F & Anor v Kent County Council & Anor

MR JUSTICE LEVESON: This is an appeal brought under section 11 of the Tribunals and Inquiries Act 1992 by Mr and Mrs F against a decision of a Special Educational Needs and Disability Tribunal ("SENDisT") in relation to a determination issued on 27th July 2004 regarding the education of their son J, who was born on 25th August 1993 and is now 11 years of age.

The grounds of their appeal are to the effect that the SENDisT did not properly approach the expert evidence in the case, failed to determine substantive issues raised by the appeal, did not provide adequate reasons or properly consider the practical implications of its decision, and reached a decision that was unreasonable, irrational or otherwise flawed by misunderstanding and misdirection. Finally, it is said that the amendments ordered to part 3 of the Statement of Special Educational Needs are not sufficiently specific.

As is not unusual in these cases, SENDisT does not appear, but the relevant education authority, Kent County Council, seek to support both the approach of SENDisT and its conclusion.

For the purpose of this hearing, further evidence has been filed, which seeks not only to analyse what took place before the Tribunal but also to advance further material. At the same time efforts have been made to obtain the notes of evidence maintained by the chairman. Those notes came to hand yesterday and were placed before me a few moments before the case was called on. Miss Deborah Hay, who appears for the claimants, explained, as she introduced the notes to me prior to opening the case, that they were in two parts. The first seven pages are headed "(Preparation)". On page 8 an arrow is marked down the page with the notation "Hearing notes begin". Miss Hay accepts, as is clear from those parts of the note to which I have referred, the first seven pages represent a note taken by the chairman either of an analysis of the papers or of some preliminary matters discussed between her and the other members of the Tribunal prior to the commencement of the hearing. I have not read these notes, but it is sufficient if I indicate that Miss Hay considers that they contain some material which she contends is or may be important in the proper deployment of her appeal.

Having taken instructions, she is certainly anxious to use the material, notwithstanding Miss Fiona Scalding's view, as counsel for the county council, that they may not take the matter very much further.

It is abundantly clear that no consideration has been given as to the extent to which the court is entitled to look at what may be private notes, prepared by the chairman prior to commencement of the hearing; and indeed it may well be that the notes that have been copied and sent to the parties were copied without it being appreciated, by whomsoever undertook that exercise, that what I might describe as 'private notes' were included within the bundle. Suffice to say I am not prepared to proceed on the premise that the disclosure of these preliminary notes was intentional.

I know of no authority which deals with the status of such notes. Researches in the very short time which has elapsed only reveal that the High Court will not allow an appellant to draw comparison between the terms of a draft case stated and the final signed version: see Tesco Stores v Seabridge [1988] Crim LR 517, per Hutchinson J. It seems to me that an issue of principle may arise. It is not one which I am prepared to resolve without allowing SENDisT the opportunity to make representations upon the matter.

Miss Hay, having taken instructions, persists in her wish to refer to these preliminary notes, notwithstanding that she recognises that such will inevitably lead to an adjournment of this hearing. In the circumstances and having regard to the significance which this very important appeal has to Mr and Mrs F, and notwithstanding that considerable preparation has already been put into the case, I have acceded to that view. Fortunately the case can be heard on 20th December and thus remains in good time prior to commencement of the next school term.

I adjourn the hearing of this appeal to 20th December next. I direct that the terms of this judgment be dispatched to SENDisT, although I would hope that the parties would inform the Tribunal forthwith of what has transpired. I further direct that any representations or submissions as to whether the court is entitled, or, in the alternative, should, look at these preliminary notes should be served on the parties and the court by 4 pm on 13th December. It is of course a matter for SENDisT whether it wishes to appear to argue the matter. I repeat, I am not prepared to decide it without allowing them the opportunity of considering the position and making representations. How they approach the issue from this point is a matter for them.

To such extent as either of the parties wish to advance an argument contrary to any view expressed by SENDisT, those submissions should be available and served on the other party and SENDisT and the court no later than three days before the hearing.

I reserve the costs of today, and can only express my regret to Mr and Mrs F that this matter cannot now be resolved. Given that it is Miss Hay on their behalf who wishes to refer to these notes and has taken that view notwithstanding the inevitability of an adjournment, I hope that they can understand why it is important that matters such as this are properly considered.