Johnstone, R (on the application of) v SENDIST & Anor

MR JUSTICE NEWMAN: This is an appeal pursuant to section 11 of the Tribunal Inquiries Act 1991 from a decision of the Special Educational Needs and Disability Tribunal issued on 20th October 2004.

The appellant is the mother of a four year old boy with severe quadriplegic cerebral palsy. For convenience, I will refer to the boy, as necessary, as A. He was born on 20th October with severe quadriplegic cerebral palsy, which does give rise to severe physical difficulties. He has not been educated in the state system and at the material times leading up to the Tribunal hearing he had been placed by his mother at an independent school called Percy Hedley School. He had been there since he was two years old. There is no dispute that Percy Hedley is a centre of excellence for children with age difficulties and, indeed, with a range of difficulties from which other children unfortunately suffer. The placement was made by the mother because she opted for the private rather than the maintained sector. The Local Authority were not consulted about any move, but the position is that now the mother desires A to remain at Percy Hedley School, where it is said that he has made great progress, but that he should do so funded by the Local Authority because it is a matter which should be included within the Statement of his needs and that there should be a specific provision for his placement at Percy Hedley.

The position of the Local Authority, put in broad terms, is that it is their view that his needs can be appropriately and adequately met by the special schooling which is available at Parkside School. The provision of education for him at that school would be at a far lower cost than would involve the Local Authority were he placed at Percy Hedley. The figure which the Tribunal had before it, putting aside questions of expense by reason of transport, was something of the order of £21,000 per year.

The grounds of appeal to the Tribunal, so far as they are now relevant, namely to Part 4 of the Statement, can be conveniently referred to as showing the nature of the case which the Tribunal had to consider. The first part is page 8 of the bundle before the court, and referred to the fact that A was well-settled at the school, demonstrating steady progress and receiving support from teachers and therapists who work "as an integrated team with the pupils throughout the school day." The grounds of appeal go on to express the view that Parkside School, it is believed, could not properly meet A's needs. The school has said they have a range of children with very different kinds of needs who have severe learning problems. In addition, it is said that Parkside School did not have the availability of highly-qualified therapists working alongside teachers in the classroom to provide a challenging curriculum and therapy integrated into the daily routine at school. Belief was expressed that the only way in which this school could possibly begin to address his needs and enable him to reach his potential would be by buying-in very substantial outside therapy provision.

On the appeal, it is not suggested that the Tribunal failed to appreciate the nature of the essential dispute which had arisen between the Educational Authority and the mother. The submission is that the decision of the Tribunal nevertheless contains two errors of law: (1) that the Tribunal misunderstood the evidence of Mr Evans, that is the person who, by his position, could speak as to the detail of the provision of care and support and therapy which would be available at Percy Hedley, and misunderstood what he was saying would be provided at Percy Hedley, and (2) it is submitted that in concluding that A's educational needs could be met at Parkside, the Tribunal failed to give the reasons why it rejected the mother's case that the child required the intensity of support, education and therapy which he would receive were he at Percy Hedley.

For completeness, I should add that Mr Friel, counsel for the appellant, submits that whilst the two points I have identified are free-standing, they are also, he submits, related, for the error that is alleged in connection with Mr Evans' evidence, he has submitted, was so material that it must be regarded as having tainted the validity of the conclusion reached in respect of the choice of school.

In short, each submits that if the Tribunal concluded, as on one view it did, that Percy Hedley would over-provide for A's needs, then that conclusion is tainted and flawed because it can be seen to have, at least in part, been derived from what he alleges is a misunderstanding as to the degree of provision which Mr Evans was saying would be available at Percy Hedley. Whatever Mr Evans meant to say, or the Tribunal thought that he had said, as recorded in paragraph 9 of the decision, to which I shall return, it seems convenient to set out that this much seems clear and uncontentious: Percy Hedley follows the conductive education approach and delivers the three main therapies which A requires, namely speech and language, secondly, occupational, and thirdly, physiotherapy, by integrating the therapies into the pupils daily programmes and have having on hand therapists and assistance therapists who can, as the need arises in the course of each day, deliver the therapy.

Parkside does not follow the conductive educational approach. At one time it did do so, but it delivers the three main therapies through therapists who implement the recommended therapy in weekly sessions, as are required, and the day-to-day implementation of the programme so devised by the therapist or therapists is then in the hands of teaching assistants and not assistant therapists. It can be seen, therefore, that Percy Hedley delivers what could be described as an intensive integrated programme, whereas Parkside integrates the therapy programme with less involvement from therapists and assistant therapists and placing more reliance on teaching assistants.

With that in mind, I now need to go to paragraph 9 of the decision of the Tribunal because it is that paragraph which, it is said, contains the misunderstanding of Mr Evans' evidence.

The contents of paragraph 9 can be seen to be derived, at least in part, from the documentary record before the court at pages 284 and 285 of the bundle. In a letter dated 12th July 2004, addressed to Mrs McManus, the Manager for Student and Pupil Support in North Tyneside Local Education Authority, the Deputy Headteacher at the Percy Hedley School set out information which had been requested by the LEA. Against a number of bullet points, the following appears:

Then, at the bottom of page 284, the following bullet point appears:

The contention that there had been an error in the Tribunal's recital of the case in paragraph 9 has led to the notes of the Chairman taken during the hearing being obtained and, for the convenience of the court, they have now been transcribed and it is recorded, so far as Mr Evans' evidence is concerned, as follows. There is a heading, "Therapies", then "Mr Evans", then "OT, FT and OTs at school". Next there is a reference to page 284, the letter of 12th March, and the second bullet point to the end of the page. That is the reference to Physiotherapists, Occupational Therapists and Speech and Language Therapists. Then the bullet point at the end of the page was, as I have indicated, "Quantifying involvement from therapists is difficult." Then Mr Evans' evidence is recorded as:

That being, so far as this Court is concerned, the content and effect of the evidence which was before the Tribunal, we must now come back to paragraph 9 of the Determination. Mr Friel submits that, in essence, there are two errors. The first is that it was not the effect of the evidence that A should have access to the three main therapists for programmes in each of their areas, lasting for 1¹/₂ hours a day. Secondly, he submits, that it was not the effect of the evidence which was given that every day should have about 6 hours allocated for motor programmes, PE and hydrotherapy work.

As to the first point, namely the question as to access to three main therapists and for what period of time there should be such access, he says that the Tribunal was misunderstanding the content of the letter on 12th July 2004. The letter was referring to the three main therapists but not saying there should be access, but simply that they should be "involved" in the daily motor programmes. So far as the 1¹/₂ hours each day is concerned, it is fair to say that neither Mr Friel nor anybody else could shed any light upon, really, what "1¹/₂ hours per day (each therapy)" was meant to add to what had been said. It is not clear whether, in effect, it had been said there were going to be 4¹/₂ hours a day given over to access to the three main therapists, or what.

Mr Friel, in essence, submitted that what was really important was the substance of what was being stated would be available at Percy Hedley, namely that the three disciplines of therapy, to which I have referred, would be involved in the daily motor programmes. He, therefore, complains and submits it is highly material that the Tribunal appears to have understood that as being a requirement that A should have access to the three main therapists for programmes. It seems to me that, with respect to him, we are in an area of terminology rather than substance. One cannot read the expression "should have access to therapists" without reading for what purpose, namely for programmes. If what one is considering is programmes, then it seems to me one is considering what input there may be by way of programmes, which in itself would mean their involvement in the programmes and, therefore, their involvement in the daily motor programmes, as, indeed, on 284, the information provides. The point, in my judgment, is not capable of being made lucid because of the terminology which is used, but I am entirely satisfied that, insofar as the Tribunal was reflecting the thrust of what was at page 284 and thrust of case, namely that there should be involvement from therapists, the Tribunal had not so far departed from the thrust of the evidence as to so have misunderstood it and to be incapable thereafter of applying its judgment to the conflicting evidence.

As to the second matter, on the face of it, two readings appear. Either it was that every day there should be 6 hours allocated for motor programmes, PE and hydrotherapy, and, if that was so, that would mean that there was no time at all allocated to education, or what was being referred to was, as it would seem to me on page 285 the letter was getting at, namely that approximately 6 hours was allocated during the week for motor programmes, PE and pool, following a conductive education approach. This was not 6 hours each day, but that somehow during the course of each day, namely making up a week, the weekly allocation of approximately 6 hours was in some way going to be reflected. But again, it seems to me that, as with the first point, so with this point, the significance of all this is itself largely taken away by the very bullet point to which the Tribunal obviously were invited to pay regard, namely the statement that quantifying involvement from therapists is difficult to define as Percy Hedley School operates a fully integrated approach. Therapists can be called upon at any time of the day to help pupils and support programmes. So it is that, whether or not they were talking about direct involvement or input, plainly what Percy Hedley, in essence, were maintaining is that there were therapists on hand who could, in addition to any input that they gave through programmes, also be directly available and on hand to provide therapy as and when it was required and they were called upon to do so.

These estimates as to the number of hours that were being put forward by Percy Hedley were probably ones which, insofar as they were spoken to in evidence, were really not particularly clearly made out because it was not significant, so far as Percy Hedley School regime was concerned, to emphasis particular quantifications.

As it seems to me, it is most unlikely, in any event, that this Tribunal could possibly have understood that the effect of the evidence was that 6 hours was going to be allocated for those programmes, which would exclude any time in connection with education, when, again at page 285, the whole question of education was very much to the fore of the case for Percy Hedley School being appropriate. Nobody could have understood that it was to mean 6 hours each day to the exclusion of education.

In my judgment, none of these matters to which attention has been drawn, which are capable of giving rise to the sort of arguments which I have summarised, disclose an error, and if there is an error, an error which was in any way material to what the Tribunal had to decide.

It can also be said, for completeness, that even if the Tribunal had thought that somebody had suggested, Mr Evans or anybody else, that there were to be 6 hours allocated to the exclusion of education, it was well within the powers of the Tribunal, if they were impressed with what, essentially, Percy Hedley School had to offer, to come to a conclusion that Percy Hedley School was appropriate, but to qualify that part of their understanding of the evidence by ensuring that there was educational provision in the days which A would be attending at the school.

In essence, in my judgement, the quantity was not the issue as between the two schools. It was not the quantity of the provision but the quality of the provision in the terms which I have set out at the commencement of this judgment. It was the differences between the schools which were adequately and thoroughly set out in paragraphs 4 and 5 of the decision letter, and it is not necessary for me to read those (page XV and XVI of the record). Percy Hedley School was not rejected by this Tribunal because of either of the detailed pieces of evidence as to the quantity of hours which may be provided, as set out in paragraph 9. The decision was reached on much more fundamental differences which were canvased and which the Tribunal had to decide. So much is clear from, in particular, paragraph 14:

Then in paragraph 21:

In my judgment, it is clear beyond any doubt that the Tribunal was well aware of a degree of conflict, and for that one might say some confusion if it did really exist, as to who was saying how much was needed, but in essence the conclusion of the Tribunal is that A does need regular access to all 3 therapists.

The next question which it had to decide was whether that need could be provided at Parkside. In paragraph 21 it came to this conclusion:

The Tribunal, in accordance with good and proper practice and the requirement for specificity, therefore followed through and specified as precisely as possible and quantified the length of the sessions which were required for him. I am entirely satisfied that there is nothing in the point made in relation to paragraph 9 and the alleged errors and mistakes.

I turn, therefore, to the second ground, namely the reasons challenged. The court has been provided with numerous authorities in connection with the sufficiency or otherwise of reasons and the obligations upon tribunals and fact finding bodies to give reasons. It is not necessary to refer to them. The principles, so far as they are relevant to this case, in my judgment, are well enough known. Two of the most important are that this appellant was entitled to know the reason why her case had been rejected. Secondly, the sufficiency of the reasons is always to be considered in accordance with the particular subject matter which is in issue and which was decided upon, and by reference to the illumination that can be gained from the evidence and range of issues canvassed at the hearing and the submissions which have been advanced. As to that, one can see that the appellant's solicitor, Ms Lloyd, at paragraph 14 which I have already read, stated what the case was.

In paragraph 15, which I have not read, Ms Lloyd is recorded as also saying:

Mrs McManus, the lady to whom the letter at page 284 had been sent, namely the Manager for Student and Pupil Support at the LEA, said:

Then paragraph 16:

In my judgment, one has to remind oneself that this is a tribunal which is comprised of experts. It is an expert tribunal which is particularly charged with the responsibility of resolving conflicting evidence in these areas involving the special needs of children which, whilst not of a highly technical nature, is of a specialised nature, and the areas of dispute which can arise are ones which they are familiar with on almost a day-to-day basis. They have to listen to opinions from persons on each side as to what the needs of the child are.

So far as this case is concerned, it is obvious that the differences which arose, as I have identified them, have spoken for themselves. It was, in short, a difference between the regime at Percy Hedley and the regime which would be available at Parkside. But there were marked distinctions between the 2 regimes, as I have endeavoured to summarise, and they were, quite plainly, marked because of the difference between the intensity of the therapy which would be available in the integrated programmes which would be available at both places and the extent to which therapists would, either by their input or by their direct availability, be there to contribute, as opposed to the input and availability of therapists and assistant therapists on a more limited basis at Parkside, implemented through capable and experienced teaching assistants. This choice which the Tribunal had to make involved the Tribunal in making a judgment upon the conflicting material. It did not call for reasons in the sense that it had to give reasons for rejecting any particular facts. What it was doing was exercising its judgment on the material and saying what, in its judgment, was appropriate for the needs of this child.

I am not in any doubt that the appellant can inform herself very clearly from the decision why it is that the Tribunal concluded that Parkside could provide a suitable education for the child. The Tribunal concluded, in the exercise of its judgment as an expert on the evidence, and taking account of the differences, that the duly integrated provision of the 3 main therapies could be provided so as to meet A's needs by the therapist in the way it was indicated, as implemented by assistant teachers.

As to conductive education, the Tribunal stated as follows in paragraph 24:

In my judgment, as has been submitted by Mr Bowen on behalf of the Local Education Authority, this essential balancing exercise, which arises in all these cases where parental preference is under consideration, requires this Tribunal to carry out a balancing exercise and it is essentially for them to do it. In my judgment, it did so in this case without any error of law and in a way in which one can see clearly why it was that it came to its conclusion. It considered that the needs of the child could be met at Parkside. In my judgment, that disposes of this appeal, which must be dismissed.

Thank you both very much. There is only one other thing I wanted to and I was going to add, namely, what I said at the outset. I make this by way of an addendum to the judgment. I would draw attention to the fact that in this case the court has had provided to it a bundle which comprises no less than something like 500 pages of material which was before the Tribunal. So far as this appeal was concerned, it was essential for the court to have the Tribunal's findings, one or two of the documents to which the judgments referred, and really very little else. The extent to which this bundle has generated costs unnecessarily at public expense is regrettable, and it is also very much more onerous for the court in considering the papers, not only prior to coming into court, but during argument in court, to have to work through pages and pages which one simply has to turn over in order to select from amongst that morass the only relevant document. Mr Friel, with candour for which I commend him, accepted that there has been over-provision of documents in this case and he has also indicated, insofar as it is within his powers in the future, he will do what he can to ensure that the papers which are lodged with the court are essentially only the papers which are necessary for it to see, having regard to the issues raised in the appeal. That said, I hope it will not occur again. Thank you very much.

MR FRIEL: We are legally aided. I think Mr Bowen has an application for costs.

MR BOWEN: Can I have them, please, my Lord, subject to the usual order.

MR FRIEL: I cannot resist that. I simply ask for the normal assessment.

MR JUSTICE NEWMAN: The normal order, and you can have your assessment.

MR FRIEL: My Lord, I am very grateful.

MR JUSTICE NEWMAN: Thank you very much indeed.

MR BOWEN: I am grateful, my Lord.