N's Parents v Somerset County Council

MR JUSTICE WALKER: The appellants appeal to this court under section 11 of the Tribunals and Inquiries Act 1992. They challenge the decision of the Special Educational Needs and Disability Tribunal, dated 18th November 2004, to dismiss their appeal against the contents of a Statement of Special Educational Needs in respect of their daughter.

I have made an order under section 39 of the Children and Young Persons Act 1933 to protect her anonymity. I shall refer to her as N, and in any report of this case the appellants should be referred to as N's parents.

N is an 11-year old school student who suffers from dyslexia and severe visual impairment. She is registered blind. N was first issued with a Statement of Special Educational Needs in May 1998, shortly before commencing her primary school. In September 2003 she transferred to the Danesfield Middle School, which I shall refer to as "Danesfield". Danesfield is a local mainstream maintained school.

The Statement of Special Educational Needs was amended in June 2004, so that Part 6 of the Statement named Danesfield as the school which would meet N's educational needs. The appellants particularly wanted their daughter to attend the West of England School in Exeter. This is an independent non-maintained special school for children with visual impairment. I shall refer to it as "WES".

The appellants disputed the amended Statement of Special Educational Needs and lodged an appeal with the Special Educational Needs and Disability Tribunal. In a decision, promulgated on 18th November 2004, the Special Educational Needs and Disability Tribunal dismissed the appellants' appeal.

The challenge made in this court can be divided into two parts: first, and this is by far the major part of the challenge, subparagraphs (i) to (v) of paragraph 2 of the Grounds of Appeal identify a series of matters which are said individually and cumulatively to vitiate the Tribunal's decision as a whole. Second, subparagraph (vi) of paragraph 2 of the Grounds of Appeal complains that the Tribunal failed to resolve a specific dispute expressly put to it for resolution. This dispute concerned access to support for information technology equipment. I have now been told that the parties have reached agreement on the specific dispute and accordingly I will not need to resolve it.

At the close of the appellants' oral submissions earlier today, I was satisfied that the major part of the challenge failed. In this judgment I give my reasons for coming to that conclusion. As will be seen, in my view the facts of this case do not bring it within the legal principles relied upon in order to mount the challenge. This conclusion is one which will come as a great disappointment to the appellants. I feel great sympathy for them and for their daughter. However, after hearing all that their counsel wished to say, and I believe all that reasonably could be said, I have reached the conclusion that the facts do not meet what their own counsel describes as "the relevant legal tests". That conclusion means that no useful purpose is served by prolonging the hearing. It also means that my judgment in this case is not to be regarded as having any wider value.

The appellants explained the background to the case in paragraphs 2 to 5 of their skeleton argument as follows:

The decision was promulgated, as I have said, on 18th November 2004. That was some ten days after the hearing. It recorded the bare bones of the appeal and then set out a preliminary section. I quote some parts of that preliminary section as follows:

After setting out this material the decision contained a section giving the Tribunal's conclusions. In the light of the detailed arguments put forward on behalf of the appellants, I need to set this out in full:

Those conclusions, in large part, resulted in the appeal being dismissed. It is important to note, however, that in certain respects the Tribunal ordered that the Statement of Special Educational Needs be amended, in particular, in paragraph 3, at Item 8 an amendment was directed. Prior to the Tribunal's decision, Item 8 of Part 3 described a structured, cumulative multi-sensory literacy programme as follows:

The appellants' appeal to the Tribunal arose under section 326 of the Education Act 1996, which, as amended, includes the following:

In appealing further to this court, under section 11 of the Tribunals and Inquiries Act 1992, it is for the appellants to show that the Tribunal erred in point of law. Dr Armstrong, on behalf of the appellants, referred me to two authorities. He started with R(L) v the London Borough of Waltham Forest and Another [2003] EWHC (Admin) 2907, [2004] ELR 161. At paragraph 13 of that case Beatson J noted that:

In paragraph 14 Beatson J summarised aspects of the requirements which were central to the case before him. Dr Armstrong relies on the first principle identified in paragraph 14. This is that:

In that regard Beatson J noted a comment of Grigson J in the case of H v Kent County Council [2000] ELR 660:

Dr Armstrong also relied on the third principle identified in paragraph 14. This was that "mere recitation of evidence is no substitute for giving reasons." In that regard Beatson J cited the decision of Gibbs J in LJ v Devon County Council [2001] EWHC (Admin) 958, [2001] All ER (D) 155.

The judgment in J v Devon County Council was the second authority to which I was taken by Dr Armstrong who drew my attention to the last sentence at paragraph 50. This is as follows:

The submission, on behalf of the appellants, was that there had been a failure to engage with the points put to the Tribunal with the result that the principles identified by Beatson J in the case of L were infringed. The appropriate order was not simply that one should have sent the case back to the Tribunal to give reasons, rather the failure to give reasons on matters, where reasons ought to have been given, should lead the court to hold that the Tribunal's decision could not stand and that the matter should go back for fresh consideration by a differently constituted Tribunal.

The first point taken under this ground concerned visual fatigue. This was dealt with very briefly in the Grounds of Appeal. The error in question was described simply as a :

The point was, however, elaborated in the appellant's skeleton argument at paragraphs 8 to 10:

Dr Armstrong began his oral submissions in this regard by noting that it was very tiring for N to work from printed materials. He drew my attention to the evidence of the educational authority of Somerset County Council, which is the first respondent to this appeal. In that evidence it was accepted that this visual fatigue presents as a big problem. That was the evidence before the Tribunal. It was supported by other passages which Dr Armstrong showed me. Before this court it is accepted in a witness statement of Mr Brelstaff, on behalf of the authority, that the appellants relied strongly on visual fatigue. Dr Armstrong described it as a key part of the appellant's case that if a child was tired by reading then one had to find other ways of acquiring information and a tactile code, for example, Braille was one such way. The Tribunal had made no reference to visual fatigue, said Dr Armstrong, so a big chunk of the submissions made by the appellants to the Tribunal had gone. Dr Armstrong accepted that visual fatigue was unfortunately just one of the difficulties facing N and was one element in the overall case that N's performance at school was deteriorating. He said, however, that it was one of the most significant and the most pressing.

When one looked at the conclusions at a to e (quoted earlier in this judgment) they did not mention tiredness of any kind. If a child was put in a situation where the child was only learning at the expense of being very tired, then, submitted Dr Armstrong, that is, first, an adverse reaction which the child is entitled not to have and, second, something that inhibits the child's education because the child is not learning as well as would otherwise be the case.

I drew Dr Armstrong's attention to what the Tribunal had said about deterioration. This included a general conclusion at paragraph c pointing to the difficulties of evaluation and the lack of any evidence to indicate a view as to what N's levels of progress should be given her difficulties. That paragraph in the conclusions added that the Tribunal was satisfied that progress was being made in respect of literacy at Danesfield School.

In this context one may note that what was sought by the appellants from the Tribunal was a sentence as follows:

Dr Armstrong explained to me that the expression "in real terms" was intended to mean by comparison with the generality of children - in other words, that the gap between N and her mainstream peers had increased. The difficulty, it seems to me, that faces Dr Armstrong's submission in this regard in relation to visual fatigue, is that the Tribunal's conclusion was that a sentence of the kind sought by the appellants was one which was not appropriate for a child with N's complex difficulties. If that is the conclusion then it is difficult to see why, in this particular context, the Tribunal needs to go into visual fatigue at all.

It was suggested by Dr Armstrong that the presence of visual fatigue showed that she was not doing as well as she could do, and second, that to the extent that she was doing as well as she could do at school, it would be at greater personal cost in that she is having to work harder to achieve that gain. There was a further point which was that there was a specific measure which would help in reducing the visual fatigue and that was the use of Braille. I will come on to the question of the use of Braille later in this judgment.

As to the question of visual fatigue, in the context of the appellants' claim that there should be an additional sentence in the terms I have quoted, it seems to me that it simply does not arise. The fact that she suffered from visual fatigue was accepted on both sides. The question whether by comparison with the generality of children the gap between N's levels of achievement and those other children's levels of achievement was increasing, and, if so, whether this is something appropriate to record in a Statement of Special Educational Needs, is quite separate. It seems to me that in this context the question of visual fatigue did not call for any specific mention by the Tribunal.

That brings me to the remainder of Ground 2(i). This complains of errors as follows:

Dr Armstrong submitted that the Tribunal's reasons indicated that the Tribunal had not been listening. The appellants had been arguing that N was not progressing to the extent that she should be. The evidence was that N was falling more and more behind her mainstream peers. In her own personal terms she may have been progressing a little but they were accelerating. That meant that in real terms she was slipping. Indeed it had been accepted by the authority that there was a widening gap, although there was an issue as to the extent of that gap.

Dr Armstrong took me to some specific passages in the evidence. One was that the authority had suggested, before the Tribunal, that steady progress on the part of N was shown by improvement from level 2A, at the end of Year 5 up to 3C in October 2004, which was just over a month into the start of Year 6. That particular evidence had been challenged before the Tribunal as not credible: first, it was not enough time to make such a jump; second, the assertion that at the end of Year 5 N was at level 2A was not borne out by the detailed marks that were before the Tribunal. Those marks were far lower than level 2A which made it even more incredible that N had improved to that extent over the holidays and in September.

In reaching a suggested level 3C the authority had had regard to subjective assessments by the Special Educational Needs Co-ordinator at Danesfield, who herself had an interest in showing that N had been achieving. Moreover, part had been drawn from work summaries which the appellants were able to explain to the Tribunal were not unaided work. Further, a reading test had been used which was appropriate for those up to the age of 10-years, six months, but in October 2004, the date of the test, N had reached the age of 11-years, one month. Thus the test that had been used was seven months too young.

Dr Armstrong noted the Tribunal's conclusion b that progress had been made in February 2004 and that the authority's evidence indicated an improvement in levels between May and October 2004. The teacher assessment indicated improving levels at the end of the current year. The Tribunal added this:

I pointed out that the Tribunal's conclusions on these aspects were not wholly unfavourable to the appellants, in particular, at conclusion e the Tribunal reached the view that the dyslexia programme for N should be strengthened so that N should work with the specialist teacher for at least one hour of the 3-hour weekly programme. The reply was that if the Tribunal had accepted the appellant's evidence, then far from simply directing an increase to an hour in the specialist dyslexia programme, the Tribunal would have accepted the main case put forward by the appellants that provision needed to be provided at a specialist school.

I return to the key finding made by the Tribunal on the question of deterioration. This addressed the main thrust of the argument as developed before the Tribunal by Dr Armstrong who was, as in this court, acting for the appellants. The whole foundation of the case being put before the Tribunal was one which depended on an assertion that the admitted increasing gap between N's level of achievement and the mainstream children's level of achievement was something to which significance should be attached for the purposes of the Special Educational Needs Statement. That way of approaching the matter was completely rejected by the Tribunal. It was not appropriate, said the Tribunal, for a child with N's complex difficulties, to proceed to make a finding in the Statement of Special Educational Needs of the kind that Dr Armstrong was urging. That being so, it seems to me that it simply was not necessary for the Tribunal to go into the minute level of detail which Dr Armstrong urges in this court.

It is fair to say that the Tribunal dismissed, very briefly, in the last sentence of conclusion b, the matters relied upon by the appellants to challenge the achievement levels described by the authority. They could have gone into it in much more detail. In the context, however, of a decision which was already running to ten pages, and a case in which they were faced with many and varied points of detail put to them on the part of the appellants, I do not consider that there was any need to resolve the particular points identified in the passage from paragraph 2(i) of the grounds that I have quoted above.

Overall the conclusion was that the Tribunal would expect N to make further progress and that to that end the statement should be strengthened. It was not incumbent on the Tribunal to go through the minutiae as to why they considered that a strengthening, so as to have a specialist teacher for at least 1 hour of the 3-hour weekly programme on dyslexia, would suffice, given that the central way in which the appellants put their case, seeking to attach particular significance to the extent of the widening gap between N and her peers, had been rejected.

This ground was as follows:

As to other aspects, the Tribunal had in paragraph 13 specifically recorded what was said by Dr Corley. It is, I believe, fair to say that the concentration of the appellants' case, put before the Tribunal orally, is reflected in paragraph 13. At any rate, that paragraph refers not merely to WES as offering immediate access to Braille tuition if and when it became advisable for N to learn Braille, it also referred to there being other advantages of the WES placement in Dr Corley's view.

In considering this point I return again to the way in which the Tribunal dealt with the general thrust of the case being put forward by the appellants. Their conclusion was one which, as regards Danesfield School, was broadly very positive. The reasons for it being broadly positive in that way appear from their conclusions. It was not necessary for the Tribunal, in that context, to deal with what I regard as essentially minor points of the kind complained of under this Ground of Appeal.

Evidence had been put before the Tribunal that N was distracted by class noise. One of the points relied on was that other children shouted when the teacher was out of the class. It was said by Dr Armstrong that the case put before the Tribunal was that WES would not have the bustle of a mainstream school. It was a different culture and a different climate. During the course of oral submissions, Mr Oldham for the Respondent objected that there was no evidence that this point was raised before the Tribunal. I need not go into that. It does not require any great knowledge of education to take judicial notice that when a teacher leaves the class there are quite likely to be children shouting.

Dr Armstrong said there is a smaller class at WES, merely six rather than 20 children in the class. The suggestion that the reasons given by the Tribunal need to stoop to the level of detail of comparing the noise that might be made by six children to the noise that might be made by 20 is one which I regard as unconvincing, to put it no higher.

This read as follows:

Dr Armstrong began by saying that the Tribunal had rejected Braille because of its disadvantages and had failed to recognise that it could be provided in a specialist setting in a non-obtrusive way. In that regard he cited paragraph o of the Tribunal's conclusions. I drew attention to paragraph m. This followed a detailed account at paragraphs f through to l of the evidence in submissions relevant to Braille or other tactile code.

The Tribunal's conclusion is simply that no case is made out for N to learn now a tactile code. That being so, the Tribunal's later comment in paragraph o, that learning Braille would carry disadvantages, is no more than an aside. It was said by Dr Armstrong that paragraph n had wrongly focused on the condition of cone dystrophy not being diagnosed as progressive. He accepted that it had not been diagnosed as progressive. However, Professor Tobin, who gave evidence for the appellants, had said that the need for Braille was entirely unrelated as to whether the condition was progressive or not.

Reading paragraph m, however, in the context of the Tribunal's reasons as a whole, the point made is that N is able to use print material effectively so long as this is prepared properly and that at present the focus of development of new skills needed to be in the area of ICT. Having reached that conclusion it was not incumbent on the Tribunal to rehearse points made by Professor Tobin and explain why they did not affect that conclusion. If the Tribunal were to conduct an exercise of this kind, the decision letter would no longer be a summary of reasons, which is all that the statute requires.

A further point was that the Tribunal accepted reasons given by Mr Carter, on behalf of the authority, for not providing Braille, but Mr Carter had accepted, under cross-examination, that he had no experience of the sort of learning process which Professor Tobin was advocating. Even if it is right that Mr Carter made such a concession, it does not seem to me that it is necessary for the Tribunal to record this. It is an example of a yet further point of detail that would weigh down the reasons quite unnecessarily.

Before I leave the question of Braille I should return to the issue of visual fatigue. It is said that visual fatigue was something that might be reduced, or avoided, by N having education which embraced both Braille and print. It may be that it is in that context that the Tribunal made the finding that it did in conclusion o. It pointed out that learning Grade One Braille will require specialist tuition and daily practice, and with other curriculum pressures and the need to improve literacy and learn full use of ICT the time required could not be justified by the suggested possible benefit.

Dr Armstrong complains that there is a failure to take account of evidence to the effect that in a specialist setting, as would apply at WES, the disadvantages of learning Braille are slight. There is a longer school day. Some of the practice could be taken over into mainstream school time. There was a further point, which he made orally, and that was a failure to mention that in order to meet N's literacy needs at Danesfield the decision had been taken not to provide to N the full curriculum in subjects such as science.

I can see no reason to infer from the way in which the Tribunal expressed itself in paragraph o that it had failed to take account of such of these points as had been before it. It stands to reason that learning Grade One Braille is going to require a considerable amount of new skills to be acquired and in that context the criticisms of paragraph o seem to me unfounded.

Conclusions v through to y, quoted above, in my view give quite sufficient detail as to why that evidence was rejected.

In opening Dr Armstrong said this case was about whether the errors identified by the appellants amounted to errors of law. The question was whether they were so serious as to cross the threshold into becoming errors of law. He added that if one has ten steps in an argument and the Tribunal failed to engage with eight of them, even if individually those matters did not amount to errors of law, cumulatively they did.

Accordingly I stand back and ask the questions identified by Gibbs J in the case of J v Devon County Council and Strowger:

I answer that unhesitatingly "Yes"'. The conclusion is that N's needs can be met at Danesfield. N is making progress and can be expected to make further progress both through the strengthening of the dyslexia programme and through the learning of full use of ICT. The case put against that, based on attaching significance to the degree to which the gap between N and her mainstream peers has widened, is rejected because of the problem inherent in it: comparing N with the generality of children is not appropriate for a child with her complex difficulties. On the key issues of Braille and of whether or not N is unhappy at school, the Tribunal's conclusions go into the matter in at least that degree of detail which is called for in a summary.

Other points raised do not, to my mind, have anything like the significance that requires them to be specifically mentioned in this summary.

Can the aggrieved party identify the basis of the decision? I unhesitatingly answer this "yes" for the same reasons as those arising on the first question.

Turning to the third question: "Have the Tribunal done more than merely recite the evidence?" again I unhesitatingly answer this question "Yes" and for the same reasons.

Accordingly my conclusion is that the major part of the appellants' challenge fails. I do not doubt the strength or sincerity of the appellants' belief that N would be better off at WES. As indicated earlier, I feel deep sympathy for N and for the appellants. I am heartened that the appellants have been able to reach agreement with the authority on the remaining aspects of the challenge. The vital task now in N's best interests is to work with Danesfield to ensure that N achieves her full potential. I shall hear counsel as to the terms of my order.

MR OLDHAM: My Lord, I am grateful. The ICT issue having been settled between the parties, I think my learned friend and I agree that the orders that your should make are an order that the appeal be dismissed, first of all, and secondly, and I think lastly, an order for costs in the following terms: that the appellants pay the first respondent's costs to be assessed, if not agreed.

MR JUSTICE WALKER: To be the subject of detailed assessment, if not agreed.

MR OLDHAM: I suppose so, my Lord. If we got that far, yes.

MR ARMSTRONG: My Lord, I cannot resist that application. On the behalf of the appellants we are happy that on the agreement reached it is not necessary to include the terms in the order.

MR JUSTICE WALKER: Very well. Before leaving this case I would like to express my thanks to both of you for the very helpful assistance provided in the written skeleton arguments and orally, and to those who have been part of your respective teams because it has been assembled in a way which has enabled me to reach a clear view and without any of the sort of difficulties that one sometimes encounters. Thank you both very much. Perhaps I had better keep the bundle of authorities with the papers.