B, R (on the application of) v Special Educational Needs and Disability Tribunal & Anor

MR JUSTICE WILSON: The appellant, a mother, appeals from the decision of the Special Educational Needs and Disability Tribunal (SENDIST) which is dated 26 July 2004 and which followed a hearing on 6 July 2004. The appeal, which has to be on a point of law, is brought under section 11 Tribunal and Inquiries Act 1991.

The first respondent is the Chair of the particular panel of the Tribunal which made the decision. As is normal, she and the Tribunal have chosen to take no part in the appeal. The second respondent is the London Borough of Hillingdon. The appellant in this court was the appellant before the Tribunal; and Hillingdon was the respondent before the Tribunal.

The issue surrounds the nature of the education appropriate to the special needs of the appellant's daughter, L, who was born on 2 October 1989. So she is now 15 years and 1 month old and was about 14 years and 9 months at the date of the hearing before the Tribunal. Since September 2001 L has been attending Vyners School, a mainstream comprehensive school which is run by Hillingdon and which has in excess of 1,000 pupils.

Unfortunately L suffers from dyslexia. When, in March 2003, Hillingdon wrote its final version of a Statement of Special Educational Needs referrable to L, it wrote in "Part 4: Placement":

The appellant appealed to the Tribunal against parts of that statement, in particular the entry in Part 4. Her contention was that Vyners School was not an appropriate placement for L and that the appropriate school to be entered in Part 4 was a private boarding school with fees of about £25,000 per annum, namely Stanbridge Earls school in Romsey.

The appellant's appeal was first heard by the Tribunal in July and October 2003. By its decision dated 27 October 2003 the Tribunal dismissed her appeal. Thereupon the appellant brought an appeal against that decision to this court analogous to her appeal today. On 24 February 2004 the appeal came before Collins J. On that occasion Mr Bowen, as now, represented the appellant. Hillingdon chose not to appear nor to be represented at the appeal. It seems to have taken the view that the decision spoke for itself. In the event Collins J quashed the Tribunal's decision dated 27 October 2003 and remitted the appellant's appeal to be heard by a different panel of the Tribunal.

On 6 July 2004 a different panel duly heard the appellant's appeal; and by its decision dated 26 July it reached the same conclusion as had the first Tribunal, namely that Vyners School was an appropriate school for the service of L's special needs.

The main point raised by Mr Bowen is that the second Tribunal (to which I will hereafter refer as "the Tribunal", in contradistinction to "the first Tribunal") fell into precisely the same error as that of the first Tribunal, namely that irrationally -- and thus unlawfully -- it failed to have regard to a mass of expert evidence, particularly to results of psychometric tests carried out upon L over the years, which established that she had not made any, or any sufficient, progress at Vyners School and thus that it could not be regarded as a school at which, in the crucial few remaining years of her secondary education, her special needs could appropriately be met.

Mr Bowen would now wish however to take what is in logic a preliminary point. It is not pleaded but I will assume that that deficit is remediable and will move to the thrust of it. Mr Bowen submits that the hearing before the Tribunal was vitiated by procedural unfairness towards the appellant. The unfairness is said to have arisen from the fact that among the documents before the Tribunal was the decision of the first Tribunal but that, as far as we know, the Tribunal did not have the benefit of access to the transcript of the judgment of Collins J dated 24 February 2004; it was certainly not among the documents submitted to the Tribunal by the parties. So, says Mr Bowen, the Tribunal was contaminated by access to an unlawful decision on the very point before it and had no access to the cleansing agent represented by the judgment of Collins J.

This point is hopeless.

The written material before the Tribunal broadly comprised the following:

Oral evidence was given to the Tribunal as follows:

Before I summarise the results of the psychometric tests which, according to Mr Bowen, the Tribunal failed to address, or rationally to address, it is helpful to set out the undisputed background.

Until July 2001 L attended a state primary school in Hillingdon. In the course of her education there she was placed at Stage 1 on the Register of Special Educational Needs.

L found the move to Vyners School, which took place in September 2001, extremely stressful. Although she is a charming, friendly, conscientious girl, who is good at sport (and who indeed hopes to become a sports therapist), she has a number of difficulties which contributed to the stress. In particular her IQ, which is slightly below average, and her dyslexia combine to give her low self-esteem and a deep sense of frustration; and, on top of that, she has a markedly high general level of anxiety. In the test which he conducted on 2 July 2004 Dr Hales assessed L's general tendency to be anxious as being on the 98th centile.

Although she was not to become the subject of a formal Statement of Special Educational Needs until 12 March 2003, Vyners School realised from the date of her arrival that L had special needs which demanded extra help. Mrs Fortune, with 25 years of experience of teaching pupils with special educational needs, was at that time, and has remained, the school's Special Educational Needs Coordinator. Mrs Fortune is also qualified as a Master of Sciences in Educational Psychology; and, although Mr Bowen has sought to suggest that such has been an unused and is therefore an irrelevant qualification, I should have thought that in practice Mrs Fortune uses it almost every day of her working life. Be that as it may, it fell to Mrs Fortune to provide from September 2001 onwards one-to-one help for L, in the course of one lesson a week, in relation to the problems precipitated by her dyslexia, namely reading, spelling, reading comprehension, remembering pronunciation, et cetera.

The formal statementing of L in March 2003, however, led to the release of additional resources for the provision of extra help to her. The level of help was then increased as follows:

At some stage prior to the hearing before the Tribunal the above level of support for L was yet further increased. As the Tribunal uncontroversially recorded:

On any view L has, particularly since March 2003, been provided at Vyners School with a very substantial -- some might say remarkable -- degree of extra support for her difficulties. Mr Bowen submits that any rational tribunal would realise that a school which considered that it was necessary to graft on to its normal educational service such an intensive level of extra support for a pupil was a school inappropriate for meeting that pupil's needs. I fear that that sweeping generalisation makes no appeal to me. Nevertheless I must now address the results of the seven sets of psychometric tests on L down the years which, according to Mr Bowen, drive only one rational conclusion, namely that Vyners School is inappropriate for L.

The first set of tests were those conducted by Dr Hicks and his colleague in December 2000. Thus they were conducted while L remained at primary school. Despite their antiquity, Mr Bowen places heavy reliance upon them. At this time L was aged 11 years and 2 months. The tests showed that she had a reading age of 9 years and 9 months and spelling and numeric ages of 9 years precisely.

The second set of tests were conducted by Mr Picton, a Chartered Educational Psychologist attached to the Dyslexia Institute. He conducted them in October 2001, ie weeks after L's arrival at Vyners School. At this time L was aged 12 years precisely. The tests show that she had reading and spelling ages of between 6 years precisely and 6 years and 6 months and a numeric age of 7 years and 4 months.

It is obvious that a comparison of the first and second sets of tests raises large question marks. How can, for example, a child's reading regress by almost four years in ten months? Mr Picton accepted that there were anomalies and suggested that it was his set of results which should be treated with caution. He suggested that the explanation for the discrepancy was likely to be found in emotional, rather than cognitive, factors; and he was probably there referring primarily to the fact that L had just moved to Vyners School and was finding it very difficult to settle there. Whether, however, one can totally ignore Mr Picton's results and totally rely on Dr Hicks' results, or whether, on the other hand, both sets of results merit a considerable degree of reservation, is an open question which, in my view correctly, the Tribunal saw no need to try to answer.

The third set of results were conducted in May 2002 by Hurst Lodge, a private school in Ascot approached by the appellant. At this time L was aged 12 years and 7 months. The tests showed that she had a reading age of 7 years and 1 month and a spelling age of 7 years precisely.

The fourth set of results were those conducted by Mrs Ross in July 2002 as part of Hillingdon's collection of material relevant to L's proposed statement. At this time L was aged 12 years and 9 months. The tests showed that she had a reading age of 8 years precisely, a reading comprehension age of 6 years and 9 months and a spelling age of 6 years and 6 months.

The fifth set of results were those conducted by Dr Hales in February 2003. At this time L was aged 13 years and 4 months. The tests showed that she had a reading age of 7 years and 8 months, a spelling age of 6 years and 8 months and a numeric age of 7 years and 8 months.

The sixth set of results were those conducted by Dr Hicks in March 2004. At this time L was aged 14 years and 5 months. The tests showed that she had a reading comprehension age of 8 years and 8 months, a spelling age of 8 years and 11 months and a numeric age of 10 years and 5 months.

The seventh set of results were those conducted by Dr Hales in July 2004. At this time L was aged 14 years and 9 months. The tests showed that she had a reading age of 9 years and 9 months, a reading comprehension age of 8 years precisely and a spelling age of 8 years and 6 months.

Dr Hales says, no doubt correctly, that the attainment age of an average 9-year-old is accepted to be the threshold of functional literacy; and that, on that basis, L, aged 14 years and 1 month at the time of the hearing, was, by reference to these tests, not even yet functionally literate in all areas. Despite all its efforts, submits Mr Bowen, Vyners School has demonstrably failed L; and a bespoke school for dyslexic children, such as Stanbridge Earls, is the only type of school which may reasonably be identified as appropriate to her needs.

To these arguments Mr Sharland, as he did in front of the Tribunal, makes various responses. He makes an obvious, but valid, preliminary point, namely that it is facile to make numerous comparisons with L's chronological age in the light of her IQ. Her IQ has been assessed on a number of occasions and, in the light of her dyslexia, it is unsurprising that her verbal scores well outstrip her non-verbal scores. But all her overall scores, namely 85 according to Dr Hicks in December 2000, 75 according to him in March 2004, and 92 according to Dr Hales in July 2004, are below the average of 100; and so it is most unlikely that L's attainment would ever match her chronological age.

Mr Sharland also heavily relied and relies upon the evidence given by Mrs Fortune to the Tribunal. In its decision the Tribunal described Mrs Fortune as a convincing witness, who knew L well; and, as I will show, it is clear that it set great store by her evidence. That, responds Mr Bowen, is precisely the same error as was perpetrated by the first Tribunal. Collins J in effect found that Mrs Fortune's evidence could not rationally displace the weight of all the experts' psychological evidence. I note in parenthesis that into that latter category Collins J may inadvertently have placed the evidence of Mrs Ross who, as Hillingdon's expert educational psychologist, had suggested to the first Tribunal, as indeed she did to the second, that Vyners was an appropriate school for L. At all events Mr Sharland counters with a submission which he says that he makes with profound respect to Collins J, namely that it is conceivable that he did not appreciate the degree of authority with which Mrs Fortune was able to speak about L's needs. Mr Sharland points to paragraph 13 of the judgment of Collins J in which he says:

What, then, was Mrs Fortune's evidence to the Tribunal? In its decision the Tribunal summarised it as follows:

Mrs Fortune's upbeat evidence about L's progress was indeed confirmed by glowing school reports referable to her dated March 2004, which were before the Tribunal. Her good attitude and conscientiousness have never been in question; it is the various references in those reports to her progress which were their significant features. The evidence was however that, unfortunately, a sporting injury had kept L out of school in effect ever since March 2004.

One of the most important features of Mrs Fortune's evidence was her reservation about the accuracy of standardised testing in the case of a girl such as L with, as Dr Hales discovered, a phenomenal level of anxiety. In the light of her close knowledge of her, it was Mrs Fortune's contention that L's progress would not be fully reflected in such tests. If the Tribunal had needed an echo of that point, it would have found it in L's history report for June 2003, namely:

Naturally it was in the passages of its decision in which it addressed the agreements and disagreements between Mrs Ross and Dr Hales that the Tribunal returned to the issue of the tests. It said:

In the light of the basis of this appeal it is worthwhile for me to spell out the evidence which led the psychologists to agree -- and the Tribunal to accept -- that, whichever results were chosen, the tests did, notwithstanding Mrs Fortune's assertion of their limited utility in L's case, indicate that she was by then making progress. Compare the following four sets of results:

Mr Bowen would protest that, from the various results, he could draw comparisons which are much less satisfactory; and his basic argument is that, whatever its antiquity and whatever the question marks against it in the light of Mr Picton's later tests, the Tribunal should have looked more closely at the very first set of results, namely those of Dr Hicks in December 2000, which purported to indicate that L was then functioning at the level of a 9 or 10-year-old, ie was functionally literate, and was functioning at a level only one or two years behind her chronological age. But it is for the Tribunal to choose which of the results are the more significant. That it was entitled to analyse the test results as it did is a matter upon which I have no doubt. And the significance of the date from which L's improvement most clearly began, namely from about February 2003, is patent: for it was in March 2003 that she was statemented and that the much more intensive level of special tuition began.

In the end the Tribunal was faced with a direct clash of expert evidence. On the one hand there was Dr Hales who (pace Collins J) is not an educational psychologist but who is nevertheless a consultant psychologist and, so it would appear, an expert of some distinction in this general area. He gave evidence that L needed 5 hours a week one-to-one support from a specialist teacher in circumstances where, as we know, Mrs Fortune was giving her in effect only 4 hours a week. His verdict was that L's level of progress at Vyners School was insufficient and that, notwithstanding her history of unsettlement when moving school, her needs would appropriately be met only by a move to a school such as Stanbridge Earls. On the other hand there were Mrs Ross, the educational psychologist, and, with her detailed knowledge of L, Mrs Fortune, the Special Needs Coordinator and, at least by qualification, also an educational psychologist. They both contended that L's recent progress was substantial; that it was probably understated by the results of the tests; that, notwithstanding her weakness in examination, she had already passed SATS Level 4 in maths and sciences; that she could reasonably expect to secure grades of C and D in a few GCSE examinations taken at the end of the two year course beginning in September 2004; and that her needs were being, and would continue to be, appropriately met at Vyners School.

In its conclusion the Tribunal said as follows:

For the reasons which I have laboriously set out, there was a mass of evidence to justify the Tribunal's conclusions. It is impossible for this court to strike its decision down as not properly reasoned, or not justified by the evidence before it, or irrational or otherwise unlawful. I dismiss the appeal.

Mr Sharland?

MR SHARLAND: My Lord, I would ask for our costs in this matter. I understand that the claimant is legally aided -- or the claimant is in receipt of Legal Services Commission funding is now the correct phrase. I understand that in those circumstances I would ask for what is known as the usual order.

MR JUSTICE WILSON: Mr Bowen?

MR BOWEN: It might be the usual order but it is slightly pointless. It is entirely within your discretion. There are no prospects, save for a football pools or a lottery win, of being able to enforce anything against this mother, and on that basis I would say that, even given the absolute nature of your Lordship's judgment, the right order is no order.

MR JUSTICE WILSON: Well, costs prima facie follow the result, do they not?

MR BOWEN: I cannot argue against that.

MR JUSTICE WILSON: I do not think there are any circumstances to displace that.

MR BOWEN: No, I do not think there are. In fact, section 22 of the Access to Justice Act says that your Lordship must positively ignore the fact that someone is publicly funded and apply the normal principles of costs.

However, the normal principles of costs are so general. Everything is within your discretion, and your Lordship could, if you wished, from a sense of compassion if nothing else -- given the extremely remote prospects of Hillingdon being able to enforce this judgment -- say that they should draw the line under it at this stage and say the costs should lie where they fall.

MR JUSTICE WILSON: What is the section which gives the publicly funded litigant special costs protection?

MR BOWEN: From memory I think it is section 18 in the 1988 Legal Aid Act. You have volume 2.

MR JUSTICE WILSON: Has that not moved on into the Access to Justice Act, Mr Bowen?

MR BOWEN: I need to be rescued by Mr Sharland on that, my Lord.

MR JUSTICE WILSON: Mr Sharland, where do we find special costs protection now?

MR SHARLAND: My Lord, I fear I may not be able to rescue my learned friend on this. In my experience, when someone is funded -- when I asked for "usual", that does not mean costs are awarded. The usual order, as I understand it, is costs awarded but the assessment of costs to be postponed.

MR JUSTICE WILSON: That is exactly what I am thinking of. But I would not have minded looking at the relevant section and referring to it in order to remind the costs judge that this is a case where there is special protection and that in his assessment, if it ever came to it, he would have to bear that in mind. But, if neither of you can point me to the section, I cannot do that.

MR BOWEN: It happens automatically, my Lord. As I understand it, even in theory, if your Lordship makes the usual order the costs order will hang over the mother's head without limitation until such time as Hillingdon decide that her economic position has improved to the extent that they might now get some money out of her.

Given the whole history of this, which now goes back an awfully long way and I will not seek to repeat it, and given the successful trip first time round -- I entirely appreciate the way in which your Lordship expressed your judgment, but I would boldly seek to suggest that the appeal was not quite as hopeless as might be thought by an objective reader of your Lordship's judgment, particularly on the reasoning point.

Just balancing everything up, the benefit and the likelihood of any benefit to the public body -- the local authority -- is so small that heaping further concern on an already distressed individual -- in many respects, not just distressed in relation to L -- sticks in the throat slightly, and it serves no purpose.

MR JUSTICE WILSON: In my more usual role in the Family Division there is a much more flexible discretion about costs. I have recently been criticised roundly in the Court of Appeal, when sitting in the Administrative Court and when failing allegedly to remind myself that prima facie costs should follow the event, and then turning round to see whether there are any circumstances which should displace that presumption. So I must do my duty. Costs prima facie follow the event. There are no relevant circumstances to displace that presumption, Mr Bowen.

MR BOWEN: Bear with me a moment. Just looking at the general factors which your Lordship should look at, Part 44: "Court's discretion and circumstances to be taken into account when exercising its discretion as to costs" are set out extensively in that rule. As far as I can see, just on a quick scan of it, it would seem to me that you can take into account the reasonableness of the parties in both bringing and defending the appeal.

So if your Lordship were at this stage -- even given the judgment that you have given, which for plain and obvious reasons is expressed in certain terms, given the decision to dismiss the appeal -- you can when looking at costs say, if you feel it is reasonable, that it was not an unreasonable appeal to bring.

Now, whether or not that then enables you to say the normal position is displaced would seem to me to be clearly a balanced question but one where -- unless you are prepared to condemn it as an entirely hopeless appeal, given the circumstances of the child, the grave worry, the existence of a previous judgment which seriously brought into question the ability of the Tribunal to prefer the expert evidence to Mrs Fortune -- unless you are prepared to condemn the whole exercise as being one which should never have been taken at all second time round, it seems to me that it would be perfectly proper for you then to look at Part 44 and say: I am going to displace the general presumption because I do not think, balancing everything up, that it would be fair to have the order hanging over this woman's head.

I cannot put it any higher than that.

MR JUSTICE WILSON: We discussed yesterday my interest in the fact that this was an appeal that did not require permission. I think that on a cursory look at this case, bearing in mind the judgment of Collins J and your arguments that this had superficial analogies, you would have got permission if permission had been necessary. But when I looked at the case in detail, as I did the day before yesterday, with your help yesterday and today, it became clear to me that the appeal had to fail. To that extent it became clear to me that the appeal should not have been brought.

MR BOWEN: Then that is true of every case that ever fails in this court. It is also a given that I am not criticising your Lordship at all. The judgment was extremely careful and your eye for detail during the hearing was far greater than anybody at the bar. But, nonetheless, one has in practice the experience that one case which is branded hopeless by one judge quite frequently is characterised in entirely a different way by another, and certainly in my field of practice one can come before some of your brother judges with a case which would quite literally be dismissed as irredeemably in five minutes, but find yourself coming away with a positive victory. To that extent at the bar we do say that your prospects of success will depend almost entirely on the management of the list.

MR JUSTICE WILSON: That is a terrible indictment of the system. We have a marvellous sculpture of a judge downstairs who does not have a face; and the whole point of his not having a face is that it should be irrelevant to justice what the face of the judge is.

MR BOWEN: It should be, and I will probably find myself now before the Bar Council for having said what I just said, but nonetheless that is a reality of practice. Now, we have to exercise a judgment, particularly in publicly funded cases, when we have to decide whether or not to back these cases. I have killed some cases which probably I should not have killed and vice versa.

Now here we have lost and we have lost fair and square, and we have had an exhaustively fair and proper hearing. But it does not necessarily follow from that that a local authority must have their costs. In many cases -- and I am not criticising Mr Sharland or indeed his solicitors -- local authorities have a practice of saying: well, given the circumstances that the claimant is in, given the fact that here, for instance, there is personal ill health -- the mother does not even have any degree of mobility. She has massive problems. She has a child who, despite the view of Mrs Fortune, according to the family, the child herself is nowhere near as happy and as content as Vyners would -- as accepted now by your Lordship and this court -- believe.

You can take all that into account. Many local authorities would not ask for an order for costs at all. It is a decision for them. Some might say we need to do it because of our audit requirements, and of course we will not enforce it. If it is therefore just a technical exercise, then what is the point of making the order? Perhaps you should ask Mr Sharland if it is realistic that this woman were, for instance, to win a premium bond of £25,000 tomorrow, would Hillingdon seriously seek to say we want £8,000 of it because those are our costs? If they are just going through the motions to satisfy the district auditor or whoever polices their budgets, then perhaps he could say so and your Lordship would perhaps feel a little more relaxed about saying no order.

MR JUSTICE WILSON: No, I do not think that is a proper question to put to Mr Sharland. Mr Bowen, you have done your best. I in fact share a personal concern for your client, notwithstanding what she may think about my judgment, and I would like to help her. But I am a judge and I must apply the law and I must exercise my discretion properly; and your attempts to persuade me that I can properly exercise my discretion by making no order for costs have failed.

MR BOWEN: At least I tried, my Lord.

MR JUSTICE WILSON: I think the wording is something like this. I will read it out so that counsel can comment on it. (1) is the appeal be dismissed. (2A) The appellant do pay the respondent's costs of and incidental to the appeal. (B) The quantification of the aforesaid liability of the appellant, as a publicly funded party, be adjourned generally with liberty to restore before a costs judge. Mr Sharland?

MR SHARLAND: My Lord, I am very happy with that wording.

MR JUSTICE WILSON: Any comment on the wording, Mr Bowen?

MR BOWEN: I cannot.

MR JUSTICE WILSON: Do you have that? Any other applications, Mr Bowen?

MR BOWEN: Could I have a detailed assessment?

MR JUSTICE WILSON: Of course you could. That is (C): in any event there be a detailed public funding assessment of the appellant's costs. Anything else, Mr Bowen?

MR BOWEN: I will not ask for permission to appeal, my Lord. I cannot anyway, because this is what they call a second appeal under Part 52.

MR JUSTICE WILSON: I see. Thank you for reminding me. You are right.

MR BOWEN: The only appeal point there should be the rather interesting one in relation to procedural unfairness and the fault of a lawyer.

MR JUSTICE WILSON: I will be interested to see whether you try and take that up, Mr Bowen. Any other application, Mr Sharland?

MR SHARLAND: No, my Lord. I am very grateful to you.

MR JUSTICE WILSON: Thank you.