M M B v Special Educational Needs & Disability Tribunal & Anor

MR JUSTICE COLLINS: This appeal against the decision of the Special Educational Needs and Disability Tribunal given on 27th October 2003 concerns a young girl called L, who is now 14 years old. She suffers from dyslexia and is the subject of a special educational needs statement. Unfortunately in addition to that, when she moved to her secondary school in September 2001 there is no question but that she had real problems settling in. However, those to a degree have been overcome. I say "to a degree" because there is something of a conflict between the assessment by the teachers, in particular by the special educational needs coordinator at the school which she now attends, and her and her mother's view of what the situation really is like for her. She herself is not as happy at the school as the reports would suggest. However, the real question is whether her special educational needs are properly being met at the school where she now is and where the local authority considered she should remain, and that was upheld by the Tribunal. Essentially, the appeal relates to that part of the statement and the mother's concern is that she should go now to a residential school (which is named) and which she wants to go to because her present mainstream school is not providing what ought to be provided in order to cater for her needs.

She is, it seems, particularly good at sport, especially football and rugger, and it may well be that this to an extent assists with her peers. But it is the academic side which is the problem. The concern is as I have said that the school is failing her in that regard. In the statement of special educational needs those needs are specified as follows. First it is noted that she is performing significantly below the level that would be predicted given her ability level and that that was due to several factors, including a specific learning difficulty in the area of literacy and numeracy skills (that is to say dyslexia), the influence of emotional factors and the effect those have had on the continuity of her learning. She is a strong visual learner but has significant difficulties at school because of weaknesses in working memory, auditory processing, visual and motor skills, concentration and basic academics. She has difficulties with literary skills, particularly with spelling. Performance is variable and is much affected by her anxiety level. She is very well motivated. All the reports that have been produced show that she is eager to learn and is no problem at all to her teachers, in the sense that she concentrates and she does the work that she is meant to do. Indeed, the homework is done exceedingly conscientiously, perhaps too much so. She spends far longer than she ought in trying to ensure that her homework measures up to the standard which is expected of it.

The Tribunal records the parent's case at paragraph 4 of its decision. It is I think convenient for me, because it indicates what the problems are perceived to be, to read paragraphs 4(a) and (b) of the decision:

There was evidence from the residential school, the effect of which was that it was believed that that school could well cope with L's educational needs. Dr Hales, the educational psychologist, who had not actually visited that school, believed that the intensive provision he had recommended if L was to stay at a mainstream school would not be needed at that school. Whilst that school was not a specialist school, it was approved by the council for registration for teaching dyslexic pupils. Indeed it had apparently been described as having an international reputation in making provision for children with specific learning difficulties. The point was made by Mr Rabinowicz, who was acting on behalf of L's mother at the hearing, that L was, as he put it, going nowhere at the mainstream school which she was attending and that she would benefit from the residential school.

The LEA's case was that the mainstream school was perfectly capable of providing L with the necessary teaching and skills to enable her educational needs to be met.

There were before the Tribunal reports from a number of educational psychologists. Dr Hales I have already mentioned, but they went back to December 2000 when she was still at primary school. That was her last year of primary school. It was then noted that her reading age was about a year/18 months or so below her actual age, and the gap in her numeric and spelling age was just over two years. She was then just over 11.

As I have said, she transferred to her secondary school in September 2001. A month later there was a report from a Mr Picton, an educational psychologist, which showed a disastrous widening of the gap between actual age and reading, spelling and numeric age. Her actual age by then was 12. Her reading age was between six and six and a half, her spelling age the same and her numeric age was about seven and a half. Mr Picton recognised that those figures might be anomalous and they might be affected by her having just started at the secondary school, and so the difficulties that she had had in settling down there may well have affected those results.

There was then a report from Hurst Lodge school, followed by one from Natalie Ross both, as I understand it, coming from the LEA's side. Each showed a somewhat similar picture to that painted by Mr Picton. They were taken some three months or so apart when she was aged 12. The reading age came out as just over seven, although the comprehension was rather better at just over nine. The Ross figures were eight for ordinary reading and less than that, some seven, for reading comprehension. For spelling the age was between six and a half and seven, and there was no figure given for the numeric age. Those figures tie in with Mr Picton's figures given at the beginning of that academic year.

Finally, there was a report from Dr Hales in February 2003 when L was 13 and four months. That showed that her reading age was towards eight, her spelling age towards seven and her numeric age towards eight, thus giving a gap in reading of 5.8 and in spelling and numeric 6.8 between her actual age and her achievement age. Again, those figures tie in with those produced by Mr Picton. They show, on the face of them, that L was not progressing as she should, and indeed was not achieving as she should, because the evidence before the Tribunal showed that L was regarded as of average ability and she should be able to achieve GCSEs, albeit not at a particularly high level. On the assessments made by the education psychologists she would not even achieve that.

Dr Hales in his lengthy and detailed report, having undertaken various tests, concluded:

The appeal is based upon the manner in which the Tribunal dealt with that evidence, and in effect concluded that it would not in the circumstances be persuaded by that evidence that L would continue to underachieve at the mainstream school or that she was not progressing, as the figures given appeared to suggest. Mr Bowen of course very properly accepts that the mere fact that educational psychologists produce reports and reach particular conclusions does not mean that the tribunal has to accept them, provided that it has valid reasons and proper evidence put before it to enable it to reject those conclusions.

Here the findings of the three psychologists before the Tribunal were consistent. The conclusion to be drawn from those findings was not consistent, inasmuch as Miss Ross, on behalf of the local education authority, stated that in her view the problem could be met at the mainstream school, albeit no doubt some further assistance would be required.

The Tribunal heard evidence from a Mrs Fortune. Mrs Fortune was the special educational needs coordinator at the mainstream school. Mr Bowen indicated that she was a teacher and she may well have taught L, but her involvement with her in teaching was not more than a few periods a week. But she was the coordinator and so she it was who obtained, for the purposes of the statement of special educational needs, the various reports upon L produced by her other teachers.

The Tribunal in paragraph 5(d) of their decision record her evidence, so far as material to their consideration of the case, and they say this:

That was a summary of the evidence. The Tribunal's conclusions in this regard are to be found in paragraph 6. What they say there, so far as material to this point, is this:

Mr Bowen has taken me to those reports because he submits that a careful analysis of the evidence given by Mrs Fortune and of the reports upon which the Tribunal relied does not support the contention that L was progressing and was doing well at the mainstream school, contrary to the views expressed by all three of the educational psychologists.

The reports commenced with a summary by Mrs Fortune of L's progress in year eight, and the date of that is given as December 2002. It is there said that she appeared to have really settled into the school, had continually gained in confidence and was motivated, hard-working and keen to succeed. She had established good friendships and was a reliable and cooperative member of tutorial. She took an active part in extracurricular sporting activities, especially girls' football and represented the school in the A team, one of the two best girl footballers in the school. Then she commented -- and this was much relied on it seems by the Tribunal -- that a recent progress report showed that she was given six commendations for her approach and attitude in class, and that only one other pupil in her tutorial received more commendations, and those are produced.

Of course a commendation for approach and attitude is one thing. There is no doubt that she does have an excellent approach and an excellent attitude to learning. But the point that is made by the psychologists and the point that her mother relies on is that, however much she may be trying, she is not succeeding. The reason she is not succeeding is because the school is not able to provide the necessary extra tuition, or the necessary tuition at all, to enable her so to succeed. It is said, and in my view rightly said, that those commendations do not begin to challenge in any sensible fashion the conclusions found as to her actual achievements; i.e. the gap between her actual age and the age of her reading and other numerical skills.

In June 2003 Mrs Fortune's assessment was similarly optimistic. L is said to have been fully integrated into the wider life of the school, a member of the school's football and rounders teams and had represented the school at rugby, and Mrs Fortune described what special tuition she had.

The reports from the teachers of the various subjects do not suggest that she is necessarily achieving as she ought to. They certainly all indicate what a pleasure it is to teach her and that her attitude is excellent. But she is said for example in maths to be below average for the group and okay in a very small group but lost in a big group. She is average in geography, average in art, but can become upset very quickly. She is below average in one of the history classes that she attended, and in English there are notable concerns with literacy skills, particularly spelling and punctuation. There are problems with exams, as another history teacher indicates. So although the picture is by no means that bad, it certainly does not do anything to suggest that the findings of the psychologists can be said to be erroneous.

The fact that she is good at games and an asset to the school in that regard is again not the point because it is her academic achievements that matter in this regard. The fact, as is recorded in the passage I read from the summary of the evidence from Mrs Fortune, that she was significantly more able to cope than the remaining four statemented pupils again is nothing to the point. That may be so. But what the Tribunal had to focus on was whether her special educational needs were being properly met.

The assertion that she performed well in large group situations is again not borne out by the reports, and is certainly not borne out by L's own letters that were put before the Tribunal and is not borne out by her mother's evidence.

The submission is made that in all those circumstances the material which the Tribunal relied on not to follow the psychologists' view that she was not making proper progress at the school simply is not capable of producing that result. If there is no evidence that is capable of producing a particular result, then, if that result is nonetheless produced, there is an error of law. In my judgment, the points made by Mr Bowen do show such an error in this case.

But it does not stop there because Mrs Ross in asserting that, despite her conclusions about the level of achievement that L has reached, nonetheless she should continue at the mainstream school included, as the Tribunal records, her view that there were many pupils in mainstream education who are less able than L. That, with respect, is clearly wholly irrelevant. It is important to remember in these cases that it is the individual's special educational needs that are in issue. The fact that others who may have different or greater needs are able to have them met at a particular mainstream school does not and cannot mean that someone whose needs are different or less cannot have those met. It all depends upon the precise nature of the needs and of the individual in question. It is quite impossible, in my view, to say that because others who are less able succeed therefore she must succeed. That is clearly to take account of an irrelevant consideration.

Those two grounds, accordingly, show that there has been an error of law in the way that this Tribunal has dealt with the appeal.

It is to be noted that neither the Tribunal (and that is no surprise) nor the local education authority has attended before me on this appeal. Of course that does not mean automatically that they must have accepted that there has been an error and that their case would be impossible to maintain. I do not draw any such conclusion from their decision not to attend. I do not know why they have decided not to attend. It may be that resources come into the question. It may be that they felt that they could simply stand on the decision of the Tribunal and it was not necessary to put forward any further argument. The fact is that they have not sought to put before me any argument to show that those put forward by Mr Bowen are wrong. Again that does not mean that I have automatically had to accept Mr Bowen's arguments. That is why I have gone through the material in the way that I have because it seems to me that on the material that was before the Tribunal Mr Bowen is clearly correct.

That means that this decision cannot stand and this appeal must be allowed. But it does not mean that I can then say that the Tribunal ought to direct that the residential school should be the placement that is appropriate. That may be the result in due course. But that is a matter for the Tribunal to decide on a proper consideration of whatever evidence will be put before it as a result of this remission. I suspect that there will be up-to-date material, indeed it is desirable, if possible, that there should be. It may be that in the light of the psychological evidence that has been given it will be difficult to accept that the mainstream school is appropriate, unless there has been a dramatic change since last autumn and nothing that has been put before me suggests that is the case. Mr Bowen absolutely rightly did not seek to submit that the residential school was the only answer that could rationally be given in the light of the evidence that was available before the Tribunal. Theirs is the expertise. Theirs is the duty to decide what is correct, and that will be decided upon whatever evidence is put before them. All that I have said is that their reasons for preferring the evidence of Mrs Fortune to that of the educational psychologists simply will not stand up to scrutiny, and further that the reason given and accepted by Mrs Ross for suggesting that the mainstream school was appropriate, it may be that there were many pupils who are less able than L who were working in a mainstream context, is simply beside the point.

In those circumstances, I shall allow this appeal and direct that the matter be reheard by a differently-constituted Tribunal as soon as possible.

MR BOWEN: Thank you very much indeed, my Lord.

MR JUSTICE COLLINS: Thank you.

MR JUSTICE COLLINS: You forgot to ask for costs.

MR BOWEN: It is entirely my fault.

MR JUSTICE COLLINS: Yes, you are entitled to your costs.

MR BOWEN: Rather oddly this is no longer a legal aid case, my Lord.

MR JUSTICE COLLINS: I cannot really give you -- because they are not here to deal with it. I think all I can do is to say to be subject --

MR BOWEN: Standard order, to be assessed in the normal way. Will you also give me an assessment in the normal way?

MR JUSTICE COLLINS: Yes, against whom are you asking for costs?

MR BOWEN: I am asking for costs against the local education authority, not the Tribunal.

MR JUSTICE COLLINS: Normally in these cases it is the LEA that we order costs against, is it not?

MR BOWEN: So it is just the second defendant.

MR JUSTICE COLLINS: Sorry to stay standing up.

MR BOWEN: I sympathise, my Lord, I am a fellow sufferer. Just the second defendant.

MR JUSTICE COLLINS: I think so. Yes, well certainly you can have an order for costs against the second defendant.

MR BOWEN: I am sorry to have to bring you back, my Lord.

MR JUSTICE COLLINS: Do not worry.