A v Birmingham City Council

SIR RICHARD TUCKER: This is a statutory appeal under section 11 of the Tribunals and Inquiries Act 1992 against a decision of the Special Educational Needs and Disability Tribunal dated 24th July 2003. The matter before the tribunal was an appeal under section 326 of the Education Act 1996 against the contents of a statement of special educational needs maintained by the first respondent, the local education authority.

At the outset of the hearing before me counsel for the appellants, Mr Friel, applied for permission to amend the grounds of appeal. There was no objection from counsel for the first respondents, Mr Auburn, and I gave permission. At a later stage Mr Friel applied to re-amend his grounds. Mr Auburn did not strenuously oppose and I granted permission.

The case concerns a five year old girl, who is the daughter of the appellants. She was aged four years and nine months when the matter came before the tribunal. I have ordered that nothing must be published which would lead to her being identified. I will refer to her as "H".

H had and continues to have significant problems arising from autism. She has difficulties in communication, learning, attention and concentration, self-help and independence, and social interaction. She suffers from emotional and behavioural difficulties.

Naturally her parents are concerned that H should receive the best education which is appropriate for dealing with and overcoming her disabilities.

It was perhaps surprising that H started her education at nursery schools which might be described as mainstream, rather than specialist schools. However, it became apparent to her parents that she was not making progress. There was an appeal against the contents of the statement which had been made by the first respondent, which I shall describe as the first appeal. The appellants sought a change to "home + current school". However, they subsequently obtained advice, which, to my mind, was obvious and understandable, that mainstream schooling was inappropriate. The hearing of the appeal was adjourned so that the local education authority could consult and make recommendations. They put forward a number of specialist schools. Their preferred choice was a school called the Pines School.

When the hearing was resumed before the tribunal the position was that H had been placed by her parents in a private mainstream nursery, but that this was part of an ABA (applied behaviour analysis) programme which had been arranged for her. This is initially delivered in the home environment and then taken into school.

H had undoubtedly made good progress in the months leading up to the second hearing. The tribunal took note of that. However, they were unable to agree with the contention made on behalf of the appellants that this had been solely as a result of the use of an ABA programme, though they accepted that this had made a significant contribution.

In paragraph K of their decision the tribunal said that having considered the evidence they were satisfied that both the home based ABA programme, with a placement in a reception class at The Pines, could meet H's special educational needs, though they did not accept that an extended school day was necessary:

On the face of it, this would seem an eminently sensible and just solution. It was arrived at after a careful review of the evidence and of the issues involved. It was a decision of a tribunal with specialised experience and knowledge, and in my view a court should be slow to upset a decision of such a tribunal.

However, Mr Friel, counsel with great experience in this field, submits that the decision was flawed in a number of respects. He has to show that the reasoning of the tribunal was unlawful, and this is what he alleges by the reamendment in the first and third grounds of appeal. Alternatively, he must show an error in law, which he alleges in a particular respect in his second ground. Mr Friel has attempted to support his submissions by reliance on a great number of authorities to which he has drawn my attention. I hope I do no injustice to Mr Friel's industry if I do not refer to all of them.

The original complaint contained in the first ground of appeal relates to the reference by the tribunal in the paragraph which I have cited to the fact that "the research does not support this", i.e. that an extended school day is necessary. Mr Friel's contention is that the only research to which the tribunal can be taken to be referring was that of Mr A Willis, an independent educational psychologist, and that his evidence did not support the tribunal's conclusion. The submission is that the tribunal misunderstood that evidence and the appellants' case for an extended school day and thereby acted unreasonably, irrationally and unlawfully.

In my opinion this submission is based on a misconception. The research referred to in paragraph K, and the "other research" referred to in paragraph H, do not refer to research conducted only by Mr Willis, but to research in the round. Both sides, and the tribunal itself, presented research as to the effectiveness of what is called the Lovaas/ABA, and as to the amount of such a provision if offered. But the researches did not suggest that Lovaas/ABA was the only appropriate option. There was material contained in these researches to justify and support the tribunal's conclusion that an extended school day was not necessary and that 32 and a half hours support as part of H's integration into The Pines School would be sufficient.

I am certainly not persuaded that the tribunal misunderstood the evidence or that they acted unreasonably, irrationally or unlawfully.

The fundamental basis of the tribunal's decision was that The Pines School could meet H's needs. It is to be observed that Mr Friel's original complaint contained in ground 3, that the tribunal's finding that The Pines School was appropriate was unreasonable, was abandoned.

There is a second issue raised by the amendment to the first ground of appeal. Mr Friel submits that the tribunal disregarded evidence relating to the question of an extended school day and that they thereby acted irrationally or gave inadequate reasons for their decision. He submits that the absence of a finding on this issue is crucial. He relies on the decision of the Court of Appeal in Oxfordshire County Council v GB [2002] ELR 8 on the admissibility of further evidence as to what took place in statutory appeals. This arises because the advocates on both sides have produced statements of their recollection of what took place before the tribunal. Indeed, in the trial bundles are statements from Mr Conrathe on behalf of the appellants and Mr Galbraith on behalf of the respondents.

In my opinion, based on the judgment of Sedley LJ in Oxfordshire County Council, a court should pay no attention to such evidence insofar as it purports to advance or elaborate upon reasons for the tribunal's decision, and I decline to do so. However, Sedley LJ recognised that there might be a restricted ambit within which fresh evidence could be adduced, and I see nothing in his judgment which would preclude consideration of factors such as whether a particular piece of evidence was considered by the tribunal or as to what the issues before it were. In my experience, this frequently occurs in the Divisional Court on case stated for the court's opinion.

Therefore, I feel entitled to rely, if necessary, on passages contained in Mr Galbraith's statement, particularly those between paragraphs 13 and 23 relating to the tribunal's decision and the issue of Lovaas/ABA. In fact, I do not need to read Mr Galbraith's statement to conclude what the central issue before the tribunal was. This was, as I have already observed, whether The Pines School could meet H's needs. It is a school with special provision dealing with pupils with H's disabilities and it is convenient to her home.

To return to the issue raised in the grounds of appeal, I am not persuaded that the tribunal disregarded evidence relating to an extended school day - they make express reference to this matter in paragraph K. By implication they had it in mind when in paragraph G they stated:

Insofar as the tribunal are criticised for not setting out their reasons with sufficient particularity, I reject that criticism. It is apparent from the decision that the tribunal considered the matter with great care, that they weighed all the evidence, and that they expressed a clear finding on it which, as I have indicated, they were perfectly entitled to reach. It was a reasonable, sensible and rational decision reached by an experienced and specialist tribunal, and for which proper and adequate reasons were given.

The reasons that are set out are reasons which are intelligible and which deal with the substantial points which have been raised (see Megaw J in re Poyser v Mills Arbitration (1964) 2 QB 467 at 478).

Once the tribunal found, as they were entitled to do, that The Pines could meet H's needs, then they would only be justified in ordering a home-based ABA programme for a limited period and as a transitional arrangement. Therefore any issue as to the number of hours ABA is of little or no relevance.

I turn to consider the second ground of appeal. It is said that the tribunal erred in law in applying the approach of Richards J in T v The SENT & Wiltshire County Council [2002] ELR 704 as opposed to the approach of Scott Baker J (as he then was) in Singh v Bracknell Forest Borough Council [1999] ELR 51 to the contrary effect. The point at issue is the part played by section 9 of the Education Act 1986 in a case involving section 319 of the Act. Section 9 provides as follows:

I start by considering whether the tribunal complied with their obligation under section 9 to have regard to the wishes of H's parents as to her education. They clearly did so, as they expressly state in paragraph L of their decision. While the parents' wishes are important, they are not decisive. The statutory provisions make it clear that there are other considerations to be taken into account. In this case the tribunal properly did so.

I then ask whether this is a case where section 319 comes into play. The tribunal felt that it was not. They go on to state in the same paragraph that there is no power under section 319 to make arrangements for "education otherwise" if the local education authority has established that it can meet H's special educational needs in school. In other words, the tribunal felt that appropriate provision could be made in a school, i.e. The Pines. I repeat what I said earlier: the fundamental basis of the tribunal's decision was that The Pines School could meet H's needs.

Therefore I do not have to examine the question whether there is a conflict between the two decisions cited by Mr Friel - it simply does not arise in this case. I do not have to undertake the invidious task of deciding between the views of two judges experienced in this field, and of stating which of them I prefer. There is nothing in this ground of appeal and it accordingly fails.

That leaves the third ground of appeal raised by re-amendment during the hearing. It alleges that the tribunal's reasoning and order was unlawful in that it failed to specify lawfully a home-based/school-based provision.

Mr Friel described this as a specificity point. He submits that the tribunal's decision lacked precision and particularity. Mr Friel focused in particular on paragraph I of the decision. He criticised the tribunal for not having spelled out in precise terms how the provisions contained in this paragraph are to be decided and planned.

Here again Mr Friel cites authorities in support of his submission. First, the decision of Sullivan J in S v City & Council of Swansea [2000] ELR 315. At page 327 letter G the learned judge said this:

Mr Friel also calls attention to the judgment of Schiemann LJ in E v London Borough of Newham [2003] ELR 286, where at page 306 he refers to the question of the lawfulness of a statement because of its lack of specificity. At page 307 paragraph 64 the learned Lord Justice said this:

Applying these considerations to the decision under appeal, I ask whether the tribunal complied with their statutory duty, or whether Mr Friel is correct in submitting that the decision was unlawful for want of specificity. Mr Friel poses the questions: who will decide when H has been integrated into the school, and who will act as the ABA shadow, and what will he or she do? He submits that the tribunal seems to have delegated its duties to outside parties and to have done so in a vague manner.

However, paragraph I cannot be viewed in isolation. In other paragraphs of their decision the tribunal set out plainly what their order is. But they cannot foresee every contingency that may occur and cannot be expected to make precise provisions for every eventuality. As was recognised in E v Newham, there may have to be a degree of flexibility in the tribunal's approach, and in some cases a high degree may be appropriate.

In my opinion the present case is one of them. It does not seem to me, reading the decision as a whole, that it can be criticised for lack of particularity or specificity. The views of the tribunal are clearly expressed, and with goodwill on all sides there should be no difficulty about putting them into effect. I am not persuaded that ground 3 is made out.

Accordingly, the appeal will be dismissed.

SIR RICHARD TUCKER: Are there any applications on either side?

MR AUBURN: My Lord, I would ask for an order for our costs, not to be enforced without leave of the court. I understand the appellant is legally aided.

SIR RICHARD TUCKER: You appear in place of Mr Friel?

MS SPALDING: Yes, I do. I cannot resist the application of Mr Auburn. Mr Friel unfortunately cannot be here because he is attending a funeral this afternoon.

SIR RICHARD TUCKER: Your clients are in receipt of legal aid?

MS SPALDING: They are. The only application, as far as costs are concerned, is detailed assessment of the appellant's costs pursuant, as I understand it, my Lord, to paragraph 4 of the CLS Funding Order 2000.

SIR RICHARD TUCKER: We do not have a certificate. I cannot make any order in your favour until the court has a certificate. Provided it is filed with the court within 14 days you may have the order you seek.

MS SPALDING: I am grateful.

SIR RICHARD TUCKER: It should have been filed beforehand.

MS SPALDING: Yes. Thank you very much, my Lord.

The last matter which I have to raise with you, my Lord, is clearly I did not appear and did not argue this case and obviously my learned friend, Mr Friel, did. He asks if he may be permitted to submit written observations to you, if he feels it appropriate, on the issue of whether or not you should grant permission to appeal in this matter or not. He has been unable to formulate such arguments which he may or may not choose to put before you. I have discussed this matter with my learned friend, Mr Auburn, and he has no objection to that course of action being taken in the circumstances of this case.

SIR RICHARD TUCKER: Mr Auburn?

MR AUBURN: All I would say, my Lord, is we are keen to avoid further expenditure of costs as it is publicly funded on both sides. I would suggest, if you are amenable to the proposal, that we be permitted to make any observations as appropriate, I cannot imagine there will be much at all, seven days thereafter and you can decide on the papers if you are amenable to that route.

SIR RICHARD TUCKER: I am not very happy about that proposed arrangement, Miss Spalding. I expect counsel to be here with sufficient knowledge of the case and to support any application with argument. It does place the court under pressure when they have to reconsider a case all over again in order to meet your suggested grounds of appeal.

MS SPALDING: Yes, my Lord. May I just take some brief instructions from those instructing me.

My Lord, in the circumstances I am asked to seek permission to appeal before your Lordship orally instead of you waiting, and I fully understand those being the circumstances of the case.

My Lord, I am asking for permission to appeal primarily on the second and third grounds, as I understand it after having taken brief instructions, the second ground being the interrelationship between section 9 and section 319 and the conflicting authorities therein of Richards J and Scott Baker J. Your Lordship, we would seek permission to appeal on that point. We would submit that this is a point of general interest to those who are concerned in the field of education. The interrelationship --

SIR RICHARD TUCKER: It may be a matter of general interest, but I am not acting as an academic lecturer deciding points of general interest that do not arise before me. If the point does not arise I am not going to decide it.

MS SPALDING: Yes, my Lord, but we would submit that plainly, as Mr Friel submitted before you, the issue did and/or should and/or could have arisen within the tribunal hearing. I raise the point as to public interest. You could grant permission if (a) you believe there are reasonable prospects of success or (b) there is some other reason which is generally cited as being of particular interest or importance legally with which to seek permission to appeal. I would ask for permission on that point.

As to the specificity point, if I can put it like that, I submit that the tribunal has erred in this particular case in permitting too much flexibility, shall we say, to the original and primary decision maker, and that in those circumstances your Lordship should have struck down their decision as lacking specificity, to use Mr Friel's words, which you used today in your judgment, as this was a case, we would submit, where the tribunal went beyond the permissible flexibility which the legislation and the code of practice allows. This was a case where the court could and/or should have certainly made more provision as to the transitional period between H's transitional period into mainstream schooling. On that basis I ask for permission to appeal.

SIR RICHARD TUCKER: Thank you. What do you say, Mr Auburn?

MR AUBURN: On the second ground I think you clearly expressed that the point does not arise, and you are right on that. On the third ground, you are right for the reasons given. As to the transitional period, the point you made, that it was a limited period really for both parties to work it out sensibly, is the answer to it.

SIR RICHARD TUCKER: Do you wish to reply, Miss Spalding?

MS SPALDING: I only have one further observation to make as to the first argument I made. It is of course the case that the tribunal, whilst you have found that it does not arise in this case, primary tribunals do have to make, on a day-to-day basis, decisions as to the tension between section 9 and section 319. As I understand it, such home-based programmes are increasing in their popularity as the parental preference in mode of education and the tribunal is increasingly having to balance the difficult provisions of section 319 against section 9. In those circumstances we would ask for permission to appeal on that basis. I have no further observations to make.

SIR RICHARD TUCKER: Thank you for making so valiantly your submissions perhaps at rather short notice. I am sure you have covered all the points but I am not willing to grant you leave to appeal.