Wiltshire County Council, R (on the application of) v The Special Educational Needs and Disability Tribunal

"Subject to subsection (2), if any party to proceedings before any tribunal specified in ..... schedule 1 is dissatisfied in point of law with a decision of the tribunal he may, according as rules of court may provide, either appeal from the tribunal to the High Court or require the tribunal to state and sign a case for the opinion of the High Court."

The tribunal is one of those specified in the 1992 Act. The present appeal is brought on points of law only pursuant to Section 11 of the 1992 Act. These are sufficient comments by way of introduction. I must now turn to the facts of the present case.

"The speech and language therapist will work collaboratively with the school staff and parents through jointly agreed targets, strategies and approaches which will then be pervasive across the child's full learning experience in school and at home .....

.....

regular and close home/school liaison so that any difficulties can be rapidly and professionally dealt with and school work and specific teaching approaches can be supported at home. This should also ensure consistency of approach and reinforcement at home and at school."

"We carefully considered the evidence given at the hearing and the papers which the parties submitted to the tribunal in advance. Our conclusions are:

A The terms of the statement should be amended in Part 2 by the terms of the amended statement which is annexed to this decision.

B We concluded that it would be helpful for the statement to have a summary of A's special educational needs in Part 2. Although we understood the argument put forward by Mrs Kinloch that some summaries are of themselves confusing and too detailed, the summary proposed by [A's mother] appears to be helpful.

C As to Part 3, we were at some disadvantage in that we had not been supplied with up to date reports following A's transfer into a specialist environment. The only such report we had was that from Mrs Pontac. It would be helpful if we had received reports from Fosse Way School and from the NHS Speech and Language therapist that sees A. However, the tribunal has to reach a decision on the evidence supplied to it. Regarding speech and language therapy, we were persuaded by the evidence given by Mrs Pontac at the hearing and in her report that the speech and language therapists should work collaboratively with the class teachers and staff at the school. We therefore concluded that a programme from the speech and language therapist needs to be more than a 'consultative model' and that these words should therefore be deleted from the speech and language provision in Part 3.

D Although Part 3 of the statement as presently drawn does not stipulate the necessity for a 24-hour curriculum, it does acknowledge, in particular regarding communication, that targets, strategies and approaches should be pervasive across the child's full learning experience in school and at home. Part 3 also acknowledges the necessity of a consistency of approach and reinforcement at home and in school. The LEA, in order to try to achieve this consistency, has now agreed, some 6 months after A started at Fosse Way School, to provide an outreach service from special schools in Wiltshire in the form of 0.5 of a high-level teaching assistant. The LEA produced as late evidence a draft copy of the proposed agreement. In the agreement the aim of this outreach service is to support the transfer of skills across the home/school settings, for the benefit of pupils with social communication difficulties. The agreement refers to 'advise and assist families in carrying out educational programmes within the home'. The main element is to 'provide support within the child's home for the transfer of skills and education programmes'.

E Although it was not formally conceded that A requires an extended day curriculum, the proposal put forward by the LEA is that the family carries out educational programmes within the home. This is clearly stated in the draft agreement supplied by it. It would seem to us that this is an acknowledgment that A requires an extended day curriculum and that his special needs do embrace out of hours provision. Even without this agreement, the statement and the professional advice from Mrs Pontac and Ms Ravenhill and from Mrs Webster also stressed the importance of consistency of approach. This is particularly important in the development of A's language skills and communication. [A's parents] would therefore appear to be an integral part of the provision, either as a provider of an educational programme as stated in the draft agreement, or in being taught how to achieve the necessary consistency by experts, such as the speech and language therapist.

F If [A's parents] are to be considered as a provider of education programme, then delivery should be provided by the LEA, and not by them. (Section 32 Education Act 1996) and FJ v Cambridgeshire County Council and SENDIST 2002. We have considerable doubts as to whether it is practical for [A's parents] to be able to be taught successfully the necessary programmes in order to achieve the consistency required for A to progress. It is clear that A is presenting with significant demands and that this is having a detrimental effect on the family. It is also having an adverse effect on [A's mother's] mental health. [A's father] works shifts and [A's mother] has 2 other children to look after. The stresses she is having mean that she is unable to concentrate properly on the strategies envisaged by the LEA. A falls asleep in the taxi and is often very tired after school. Provision in the statement should be reasonably practical and realistic to implement. We did not have any objective report regarding the family dynamics, such as Social Services or recent medical reports, but were persuaded by the evidence given by both [the mother and the father] and by Mrs Pontac that it is not feasible for A's parents to be such an integral part of the provision. We did not feel that the parents were simply stating that they would not cooperate, but that the difficulties created at home would preclude them from making a realistic and meaningful contribution to the provision. We had real reservations that 0.5 LSA time is sufficient in any event as it is to be shared with at least 1 other child. A lives an hour away from the school and the LSA would need to spend a meaningful amount of time in the school together with the time to spend at home. We also concluded that a temporary LSA from an agency would not be sufficient.

G A had been in receipt of an intensive ABA programme. This was withdrawn and A was placed in a mainstream primary school. There is general agreement that he was not appropriately placed. He has only recently been transferred into a specialist provision. We cannot say that the provision during the day that he receives at Fosse Way School is inappropriate. He receives specialist teaching in a small group. The TEACCH approach is used and PECS is also consistently used. There is a speech and language therapist available, although only for 1 day a week. However, we were persuaded by Mrs Pontac's evidence that A does require more and that there should be a consistency of approach between the various environments. For the reasons stated above, we were not persuaded that this would be feasible with A remaining as a day pupil at Fosse Way School and for [A's parents] to have to try to achieve the consistency of approach at home with the benefit of some support from an assistant.

H We were not persuaded that a '24-hour curriculum' is required. However, in order to achieve some consistency between the school and out of school environments, we concluded that a residential education may be able to achieve this for the length of time that A attends such a school. Ms Ravenhill was honest that the system at Radlett Lodge School was not perfect in achieving consistency into the home environment. However, we concluded that there was a considerably greater chance of this succeeding if A attended as a residential pupil, even as a weekly boarder. Having said that, there may well be difficulties for A in coming home each weekend. Ms Ravenhill, however, gave evidence that A was presently too young to be a termly boarder.

I Having concluded the above, Fosse Way School is unable to offer such an education at the present time. Unfortunately, there is no place available at Radlett Lodge School until September 2005. Although this is not satisfactory, it is the only other school that is proposed. It will be necessary therefore for A to attend Fosse Way School for the remainder of this term. It would have been pointless, in view of the timescale, to adjourn this hearing for the parents to find another school that had an immediate vacancy and none was asked for. We did not conclude that the day provision at Fosse Way School was inappropriate, only that A required more. We therefore concluded that attendance at Radlett Lodge School would not be an unreasonable use of public expenditure. Although there will be a considerable demand on the LEA's expenditure, we concluded that the proposal put forward by the LEA was not appropriate. Although it had a good intention, although rather belatedly, in creating some consistency into the home environment, further investigation should have been carried out to see if it was reasonably practical for this to be achieved in this case and some persuasive evidence given to us. It is for the LEA to persuade us that its proposal is feasible and on the evidence we had, we concluded that this was not the case. Part 4 of the statement should therefore be amended to show that A should attend Radlett Lodge School from September 2005 as a weekly boarder.

J Part 3 of the statement requires further amendment, in the light of our conclusions. Part 2 (sic) should be amended by the agreed terms which are contained in the draft amended statement annexed to this decision. Part 3 should contain provision that 'in order to achieve the necessary consistency of targets, strategies and approaches between the school environment and out of school environment that [are] necessary to meet A's special educational needs, A should attend a residential special school.'"

"Until the end of the summer term 2005, attendance at a special school with provision for pupils with autism on a daily basis, namely Fosse Way School. From September 2005 attendance at a residential special school for children with autism as a weekly boarder, namely Radlett Lodge School."

The tribunal nominated Radlett Lodge School, which was unduly expensive. A's needs could, and therefore should, have been met by Fosse Way School which was less expensive.

The tribunal did not have sufficient information. Accordingly they ought to have adjourned, but failed to do so.

The tribunal erred in that it failed to specify the amount of educational provision which A required.

The tribunal took into account an irrelevant consideration, namely the needs of A's family rather than A's special educational needs.

The above formulation is my summary of the four principal heads of appeal as they have been presented. A number of arguments have been grouped together under each of those four heads.

If, in the light of an assessment under Section 323 of any child's educational needs and of any representations made by the child's parent in pursuance of Schedule 27, it is necessary for the local education authority to determine the special educational provision which any learning difficulty he may have calls for, the authority shall make and maintain a statement of his special educational needs.

The statement shall be in such form and contain such information as may be prescribed.

In particular, the statement shall -

give details of the authority's assessment of the child's educational needs, and

specify the educational provision to be made for the purpose of meeting those needs, including the particulars required by sub-section (4).

A statement shall -

specify the type of school or other institution which the local education authority consider would be appropriate for the child,

if they are not required under schedule 27 to specify the name of any school in the statement, specify the name of any school or institution (whether in the United Kingdom or elsewhere) which they consider would be appropriate for the child and should be specified in the statement,

specify any provision for the child for which they make arrangements under Section 319 and which they consider should be specified in the statement."

Section 326 of the 1996 Act empowers the parent of the child concerned to appeal to the tribunal against the contents of the statement. The tribunal is empowered either to uphold the statement or to amend the statement as it sees fit.

"A statement should specify clearly the provision necessary to meet the needs of the child. It should detail appropriate provision to meet each detailed need."

"Counsel have addressed detailed arguments on the effect of schedule 10 paragraph 3.3 in a case where there is more than one option appropriate to the needs of the child and where one option is more costly than the other or has disadvantages. Whilst it is unnecessary to go into such matters for the purpose of my decision, I should record that I have come to the conclusion that the submissions in this respect on behalf of the local authority were correct. Once a conclusion had been reached that each of the two alternatives would be appropriate to the special educational needs of the child, the parents' choice would prevail unless either of the exceptions set out in paragraph 10 (3) applied. Where it is necessary to consider whether they apply, it seems contrary to the Act to weigh at that stage advantages to be gained by the child in considering whether the child's attendance at the school would be incompatible with the provision of efficient education for the other children with whom he would be educated or incompatible with the efficient use of resources. Counsel for the appellant acknowledges that the use of the word 'incompatible' indicates that something more than a marginal disadvantage has to be demonstrated. The situation was that one alternative would result in significant additional expenditure, then provided both schools were appropriate for the child's special educational needs the local authority would be entitled to justify sending the child to a school other than that of the parents' choice. To hold otherwise would, in my judgment, be to oblige the local educational authority to make the best possible education available, and, as Latham J pointed out in the passage to which I have referred in S (The Special Educational Needs Tribunal) v The City of Westminster:

'Parliament has imposed an obligation to meet the needs of the child and no more.'"

L v Clark and Somerset County Council [1998] ELR 129 concerned a severely dyslexic boy. The boy's mother successfully appealed to this court on the basis that the statement, as amended by the tribunal, was insufficiently specific. At pages 136 to 137, Mr Justice Laws said:

In R v City of Wakefield Metropolitan District Council ex p Greenwood, 29 January 1998, Mr Justice Laws held in the circumstances of that case that respite care did not fall within the meaning of "special educational provision". At page 11 of the transcript, Mr Justice Laws said:

In C (The Special Educational Needs Tribunal) v London Borough of Greenwich [1999] ELR 5 the statement issued by the local education authority, as amended by the tribunal, included the following passage:

Mr Justice Richards held that a statement in that form was unlawful in this respect. At page 13 the judge said:

W v Gloucestershire County Council [2001] EWHC Admin 481 was a case in which important material was not before the tribunal. Mr Justice Scott Baker quashed the decision because the tribunal did not take into account an important factor. At paragraph 15, the judge said:

Finally, I should mention L v London Borough of Waltham Forest and Another [2003] EWHC 2907 (Admin). The circumstances of that case are far removed from the present. However there is one passage which is relevant to the grounds of appeal in this case. At paragraph 14 of his judgment, Mr Justice Beatson said:

Bearing in mind all of the above guidance, I must now turn to the issues in the present case.

"We were not persuaded that a 24-hour curriculum is required."

The phrase "24-hour curriculum" is not a helpful one, essentially for the reasons given by Mr Justice Laws in R v City of Wakefield Metropolitan District Counsel ex p Greenwood at page 12 of the transcript. No child literally requires a 24-hour curriculum.

"As to Part 3, we were at some disadvantage in that we had not been supplied with up to date reports following A's transfer into a specialist environment. The only such report that we had was that from Mrs Pontac. It would be helpful if we had received reports from Fosse Way School and from the NHS speech and language therapist that sees A. However the tribunal has to reach a decision on the evidence supplied to it."

Mr Beard submits that in this passage the tribunal misunderstood their function (see W v Gloucestershire County Council at paragraph 15).

Although there were omissions from the evidence, it is clear from the decision as a whole that the tribunal had quite enough evidence to decide the issues before them. For example, in paragraph (c) the tribunal went on to say that, despite the absence of evidence which they would expect to see from the local authority, the tribunal was able to decide these particular points on the basis of Mrs Pontac's evidence.

At no point did either party apply to the tribunal for an adjournment.

The passage in W v Gloucestershire County Council is addressing primarily the position where parents failed to adduce relevant evidence (see the last sentence). Local authorities generally have greater resources and greater understanding of the issues that arise in these sorts of cases. Of course, in an extreme case the tribunal might adjourn of its own motion, without any application, because it considers that the local authority had prepared its evidence inadequately. However this is not such an extreme case.

Let me suppose that half way through the hearing the clerk to the tribunal had reminded members of their power to adjourn of their own motion and had invited them to consider doing so. It seems to be inevitable that in the circumstances of this case the tribunal would have decided not to do so. This was a case where there had been delay already. The child A had been sent to an inappropriate primary school (see paragraph G). On top of that, ever since July 2003, the necessary out-of-school provision had been withdrawn. All this was to A's detriment. In addition to these considerations, there was already a five-month waiting time for a place at Radlett Lodge School.