in section 234(5) to which I made reference.

What the Richardson case shows is that it will, in most cases, be desirable for a school to be specified. That is hardly surprising since otherwise scope for dispute remains. At some point, a school will have to be identified if the parents fail to make arrangements for the appropriate education. Indeed, it is a specific ground of appeal to a tribunal that no school has been specified in the statement; see section 326(1A)(c). Moreover, there are plainly advantages in a specific school being identified, at least when parents are not willing to make their own arrangements. For example, it means that the governing body cannot refuse to accept the child; see section 324(5).

The reasoning of the Court of Appeal in Richardson is, in my view, inconsistent with the thrust of this submission, which is that where the parents want the child to go to an independent school which would provide for the relevant needs, then that type of school should be named as a matter of course.

Finally, it is far from clear to me that D's position would be assisted or that the LEA's powers or duties would have changed, even if the Tribunal had specified in Part 4 a type of school which would have included St James's. That requires a fuller consideration of the statutory provisions and the relevant case law than I have given to this matter. Given my clear conclusions on the other aspects of the argument, it has not been necessary for me to explore this question more fully.

The Tribunal in this case was faced with the question of whether they should specify a particular school. The parents wanted their child to continue in the school where he had progressed well for two years. The LEA considered that there was an alternative school which was appropriate for D's needs and involved significantly lower expenditure. That is plainly a relevant and proper consideration for a hard-pressed education authority to take into account. The Tribunal considered the arguments carefully and concluded that the LEA's choice was appropriate and that any benefits to be derived from the parents' choice could not justify the additional expenditure. The scope of the argument was within a narrow compass. The Tribunal summarised its reasons succinctly and clearly. The parents' disappointment at the outcome is understandable, but this court cannot review the merits of the decision; it can only interfere if there is an error of law. In my judgment no such error has been identified here. Accordingly, the appeal fails.

MR HYAMS: I am grateful, my Lord. I do ask for permission to appeal. I do so on the basis, partly, that the question of the manner in which the court, on appeal, should approach an appeal where a point has not been raised below is something which should be considered in the light of the legislation here and the type of Tribunal whose decision was in issue here. In other words, it is a matter which is not as clearly determined by the case law, in my submission, as it should be, bearing in mind that the issue I sought to raise was one which is more than merely a matter of a point being raised, a particular argument. It is a matter, in my submission, which concerns a fundamental issue, as I put it in my supplementary skeleton argument and submissions.

I also say that the general question raised by that ground is one which ought to be considered by the Court of Appeal. Your Lordship said that you had not had enough time to deal with the statutory provisions in the case law and in my submission that is a matter which also indicates that the matter should be considered by the Court of Appeal.

MR JUSTICE ELIAS: No, because as far as that is concerned, plainly if it had been relevant to my decision I would have done it. I stated that it was not relevant. Those are the conclusions I have reached.

MR HYAMS: I accept that, my Lord. What I am saying is that it is a matter which relates to the question of the fundamental nature of the ground, that is all I am trying to say. I am not suggesting anything else.

MR JUSTICE ELIAS: I see, yes.

MS SCOLDING: My Lord, I will be brief. Permission to go to the Court of Appeal should be exercised sparingly. It should be exercised even more sparingly in the case of a second appeal.

MR JUSTICE ELIAS: I am sorry, when I think about it, I do not have power to give leave, do I? I do not have jurisdiction.

MR HYAMS: My Lord, I accept that. You are quite right, I apologise.

MR JUSTICE ELIAS: So that is that.

MR HYAMS: My Lord, as was said at the end of the hearing on Monday, I asked for detailed taxation and the appropriate legal aid order.

MR JUSTICE ELIAS: Ms Scolding, do you ask for your costs?

MS SCOLDING: Yes, I do ask for my costs.

MR HYAMS: No, on the usual legal aid basis.

MR JUSTICE ELIAS: Yes, very well.