W, R (on the application of) v Sendist

MR JUSTICE CALVERT SMITH: WJ is a 15-year old boy with profound hearing loss and delayed speech and language development. In March 1995 he received a cochlear implant which he continues to use. He is currently a pupil at T High School in Tamworth, a maintained mainstream secondary school with a unit for hearing-impaired pupils. The school is likely to close in 2007. When W's father, Mr J, who was a governor of T School, heard that the school was to close and that a move for W would be necessary, he and Mrs J (the appellants in this case) requested a statutory reassessment of his needs.

Following that reassessment the Statement of W's Needs was amended on 20 August 2004. Mr and Mrs J felt that the amended statement did not sufficiently deal with W's needs and, more particularly, with the provision necessary to meet those needs. Specifically, they did not want him to go to a local school - W High School - but to attend a non-maintained school in another part of the country, MH Grammar School. They therefore appealed to the SENDisT (Special Educational Needs and Disability Tribunal).

The appeal was heard on 21 January 2005. A number of agreed amendments were made to W's Statement. A number of further amendments were made to Part 2 of the statement following submissions made on either side. So far as Parts 3 and 4 are concerned, the panel upheld the original decision that W's needs could be adequately covered by attendance at W High School and so Parts 3 and 4 were dealt with on the basis of that underlying decision. Understandably, since it seems to have been common ground that MH Grammar School would certainly have been more than adequate for the needs of WJ, Mr and Mrs J were disappointed with the decision and now seek to have the matter remitted to the tribunal for further consideration because of alleged deficiencies in the procedure and decision making process of that tribunal, the appeal being brought under Section 11 of the Tribunals and Inquiries Act 1992.

Six grounds were put forward which can be summarised, and were for the purposes of Mr Friel's excellent skeleton argument, as four real grounds. First, that evidence was wrongly admitted and taken into account by the panel as to which Mr Friel submits that if that is the case there is no need to consider the merits of the evidence and an automatic hearing should follow. Or, if he is wrong about that, that the case should be remitted since the evidence on analysis may well have significantly altered the outcome of the appeal. Second, that the panel in its decision clearly failed properly to assess evidence which was before it, first as to the appropriate acoustic environment for W at W School or elsewhere and, secondly, as to the degree of progress which he had made hitherto, he having been hitherto educated in mainstream schools all his life. Third, that proper reasons were not given to explain why the tribunal had come to particular conclusions. Fourth, that in reaching their decision panel members had used their own knowledge without giving the parties a proper chance to challenge that knowledge as to its accuracy.

Before turning to the individual grounds and my decisions on them, perhaps it is worth noting that there seem to be some distorting features about a hearing of this kind and indeed about the process generally. In a process which is designed on all sides to achieve the best for a child with special educational needs, in which all parties are seeking to find the best solution, and in which an inquisitorial approach would seem to offer the best chance of such a solution, it is clear that the question of money may have the tendency of driving the parties, and therefore the proceedings, into a more adversarial mode. Second, that the appeal process to this court effectively passes a case from an expert tribunal to a non-expert tribunal and involves therefore not discussing to any great extent the merits of the case but rather the technicalities of the process which has led to the decision. It means that the child's best interests are easily forgotten. In addition, as the case developed it became clear that the underlying issue in the case before the tribunal perhaps can best be summarised in the tribunal's own decision at paragraph 19 (i):

The underlying argument therefore between the claimant and the defendant seems to have been whether W would be better educated in an exclusive oral environment, such as MH School, or a mixed oral and signed environment as at W. The paragraph just quoted and that underlying problem has not formed the subject of any of the argument in this court. So this court simply has to deal with the question of whether the procedure and the decision making process was fair or whether it was so unfair that it needs to be re-done.

By Section 324 of the Education Act 1996, following an assessment under Section 323 of A Child's Special Educational Needs and any representations made by the child's parents, it is necessary for the local education authority to determine the special educational provision which any learning difficulty he may have calls for. The key words are "the authority shall make and maintain a statement of his special educational needs". The statement of sub-section (2) (?) [(3)] (a) is -

The tribunal hearing such appeals is subject to rules, namely the Special Educational Needs Tribunal Regulations 2001. There are 52 such rules. Rules 17 to 28 deal with preparation for the hearing. Rules 29 to 40 deal with procedure at the hearing, and Rules 41 to 52 deal with various powers and other provisions for the tribunal. Rule 18 concerns the statements of case; 30 days is given from the -

The rule to which most attention has been devoted in this case is Rule 33, headed "Late Written Evidence". Paragraph 1 reads:

The tribunal sat on Friday 21 January 2005. The further evidence served by the respondents was sent out on 13 January, no doubt with the intention that it should arrive within five working days. But it appears that some of it was missed and had to be sent out the following day, the Friday. In any event, Mr and Mrs J did not receive it until Saturday, 15 January. It is common ground therefore that only four working days were available following receipt of the copy evidence. It is also clear that in considering the question of the late evdience the tribunal dealt with it under Regulation 33 (2), and not under Regulation 33 (3). That is clear from the first page of the decision document which states:

It is conceded before me that effectively the panel were proceeding under the wrong paragraph of Rule 33. Mr Friel submits that that should effectively be the end of the matter in that it is clear that a mistake has been made. The Regulations are clear beyond any doubt, and if they are not complied with that must render the proceedings effectively null, a re-hearing should follow and that I should not consider the effect, if any, on the fairness of the proceedings generally.

I disagree. I accept the submission of Mr Cornwell for the respondents that Rule 49 does not render the proceedings effectively null and void. This was undoubtedly an irregularity and it is therefore incumbent upon this court now to inquire into whether unfairness was caused and, if so, whether it is sufficient for me to order the remission of the case. In effect, of the material which formed the late evidence, Mr Friel, on behalf of the appellants, has singled out three areas of concern and a fourth which he asked the court to take into account. The first, and perhaps the most substantial, is the BSL assessment. This was an assessment of W which included video footage taken in June 2003 and November 2004 which gave rise, together with other observations, to the conclusion, in the writer's (?) that W is -

The appellants submit that this gave the council an unfair advantage. They had seen the videos and the appellants had not. It is not clear, but from the way in which the decision is phrased it does not appear that the panel had seen the videos either. It would undoubtedly have been better if this material had been available to the appellants and the tribunal before 15 January, and preferably some time before 15 January.

Further the appellants submit that this report formed an important part of the panel's decision. At (f) of the conclusions of the tribunal are these words:

The second matter is a letter from Mr Twomey which, in effect, simply accepts on behalf of Miss Redfern, who had supplied evidence broadly supportive of the appellant's case, of having strayed some way beyond her own remit which was purely health.

I see no force in the complaint about that document. The tribunal could perfectly well see what the effect of that letter was and it was, as Mr Cornwell suggested, almost trite; it hardly needed saying.

Third, a report concerning the acoustic environment at WS dated 14 December 2004: it is said by the appellants, supported by Mr Shaw who was their expert witness and is the headmaster of MH Grammar School, that they would have appreciated time to comment and follow up this report. Once again, there is some force in this complaint.

Finally, so far as the letter from Dr Chipa is concerned, the appellants would have wished to have followed up Dr Chipa's comments which were broadly supportive of the appellants' case. I should say that having considered all the matters and the evidence that was submitted, it is perfectly clear there was no question here of the respondents, as it were, trying to ambush the appellants by the submission of this evidence. It was clearly submitted in order to assist the tribunal to deal with the matter properly. One can imagine the complaints that would legitimately have been made by the appellants had Dr Chipa's letter not been served, albeit late, since it clearly, on its face, supported the appellants' case.

I have heard argument as to whether it can be said that there was actually an objection to the late admission of this evidence. The chairman's notes had been recovered. The recollections of the parties had been recorded in witness statements. Mr Friel directed my attention to the case of Renshaw v Sheffield City Council and Another [2002] EWCA Admin 528. I have therefore looked first at the notes and any, as it were, contemporaneous material and I have only used ex post facto witness statements where the notes are unclear, and, as it concluded on all sides, the notes are indeed very unclear.

I have come to the conclusion that what can be best described as having happened in an informal procedure such as SENDisT was certainly a complaint. There is no question but that Mr and Mrs J were sufficiently concerned to produce the envelopes showing when the material had been posted, that Mrs Gillespie who appeared before them said she had no authority to admit any matter and said that the tribunal was perfectly aware that they were not happy. Whether there was a formal legal objection that might be taken in a court of law, I doubt. Whether there was or was not, the tribunal had a duty to consider the matters carefully under the correct provision which is agreed - I have found - Rule 33 (3). So far as the BSL material is concerned, they did not consider it under that rule, and I am confident that had they done so, and there had been even a complaint, let alone a formal objection, they would have considered it better to ignore it.

However it is clear - and this is common to courts and tribunals of all kinds - that courts and tribunals are constantly having to balance primary evidence against secondary evidence, hearsay evidence, evidence which is late and for whatever reason is difficult to challenge because the witness is ill or beyond the seas or dead or kept out of the way. In that context I was referred to R v Camden London Borough Council ex p Cram and Others. At the end of a lengthy judgment, Mr Justice McCullough said:

Would the mistake, had it not been made, make any difference to the result? In this context I was referred to A v Kirklees Metropolitan Council and Dorsey [2001] EWCA Civ 582, in which Lord Justice Sedley said:

In the result, I have also been asked to consider what had happened before the hearing so far, in particular, as the BSL matter was concerned and the general inquiries as to W High School's suitability as an acoustic environment.

Mr Cornwell has submitted that on neither topic was there any significant exploration of issues by the appellant before the hearing. There was no evidence of any significant inquiry into them in the very short time, admittedly, between receipt of the new evidence and the hearing. Perhaps, more importantly, there is no evidence that there has been any since then and that the further statements provided by Mr J and Mr Shaw of these two topics have confined themselves to a claim that they would have preferred the opportunity to have had the matter earlier to research it. So the up-to-date position is that there is nothing before me to suggest that either the BSL findings that W had achieved proficiency at sign language to a high level or that the then acoustic environment at WS was not as set out in that report. Further, in that latter topic, since WS has now actually been altered so that it is now a much better acoustic environment for a hearing-impaired child than it was and does in fact conform to BB standards, it is submitted by Mr Cornwell that even if, as I have found, this evidence should not have been admitted, there is no point now in remitting the matter back to the panel for those reasons.

I find Mr Cornwell's submissions persuasive and, in spite of my finding, I would not grant relief on that ground, albeit I well understand the frustration and annoyance caused to the appellants by the late service and the feeling that somehow the council was taking an unfair advantage.

The next ground concerns the question of irrational decision, first, as to acoustic conditions at WS and, secondly, as to the degree of progress that W had made hitherto in the mainstream environment which underpin the panel's finding that he could remain in mainstream schooling because of that progress. In the decision at (h) the panel said this on acoustic environment:

As I have said in dealing with the first ground, W High School is now compliant with Building Bulletin 87 which dealt not just with new buildings but with existing buildings. A good deal of argument was addressed to me on both sides as to which Building Bulletin was relevant and whether the panel's remark about the building regulations quoted providing specifications for new buildings and therefore, by implication, not for existing ones was correct or indeed whether it was even relevant.

Mr Cornwell for the respondents wished to submit that in fact both Mr Friel and the panel itself were wrong in that the actual Building Bulletin relevant at the time of the hearing was one at which they did not even look. Mr Friel submitted that the correct interpretation of combination of BB 93 and BB 87 was that the guidance relating to existing buildings survived from BB 87.

After argument I indicated that since it was agreed on both sides that building bulletins are guidance and only guidance, and that what the panel was concerned with was not whether a building was compliant or non-compliant but whether the provision for W was adequate or not adequate, that, rather than the exact status of the evidence, was what we needed to focus upon. In the quotation from paragraph (h) it is clear that the panel was accepting that at the time W was not an ideal acoustic environment but suggesting that the various provisions in the statement would get around that non-ideal environment by the provision of other facilities and services. The acoustic environment, submitted Mr Cornwell, and I agree, was only one of the matters relevant to the panel's decision. It was taken into account, and I find that the panel did address the key question, ie, W's general adequate education provision in a reasonable way.

Of course, the second question, which was very much linked, was, "How has W done in an admittedly non-ideal environment hitherto? Has his progress been held back?" On the one hand, Mr Shaw and Mr Gale at the hearing and Mr and Mrs J submitted that there was evidence that it had been and, on the other, there was evidence that suggested that albeit it is conceivable that he may have made even better progress, his progress indeed had been adequate progress within the system.

I find that the tribunal was perfectly entitled to come to that conclusion. He was making adequate progress, in their judgment, and they had evidence on which to come to that conclusion which they spelt out. No doubt the smaller the class and the better the facilities the more likely it is that progress will be even better. That is no doubt true in all educational environments. On this topic I was referred by Mr Friel to results at GCSE level at MH Grammar School which clearly show that against the national average MH does very well. However these results were part of the bundle before the tribunal, albeit they did not specifically refer to those documents in their decision. There is nothing to suggest they did not read the bundle and were not aware of them. As Mr Cornwell has submitted, one has to aim off slightly for the fact that, first of all, MH pupils, by and large, will have had five years in a purely oral environment as opposed to the single year W would have were he to go there, that, in any event, MH is, in old-speak, a real grammar school in that it takes the top 30 per cent of intelligent children and of course, although this is less important, for obvious reasons most of its pupils or many of its pupils are taking GCSE older than children without hearing disability. I therefore reject that ground.

I come finally to the question of giving of reasons. I have already quoted from Rule 36 of the Regulations which requires the tribunal to create a document which has, or has annexed to it, a statement of the reasons in summary form. A number of cases were cited in which this requirement has been discussed. I list them: R v Mental Health Review Tribunal ex p Clatworthy [1985] 3All ER 699; H v Kent County Council [2000] ELR 660; and cases specific to this tribunal, S v City Council of Swansea and Comfrey [2000] PLR 113; S v SENT [1995] 1 WLR 1627; and (it seems to be agreed) the most recent case which summarises the considerations relevant to reasons given by this tribunal, L v London Borough of Waltham Forest and Another [2003] EWHC 2907 (Admin). In this case Mr Justice Beatson, who had been referred to the cases to which I have referred together with a number of others, said at paragraph 14 of his judgment:

Secondly, a specialist tribunal such as the SENDisT can use its expertise in deciding issues, but if it rejects expert evidence before it it should state so specifically. In certain circumstances it may be required to say why it rejects it (see H v Kent County Council, paragraph 50, Mr Justice Grigson).

Thirdly, mere recitation of evidence is no substitute for giving reasons (in that context see L v Devon County Council [2001] EWHC Admin 958, judgment of Mr Justice Gibbs, paragraph 50).

Fourthly, and linked to the second point, "where the specialist tribunal uses its expertise to decide an issue it should give the parties an opportunity to comment on it and to challenge it. That is established in the Mental Health Review Tribunal context by R v Mental Health Review Tribunal ex p Clatworthy and in the context of this tribunal in M v Worcestershire County Council and Evans."

In his submissions to me Mr Cornwell referred me to a quotation from the Swansea case in which Mr Justice Sullivan at page 239B, quoting Mr Justice Forbes in Seddon Properties v Secretary of State for the Environment and Macclesfield Borough Council [1978] 42 P & CR 26, said:

I have attempted to have the clear guidance of those cases and the strictures of Mr Justice Beatson well in mind when deciding the points made by Mr Friel on the decision making process in this case. In general, Mr Friel submits, first, that the tribunal did not say with sufficient particularity why the acoustic environment, which admittedly did not meet the requirements in his submission or in the judgment of the panel itself was not an ideal acoustic environment, was nevertheless an appropriate acoustic provision. There is no reference in the decision to the guidance which supported Mr Shaw's and Mr Gale's professional opinion or of the evidence of the visit of Mr and Mrs J to the school itself. Secondly, and on the same topic, that there is no finding which specifies the exact way in which the panel found that the future development of W School would provide a suitable acoustic environment.

In answer to those submissions, Mr Cornwell submits that - taken together and read in a commonsense way - it is perfectly clear what the panel's decision making process was and that it is sufficiently clear for the reader and in particular the appellants to understand what lay behind it. He refers to the part of paragraph (h) which I have already quoted ( paragraph 26 supra) and to the combination of that finding and the amendments to the statement which contained the reasonable steps it considered should be taken, the provision of a communication support worker for 32 and-a-half hours a week and other services which I will not detail. In effect, the reasoning is clear. W School's acoustic conditions were not ideal. W had previously made adequate progress in non-optimal acoustic conditions and that specified reasonable steps, which are set out in the statement, should be taken to ensure that he had proper access to the curriculum.

I find that Mr Cornwell's submissions are persuasive. There is sufficient here for a reader to understand why it is the decision has been made and indeed the conclusions are detailed.

Finally, it is suggested that in giving one particular reason the panel used its own expertise without giving the parties a chance to comment either in addressing the panel or through the mouth of an expert witness. The sentences to which objection is taken come from paragraph (f) of the conclusions:

There is nothing in the notes to indicate one way or the other whether this comment was made during the course of the hearing or not. The clear recollection of the two witnesses whose statements have been put before me on behalf of the respondents was that it was. Mr Cornwell rightly points out that W's progress - and, in particular, his progress in English - was one of the key issues debated both in advance of the hearing through case statements, and no doubt at it, and therefore it would have been highly surprising had the panel chairperson or someone else not interposed a comment such as that during an informal hearing of this kind.

Further Mr Friel says that Mr Shaw could have shown that actually that is not a correct comment to have made. It is not based on appropriate evidence, at least not evidence that is accepted throughout the hearing-impaired teaching fraternity, and points again to the high scores - comparatively - that his pupils achieve at MH Grammar School in English language. Against that, Mr Cornwell points out that albeit that pupils' attainment is higher than average, even at MH School, the degree by which it is better than the national average varies from fairly near the bottom of improvement to right at the bottom of improvement over the national average. Therefore even on Mr Shaw's own figures there is some support for the panel's finding. In her statement, for the purposes of this appeal, Mrs York strenuously contests the contention of Mr Shaw.

In any event, without being able to resolve the matter definitely one way or the other, and bearing in mind the remarks of the court in ex p Cram (Mr Justice McCullough), I do not find that even if it was a mistaken way of proceeding - to insert the knowledge and experience of the panel into the decision - that such insertion had any real effect on the ultimate result, and that it would not be therefore right to remit the matter so that a new panel, not applying its own knowledge and experience, or at the very least having a debate about it, could re-hear the whole issue.

It follows therefore that I reject the appeal brought by the claimants in this case.

MR CORNWELL: I am grateful for your judgment. The issue of appeal does not arise because this is a second appeal. The only remaining issue is that of costs. As the first respondents have been successful in resisting the appeal, I would ask you to award their costs. The costs schedule has been served on the appellants. I understand from my friend that they have no objection to any of the costs. Rather than incur the costs of a separate costs assessment, parties would like the matter dealt with by your Lordship through summary assessment. I pass a copy of that (handed). I would ask there be an order that the appellants pay the first respondent's costs summarily assessed at £5,577.73.

MR JUSTICE CALVERT SMITH: Is that right?

MISS LAWRENCE: Yes, my Lord. That is correct. I have taken instructions from solicitors; they are happy.

MR JUSTICE CALVERT SMITH: I so order. Is there anything else?

MR CORNWELL: No. We have the order. I do not think there is.