X & Anor v Caerphilly County Borough Council & Anor

The Special Educational Needs and Disability Tribunal (“the Tribunal”) is one of the tribunals from whose decisions an appeal lies to the High Court on a point of law under section 11(1) of the Tribunals and Inquiries Act 1992. This appeal from a decision of the Tribunal relates to a boy who is now aged 15. The appeal is brought by his parents, who I shall refer to as Mr and Mrs X to preserve their son’s anonymity, and I shall refer to their son as Y.

By the conclusion of the hearing of the appeal, it was apparent that I had to read and digest with some care the various reports which had been prepared on Y. I therefore reserved my judgment. Other commitments prevented me from handing down my judgment in the two weeks before the end of term, but I did not want my decision to be delayed for too long, especially if a further hearing before the Tribunal was necessary. I therefore caused the parties to be notified on 18 August of the order I was making. The judgment which I am now handing down contains the reasons for that order.

Y was slow to develop as a child. He started speaking late, and it eventually emerged that he had severe learning and language difficulties. Both his ability to express himself (even with relatively low-achieving members of his peer group) and his ability to understand language are limited. Although his limited ability to understand language is less pronounced than his limited ability to express himself linguistically, he still has considerable difficulty understanding language both generally and in the classroom. He lacks co-ordination with the result that he cannot write properly and needs help getting around. He appears awkward, gets distracted easily and has a poor sense of spatial awareness.

For his primary education, Y was in a class of children with moderate learning difficulties. On his transfer to secondary school when he was 11 years old, he went to a mainstream Welsh-speaking school. That was what his parents had wanted, although the advice which they had received from the local education authority, Caerphilly County Borough Council (“the LEA”), was that such a placement was not appropriate as Welsh was not Y’s first language. Y left that school in July 2003. He was then 14 years old. There had been concerns about his aggressive behaviour there. He had been temporarily excluded from the school, but it was agreed by then that the placement had broken down.

A statement of Y’s special educational needs had been issued by the LEA on 21 January 1997, and a request was made in January 2003 for those needs to be re-assessed. A new statement of his special educational needs was issued by the LEA on 4 June 2003 under section 324(1) of the Education Act 1996 (“the Act”). It proposed that from September 2003 Y should go to a local comprehensive school which had attached to it, rather than within it, a centre for children with special educational needs (“the Centre”). It was subsequently to say in its case statement submitted to the Tribunal on 13 October 2003 that the Centre

“….. is able to provide a differentiated curriculum from specialist, experienced teachers in a small class, high-staffed pupil ratio that [Y] currently requires. The specialist centre provides small classes with approximately 10 children in a class. Each class has at least one additional learning support assistant and further support could be considered if the Centre felt this was necessary.”

On 30 July 2003, Mr and Mrs X lodged an appeal against the statement of Y’s special educational needs with the Tribunal under section 326(1)(b) of the Act. They disagreed with

Pending the hearing of the appeal to the Tribunal, Mr and Mrs X agreed, albeit reluctantly, for Y to go to the school proposed by the LEA, and Y has been going there since last December. The hearing of the appeal to the Tribunal took place on 1 April 2004. By then the statement of Y’s special educational needs had been revised to reflect a number of new reports which had been prepared on him, and to take into account how he had been getting on at the school proposed by the LEA.

There were conflicting views about Y’s behaviour since going to that school. His parents’ evidence was that his behaviour had become aggressive and threatening at home since going there. He would swear and stomp and say that he was not going to school, although when the taxi came to get him he always got in and went off with his escort. According to Dr Brian Male, a consultant psychiatrist, Mr X had told him that Y would regularly threaten his parents with raised fists, and would threaten to break things. He would swear, spit and be generally unco-operative. However, a report from the Head of the Centre dated 9 January 2004, i.e. when Y had been there only for a short while, was extremely encouraging:

“When [Y] started with us in the Centre, he was non-communicative, withdrawn in class, wary of others, lacking in confidence, and only responded to direct questions with either one word answers or a shrug of the shoulders. He also needed constant direction with regards to where to go and what was happening next.

In only a very short space of time, [Y] has proved to be what can only be described as a real character within the Centre, and a pleasure to teach.

He now:

*Volunteers information

*Socialises voluntarily

*Answers questions readily

*Verbalises answers within a group without hesitation

*Is much more relaxed and is not afraid of other pupils reactions when attempting to do or make something

*Is managing his time and location

*Organises the younger pupils

*Constantly cracks jokes throughout the day

*Has joined the pupil duty team at breaks and lunchtimes

…… in short he is a happy, pleasant individual.”

The Tribunal issued its decision on 13 April 2004. It directed that two paragraphs be added to Part 2 of the statement (which identified Y’s special educational needs), though that was only because that part of the statement had done little more than summarise the various reports which had been prepared on Y. Apart from varying Part 2 of the statement in that modest way, the Tribunal dismissed the appeal.

The decision of the Tribunal is challenged on a number of grounds. Two of them relate to the Tribunal’s conclusion that Y’s needs could be met at the school proposed by the LEA, namely such needs as he had for (a) speech and language therapy and (b) occupational therapy. One of them relates to the Tribunal’s conclusion that Y’s need for support from social services was not an educational need. And the remaining grounds of appeal relate to the form of the revised statement of Y’s special educational needs and to the reasons of the Tribunal: the statement is said not to have been sufficiently specific for the Tribunal to have approved it, and the reasons which the Tribunal gave for its decision are said to be inadequate. I shall deal with the last two grounds of appeal in the course of dealing with the other three.

Y’s speech and language skills were assessed by Leah Blair, a speech and language therapist at Ystrad Mynach Hospital, on 29 September 2002. She took the view that Y’s speech and language difficulties were in line with his general learning disabilities. It was for that reason that she recommended that Y be discharged from the Speech and Language Therapy Service. However, Y was seen by another speech and language therapist, Nancy Arnaud, on 13 February 2003. She prepared a full report on Y. She agreed that “his difficulties with language are not in the form of a specific language disorder but are very much in keeping with his overall profile of severe learning difficulties”. But she did not regard that as making speech and language therapy unnecessary for him. She concluded that what Y needed was “direct” speech and language therapy provided by a suitably qualified and experienced speech and language therapist for one session a week of 30-40 minutes. The therapist should devise a language programme which should be delivered to Y by those working with him.

Ms Arnaud also considered the sort of school which Y should attend. She recognised that he had “major difficulties understanding the language of the classroom within a mainstream classroom”, and since Y was then at a mainstream Welsh-speaking school, she regarded that school as unsuitable for him. The sort of environment which she thought Y needed was “a specialist school environment [where] … his expressive language communication skills are more likely to be commensurate with his peers”.

Ms Arnaud’s report was considered by the LEA. Kate Davies, a speech and language therapist at Lanfrechfa Grange, was unable to make the clinical link between Ms Arnaud’s acceptance that Y’s language difficulties were part and parcel of his general learning difficulties and Ms Arnaud’s recommendation that Y needed direct speech and language therapy and a specific language programme. Another speech and language therapist at Ystrad Mynach Hospital saw him in March 2004. She gave practical suggestions for Y’s speech and language skills to be improved, but she did not comment one way or the other on whether direct therapy was called for. Finally, Dr Male (who saw Y on 26 November 2003) agreed with Ms Arnaud’s recommendation. Although speech and language therapy was not his area of expertise, he thought that Y needed “individual” therapy to make up for lost opportunities in the past. In his evidence to the Tribunal, Dr Male said that he would have expected someone with Y’s learning difficulties to have had a programme delivered within his school by a speech and language therapist.

The issue which the statement of Y’s special educational needs had to address was whether (a) Y needed direct speech and language therapy, i.e. therapy which took the form of individual sessions with a speech and language therapist, or whether (b) a language programme devised by a speech and language therapist but delivered within his school by those working with him would be sufficient. Part 2 of the statement, which was intended to identify Y’s learning difficulties, summarised the reports which had been prepared on Y, and concluded that he had particular problems with language skills. The critical part for present purposes was Part 3, which was intended to identify how Y’s particular learning difficulties were to be met. On the issue of speech and language therapy, it merely said in para. (j):

“The Speech and Language Therapist will ensure that school staff have knowledge of appropriate strategies to use with [Y].”

It said nothing about direct speech and language therapy, and it must be presumed to have regarded direct speech and language therapy as not necessary.

The Tribunal’s view on the topic is to be found in para. D of its conclusions:

“On the evidence presented we find no evidence that direct speech and language therapy at this point will assist [Y’s] language and communication skills given his levels of ability. Ms Arnaud’s reports were written at a time when [Y] was in a school where it was becoming increasingly clear that his needs were not being met. In particular we note that [Y] now has very high levels of support and that it will be possible for programmes devised and monitored by a Speech and Language Therapist to be delivered to him. The situation has moved on. Dr Male’s view was that direct therapy might help with his behavioural difficulties. Our view is that those issues are more to do with behaviour management strategies. Ms Shaffer suggested that just because it may not work this was not a reason to try. We were not persuaded by that point. We do not conclude it is an educational need.”

Thus, the Tribunal agreed with the LEA that Y did not need direct speech and language therapy.

It would, I think, be wrong to take the Tribunal’s words too literally. It could not be said that there was “no evidence” that direct speech and language therapy would not assist Y’s language and communication skills. The view that he needed such therapy had been expressed by Ms Shaffer, Ms Arnaud and Dr Male. What the Tribunal must be taken to have meant was that since it was accepted that Y’s speech and language difficulties were in line with his overall learning difficulties, his speech and language difficulties could not be improved by direct speech and language therapy.

This approach was based on the view advanced by Ms Blair and Ms Davies that direct speech and language therapy has no (or at best a limited) role to play if a patient’s speech and language difficulties are not the product of a specific speech and language disorder. The Tribunal gave no reasons for concluding that this view was correct, despite the facts that

(a)

Ms Shaffer, Ms Arnaud and Dr Male presumably believe it to be wrong,

(b)

no reasons were advanced by Ms Blair and Ms Davies for the correctness of their view, and

(c)

no reasons were advanced to the Tribunal (so far as I can tell) in support of their view.

In the absence of any reasoned justification for the approach which the Tribunal adopted, the Tribunal’s conclusion must be regarded as flawed in law.

Two other criticisms can legitimately be made of the Tribunal’s approach to this topic. First, the Tribunal appears to have discounted Ms Arnaud’s views because they were given when Y was at a school “where it was becoming increasingly clear that his needs were not being met”. That is true, and Ms Arnaud’s wish for Y to be at a school where his communication skills are more likely to be commensurate with those of his schoolmates has now been realised. But that does not invalidate what Ms Arnaud thought Y needed if he had then been in a more appropriate school.

Secondly, the Tribunal concluded that Y’s need for direct speech and language therapy was not an educational need. That was based on Dr Male’s view that direct speech and language therapy might help with Y’s behavioural difficulties. But what Dr Male had actually written in his report was that Y “needs a language programme in the curriculum to develop his skills to help reduce his behavioural problems as well as his education” (emphasis supplied). He was not saying that direct speech and language therapy was not an educational need as well. In this context, it is important to note the guidance given in the Code of Practice on Special Educational Needs issued by the Secretary of State in November 2001, to which the LEA was required by section 313(2) of the Act to have regard. Para. 8:49 provides:

“Case law has established that speech and language therapy can be regarded as either educational or non-educational provision, or both, depending upon the health or developmental history of each child. It could therefore appear in either Part 3 or Part 6 of the statement or in both. However, since communication is so fundamental in learning and progression, addressing speech and language impairment should normally be regarded as educational provision unless there are exceptional reasons for not doing so.”

It was not contended that if direct speech and language therapy was shown to have some educational benefit for Y, there were exceptional reasons for not treating the provision of such therapy as educational provision.

It follows that, in my judgment, the Tribunal erred in law in reaching the conclusion which it did. That does not mean that the Tribunal could not have come to the same conclusion if it had given sufficient reasons for adopting the views of Ms Blair and Ms Davies. Nor does it mean that Y’s educational needs could only be met by his placement in a specialist residential school. The Tribunal could have come to the conclusion that Y’s educational needs could be met by Y remaining at the Centre, with (a) weekly individual sessions with a speech and language therapist (away from the Centre if need be) and (b) a language programme devised by a speech and language therapist delivered within the Centre by those working there. It will be for the Tribunal on the re-hearing of the appeal to decide whether Y needs such direct speech and language therapy, and if so whether it could be provided by Y remaining at the Centre.

Y had not received any occupational therapy prior to starting at the Centre. Nevertheless, it is accepted on all sides that Y requires therapy to develop the occupational skills he will need if he is to get a job and the social skills he will need as he goes through life. What has been in issue is the precise nature of the therapy which Y should get. Patricia Rush, an independent occupational therapist, prepared a report on Y dated 27 August 2003, i.e. when his placement at the Welsh-speaking school had broken down, and some months before he began to attend the Centre. She said that Y required occupational therapy initially for two half-hour sessions a week but increasing thereafter. This therapy should be provided by a paediatric occupational therapist, and should address a number of foundation skills and specific areas in which therapy was required, including motor skills and community competence. The therapist should liase closely with Mr and Mrs X and Y’s teachers, so that the therapy could be complemented both at home and at school. She thought that Y needed to be educated at a school which could provide “a waking day curriculum”.

A different view was taken by Janet Kelly, an occupational therapist at Lanfrechfa Grange. Her report was dated 22 January 2004, i.e. just after Y had started at the Centre. She agreed that Y needed therapy “to develop his competence and independence across a range of self-care, leisure and productivity (work) related activities”. But she thought that that therapy should not be provided “as isolated deficits in themselves”, but “in the context of meaningful activities and tasks”. She thought that a traditional approach of the kind advocated by Ms Rush would “frustrate and bore” Y, and would expose him to the risk of failure should that approach not yield any benefit. She recognised that “extensive input” was required, “1-1 and perhaps group”, but she did not think that a change of school would be appropriate: Y “would have to learn an entire new set of relationships”. In addition, she recommended that Y should be referred to Promoting Independence, an initiative which worked with young people living locally with severe learning difficulties.

One other report should be mentioned. It is dated 21 October 2003, i.e. after the placement at the Welsh-speaking school had broken down, and before Y began at the Centre. In it, Clive Yeadon, an authority on social work and social policy, concluded that the local authority’s social services department had failed to assess how Y’s needs for learning and development could be met. In his opinion, “an extended curriculum [was] not only desirable but essential”, and “an holistic residential placement” was “cogent and consistent with a methodology to meet his needs”.

Part 2 of the statement of Y’s special educational needs identified his learning difficulties as including problems with social interaction, independence and self-help skills. It was the absence of those skills which, broadly speaking, the reports of the occupational therapists addressed. Part 3 of the statement then identified how those educational needs were to be met. Having referred to the need for Y to develop these skills, it recorded that an appropriate school placement should include the following elements:

“(c)

An environment, which fosters [Y’s] abilities and strengths and where emphasis is placed on independence and skills for life.

(d)

[Y] will receive access to additional adult support throughout the school day in order to facilitate his independent living and basic academic skills. This support will need to be regularly monitored and reviewed.

(e)

[Y] will benefit from participation in Caerphilly’s Promoting Independence Team. If [Y’s] parents are in agreement, the referral needs to come from school.

(k)

[Y] will benefit from appropriate life skills and social skills programmes.”

However, the particular therapy which the occupational therapists had in mind was regarded by the LEA as a non-educational need: such therapy as the LEA thought appropriate was included in Part 5 of the statement, namely that part of the statement which identified Y’s non-educational needs. That view was based on Ms Kelly’s opinion that occupational therapy was not an educational need for Y, since “his capacity to make use of education is not dependent” upon his access to occupational therapy. Occupational therapy would “be a significant benefit to his next steps in maximising his social functioning, but not his educational progress”. Moreover, Part 5 referred to Ms Kelly’s report at length, but did not mention that of Ms Rush, and the LEA must therefore be regarded as concluding that the type of therapy which Y needed was that recommended by Ms Kelly.

The Tribunal’s view on these topics is to be found in paras. E, F and G of its conclusions:

“E We do not find that the evidence establishes that the fact that [Y] has not had direct [occupational therapy] to date has impeded his ability to make use of education. We agree with [counsel for Mr and Mrs X] that the reports of Ms Rush and Ms Kelly broadly conclude that [Y] has the same difficulties. We prefer the approach of Ms Kelly, not least because it deals with [Y’s] difficulties in the context of his fast approaching adulthood. Her view that he needs intensive 1-1 input can be met in his current school. We place reliance on the LEA assurance that [Y] will be included in the Promoting Independence Initiative which will assist him to gain skills of competence and independence in many self-care activities. We particularly note that the scheme is multi agency and works in partnership [with] Gwent Health Occupational Trust, amongst other groups.

F [Y] and his family will undoubtedly need the support and/or input from Social Services. In our experience it is usual for children of [Y’s] age to be the subject of transition planning with increasing collaboration between education and Social Services. Social Services are starting to address [Y’s] home based issues especially his behaviour which at times is undoubtedly a cause for concern and is no doubt very distressing to his parents. However we find no evidence that this is directly linked to his education or affecting his ability to access his education.

G The issues for us are [Y’s] educational needs. We find no clear evidence that [Y] needs a 24 hour curriculum and we find that to place him at Bladon House School would be an inefficient use of the LEA’s resources.”

It is apparent that the Tribunal agreed with the LEA that the form of therapy which Y needs was that recommended by Ms Kelly. It is not suggested that it was not open to the Tribunal to form that view. But since the Tribunal did not suggest that the form of therapy recommended by Ms Kelly should not have been referred to in Part 5 of the statement, the Tribunal must be regarded as having treated that therapy as only meeting Y’s non-educational needs. I cannot go along with this view. Since the form of therapy recommended by Ms Kelly related to Y’s poor social interaction, independence and self-help skills, and since those skills were regarded by the LEA as learning skills for which educational provision had to be made (see Part 2 of the statement), the Tribunal should have held that the therapy which was needed to improve those skills should have been included in Part 3 of the statement, and not Part 5. Ms Kelly’s own reasons for thinking that the form of therapy which she was recommending could not be said to meet Y’s educational needs may well be compelling, but the fact remains that the form of therapy which she was recommending was to meet those of Y’s needs for which the LEA had accepted in Part 2 of the statement educational provision had to be made.

Be that as it may, the Tribunal found that the form of therapy recommended by Ms Kelly could be met at the Centre, though it added that Y would also be included in the Promoting Independence initiative, which would help Y to acquire skills in independence and self-help. I have not seen any evidence on which the Tribunal could have made that finding. Indeed, Mr Peter Oldham for the LEA did not suggest that there had been. The point he made was that the form of therapy recommended by Ms Kelly did not mean that he had to move from the Centre to get it. It could be provided to him outside the school. That may be so, but Part 3 of the statement had to identify where and how the form of therapy recommended by Ms Kelly could be provided, and it did not. The Tribunal’s error of law was in not picking that up, as well as concluding that the therapy only met Y’s non-educational needs. It will be for the Tribunal on the re-hearing of the appeal to decide whether the form of therapy recommended by Ms Kelly can be provided at the Centre, whether Y can receive that therapy by remaining at the Centre but having therapy sessions outside it, or whether it can only be effectively provided at a specialist residential school.

A core assessment of Y’s needs had not been prepared by the local authority’s social services department by the time Y started at the Centre. However, the Tribunal found in para. F of its conclusions that Y and his parents needed the support of, and input from, the social services department. The Tribunal said that the department had begun to work with the LEA to see how Y’s behaviour at home and its effect on his parents could be improved. But the Tribunal found that that collaboration did not amount to educational provision. Mr and Mrs X contend that in that respect the Tribunal erred in law.

I cannot go along with this contention. The argument would have been more compelling if I had held that the Tribunal had been right to conclude that the therapy recommended by Ms Kelly, which was intended to improve Y’s social interaction, independence and self-help skills, should be regarded as helping to meet Y’s non-educational needs. Since they should have been regarded as helping to meet his educational needs, much of the sting of this ground of appeal has been removed. I accept that there would be a link between (a) an improvement in Y’s social interaction, independence and self-help skills and (b) life at home for Y and his parents. But the collaboration between the LEA and the social services department is intended to complement the services which each of them separately provide. The fact that Y’s social needs, if met, would have an impact on the skills which his education is intended to give him does not mean that his social needs become his educational needs.

For these reasons, Mr and Mrs X’s appeal from the decision of the Tribunal must be allowed, and the decision of the Tribunal must be set aside. Their appeal against the statement of Y’s special educational needs must be re-heard by the Tribunal, but with a different constitution. It may be that the LEA will wish to revise the statement in the light of this judgment. If it does, and if Mr and Mrs X are still unhappy with it, the Tribunal will have to decide whether to approve the revised statement. The LEA must pay to Mr and Mrs X their costs of the appeal from the decision of the Tribunal, to be the subject of a detailed assessment if not agreed.