J, R (on the application of) v Special Educational Needs & Disability Tribunal & Anor

MR JUSTICE LLOYD JONES: This is a statutory appeal against a decision of the Special Educational Needs and Disability Tribunal dated 28th June 2005. It is an appeal by Mr and Mrs J in respect of the Tribunal's decision concerning the special educational needs statement of their son, W, who is 4 years of age. The statement identifies those needs in Part 2. There is no appeal against Part 2 or Part 3 of the statement. Those needs are identified in the following terms:

Mr and Mrs J had arranged for W to receive an ABA programme at home. This is an applied behaviour analysis programme according to the UCLA model. He had been receiving that since 21st July 2004. This involved 40 hours one to one tuition per week provided at home by a tutor. In addition, W attended nursery school for two and a quarter hours a day for four days a week accompanied by his ABA tutor.

The statement of special educational needs was first issued on 21st December 2004. Prior to the issuing of the statement, the local education authority had consulted with Mr and Mrs J over their preferred placement for W. Mr and Mrs J wanted W to continue his ABA programme. They made that clear from the outset. The LEA was unable to agree to this and offered mainstream nursery school with .9 learning support, Donnington Playgroup with .9 support or Fawood ASAP, Brent's specialist nursery for children with autistic spectrum disorders. The parents did not want any of the LEA's proposed options and urged the local authority to finalise the statement as soon as possible so that they could appeal to the Tribunal. The local authority therefore finalised the statement naming Fawood ASAP on 21 December 2004. Notification of the parents' appeal to the Tribunal was given on 23rd February 2005.

The preference of Mr and Mrs J was for W to continue with his ABA programme with phased integration at, initially, Little Donnington Playgroup, and then at St Benedict's Nursery, an independent mainstream school. In their proposal for the amendment of the statement that is what was initially requested. The LEA's view was that W's ABA programme should cease when he started school. It is fair to say that before and at the tribunal hearing this was the main area of disagreement between the LEA and Mr and Mrs J.

Mr and Mrs J did bring an appeal before the Tribunal in respect of the identified provision in Part 3 of the statement. They did not believe that the provision that the authority had made in Parts 3 and 4 would meet his special educational needs, and they considered that the provision failed to provide sufficiently intensive autistic specific intervention. Therefore, they proposed that the Tribunal should amend Part 3 of the statement by deleting a part of the provision in the then existing statement and replace it with the following:

It was common ground between the local authority and W's parents that he should start reintegration into a school setting. There was disagreement over whether the ABA programme should continue over the period of reintegration and whether or not a timetable should be laid down for reintegration. Miss Scrivens, a special educational needs officer, spoke to Mrs J on 29th March and asked her to say, as soon as possible, to which mainstream maintained school she would like Miss Scrivens to apply for a place for W. A meeting took place between Miss Scrivens and Mr and Mrs J on 11th April 2005 to discuss W's school placement. They indicated that they wanted him to attend St Benedict's. Miss Scrivens asked them to express a preference for a maintained mainstream school. She said that she would consult with Donnington in the meantime. St Benedict's refused to offer a place. Because it is an independent school the local authority were unable to pursue that request.

On 20th April 2005, in a telephone conversation, Mrs J asked Miss Scrivens to consult with Salusbury PS because she had heard from friends that it was a good school. By letter dated 4th May 2005, the headteacher of Salusbury informed the LEA that she could not offer W a place because the reception class had already offered places to the maximum number of pupils permitted in its reception class to those who applied before 22nd April. On 19th May 2005 Miss Scrivens wrote to Mr and Mrs J explaining the position. At that stage the LEA had agreed to name a maintained mainstream school but could not yet identify which school that would be until the admissions round had been completed and they knew which offers had been accepted. On 13th May 2005 Mr and Mrs J wrote to Miss Scrivens to confirm that they wanted her to pursue a place at the Salusbury school. In that letter they say:

The Assistant Director of Achievement and Inclusion for the LEA did in fact grant permission to amend W's statement to name Salusbury as the school in Part 4, in accordance with the strongly expressed preference for the school.

At this stage the positions of the parties were that Mr and Mrs J were pressing for Salusbury School to be the stated school in Part 4, but they were also making it clear that they considered that meeting the educational needs of W would also require ABA to continue for a transitional period of undefined length. The local authority at that stage was prepared to accept Salusbury and had made the necessary arrangements, but did not accept that it was necessary to continue the ABA programme in order to meet his particular needs.

A meeting took place on 23rd June 2005, an intake meeting. That was a meeting at the school. It was attended by Miss Scrivens and by Mr and Mrs J. Also present was Cordelia Francis, who was an educational psychologist for the authority, Heloisa McLeod, link educational psychologist at the school, Karen Miller, the special educational needs coordinator at the school, Edith Clarke, headteacher, and Diana Hayward and Claire Henshaw, Brent Outreach for Autism Team.

Before that meeting Miss Scrivens had produced a document to which I will have to return, called a provision map, and a diagram of special educational provision which would be provided and forwarded to the Salusbury School. That was discussed at the intake meeting with the various professionals involved and Mr and Mrs J. It was agreed that W would have a place in the reception class at the school in September. My understanding is that the next school year had not yet been decided by the head teacher at that point. Mr and Mrs J were informed that the Salusbury School had already begun the process of finding a suitable LSA at a suitable point in the term. They discussed how the school had had experience of working successfully with other children on the autistic spectrum, including one with high functioning autism, of comparable ability to W, who was about to transfer to a mainstream secondary school. Miss Scrivens' account is that Mr and Mrs J were advised by Claire Henshaw, Head of BOAT, that W would have a tailor-made package from BOAT which would be adapted to meet his needs. She said that BOAT would provide whole school training and support the class teacher and the LSA. Mr J in his evidence says that Miss Scrivens' account of that meeting is somewhat incomplete. He says that once the LEA explained the provision that W was to receive, he and his wife made it very clear that they did not accept this. It was clear to the LEA before and at the meeting and to the Tribunal when it heard their appeal, that, although they were seeking a place for W at Salusbury School, it was never on the basis that the Salusbury School could meet his needs independently of or without the ABA programme being in place. It was always their position that he should remain on the ABA programme, albeit he would attend Salusbury School part time, but with an ABA tutor present and providing his support and education at all times.

Mr J's evidence is that in that context there was a frank exchange of views between them and they explained that they wanted him to receive the ABA programme. Diane Hayward spent approximately 25 minutes explaining how the ABA programme would work with the school and how W would be gradually integrated. At the end of the meeting the local authority was in no doubt as to their views that W needed ABA and that with that programme (but only with that programme) Salusbury was an appropriate placement.

The hearing before the Tribunal took place five days later, on 28th June 2005. Miss Scrivens represented the LEA and Cordelia Francis appeared as a witness. Miss Scrivens stated that they gave evidence to the Tribunal about what had been discussed at the intake meeting on 23rd June and the plans which had been made for W's education at the Salusbury School. The Tribunal accepted the documents for the intake meeting as late evidence, and so the provisions of the other documents were evidence before the Tribunal. Miss Scrivens says that there was no dispute before the Tribunal as to whether Salusbury School was the appropriate school placement. However, there was a difference of view about how W should be integrated into the school and, in particular, how long the process should last and whether the ABA programme should continue. She said that both she and Cordelia Francis made the same point at the Tribunal hearing as they made to Mr and Mrs J at the intake meeting. It was the LEA's view that, if the integration could not take place reasonably quickly, it was unlikely that the child was appropriately placed in a mainstream school. Miss Scrivens accepted that at that hearing representatives of the LEA were unable to answer questions relating to the specific qualifications and experience of the staff at the Salusbury School, the SENCO, the class teacher and the LSA. However, she said that Cordelia Francis outlined the training that would have been available through the LEA, involving a training programme for teachers of children with ASD and regular meetings for SENCOs organised by the LEA. The Tribunal was also aware of the staff training that would be provided by BOAT and the occupational therapy and speech and language therapy services because this was set out in the provision map, which was discussed at the intake meeting at the school. She also referred to the occupational therapy update, which was before the intake meeting and the Tribunal, which referred to the provision of training for the LSA. Miss Scrivens says that the training which the Tribunal ordered should be provided for the staff working with W was training which it had heard in evidence could and would be provided in the school. She says that the Tribunal had also heard evidence of the school's experience in successfully working with autistic pupils over the years. She said that during the hearing the solicitor for Mr and Mrs J asked about the qualifications and experience of staff at the school. That is the Special Educational Needs Coordinator, the class teacher, the LSA and the staff as a whole. She had no recollection that he stated to the Tribunal that they should not name Salusbury School because there was no evidence for the school. She did, however, accept that in his summing-up he asked some questions along the lines of: "what do we know about the qualifications of the class teacher?" and argued that the Tribunal would be erring in law if it named a provision about which it did not have full information, or words to that effect.

Mr and Mrs J were represented at the hearing by Mr. Conrathe, a solicitor. In his account of what occurred before the Tribunal, he explains that he sought to explore what was on offer from the authority and whether it would meet W's needs. He said that the late evidence submitted by the authority at the Tribunal was unspecific and aspirational. He said that, recognising that W had autism and that a move to mainstream reception class would be very challenging, it was unclear what experience the teachers and teaching assistant would have, the amount of involvement of the specialist services and whether the provision could in fact be delivered. He sought to explore the provision that the local authority would make available to W at Salusbury School. He said that no one was present from the school to give evidence.

The local authority was represented by Angela Scrivens, LEA officer, who called Cordelia Francis as her only witness. He represented Mr and Mrs J and called David Urani, independent educational psychologist, and Diane Hayward, director of the UK Young Autism Project, which was responsible for delivering W's ABA programme. He said that the LEA did not provide the Tribunal with any documentation detailing the provision at the school generally, let alone in relation to what would be done to meet W's needs (including thus, nothing on the qualifications and experience of the staff who would work with him absent an ABA tutor), or the regularity and amount of the involvement of the authority's specialist outreach team, or the regularity and amount of therapeutic intervention. He asked the local authority about the school's experience in delivering an adaptive environment. He was informed that the authority was aware of another boy who had gone through the school and was in his last year. They considered that the school therefore had experience of adapting the environment. He was critical of Miss Scrivens' comment at paragraph 18 of her witness statement, that the Tribunal had also heard evidence of the school's experience in successfully working with autistic pupils over the years, which conveys an exaggerated and misleading impression of the very limited experience the school had. Mr Conrathe accepted that the authority had explained that its Outreach Service BOAT would visit and advise as necessary, and that Sue Gretton, occupational therapist, in her report of 23rd June 2005 noted that W would be helped by staff experienced with working with children on the autistic spectrum, so that his potential for formal learning can be developed. Mr Conrathe says that he asked the authority about the experience that W's learning support assistant had in meeting the needs of children with autism. The authority replied that they did not know. They were currently seeking to appoint an LSA. They hoped that the person appointed would have experience. Mr Conrathe asked what experience all school staff had of autism. The authority replied that they imagined that the staff had received training from BOAT. He queried the experience of W's class teacher and of the Special Educational Needs Coordinator in the school, who would be responsible for the delivery of special educational needs in the school setting. He said that the authority did not know the qualifications and experience either of W's teachers or of the school's special educational needs coordinator.

The Tribunal in its decision stated:

The appeal to this court is on a point of law. As Stanley Burnton J observed in R v on the Application of Southwark Borough Council v Sendist, Animashaun and Oyedipe in his judgment of 24th May 2005, EWCH 513 (Admin), paragraph 21:

I have come to the view that there was a change of tack on the part of Mr and Mrs J at the hearing. Up to that point it appears, and certainly would have appeared to the local authority, that Mr and Mrs J were pressing for the Salusbury School to be named in the statement, although they had made it clear throughout that they maintained that what was required was the Salusbury School, and in addition a continuation of the ABA programme for a period. Indeed, Mr and Mrs J were actually asserting that the Salusbury School was an appropriate school. Mr J deals with this in his witness statement, where he accepts that at face value the correspondence may convey the impression that he and Mrs J considered that Salusbury School in and of itself could meet W's needs, but he said that this was never the case. He said that the LEA were never under the impression that he and his wife believed that an intensive home-based ABA provision was not necessary. He explains the desperation that he and Mrs J felt in their anxiety to find a suitable mainstream school. One entirely understands that and has great sympathy for it. One can see how that influenced the letters which were written. That was the driving concern behind the writing of those letters.

Mr J is also right when he says that the LEA were never under the impression that he and Mrs J believed that a home- based provision was not necessary. But the fact is that they had never told the LEA that they had any problems with the suitability of Salusbury School, beyond making it clear that they maintained that an ABA programme would also be required. That changed at the appeal hearing, because at the appeal hearing there was a challenge to the suitability of the school. That background explains why, as the local authority accepts, there were gaps in the evidence at the hearing. In particular, at that hearing Miss Scrivens was not able to provide the qualifications and experience of the staff at that school.

On behalf of the local authority, Miss Cafferty makes the submission that, in approaching the question, one must have regard to Schedule 27 of the Education Act 1996, and the need of the local authority and the tribunal to have regard to parental preference. She also refers to section 316(1) and (3) of the Education Act 1996 and to the presumption in favour of a mainstream school. She says that the local authority and the tribunal in turn were required to have regard to that presumption in favour of the mainstream school. She says that the decision which is now challenged must be seen in that context.

Whilst she is correct in her submissions on the effect of those provisions, it is nevertheless clear from section 324(4)(a) of the Education Act 1996 that the LEA has a duty to ensure that a child with special educational needs is placed at a school that is appropriate (see C v Buckinghamshire County Council and the Special Educational Needs Tribunal [1999] ELR 179 per Thorpe LJ).

In my judgment, the correct approach in the present case is to consider each requirement in part 3 of the statement and to consider whether there was evidence before the Tribunal to entitle it to conclude that the Salusbury School could make that provision without the provision of the ABA programme.

I turn to the relevant paragraphs in part 3 of the statement as amended by the Tribunal's decision. Part A sets out the objectives which the special educational provision for the child should aim to meet. Part B sets out the special educational provision which the authority considers appropriate to meet needs and objectives. In his submissions in reply, Mr Woolf has suggested that it is necessary for the LEA to demonstrate that there was evidence which satisfied each of the objectives. To my mind that is not necessary. The objectives are reflected in the statement at part B of the precise provision which is required to meet these objectives. I therefore conclude that Miss Cafferty was correct to concentrate her submissions on section B of part 3 of the statement.

Considering part 3B of the statement, as amended by the Tribunal in its decision, I turn to each of the bullet points in turn:

Furthermore, there was before the Tribunal a letter from the Brent NHS Trust in relation to occupational therapy provision. It was a letter from Sue Gretton:

So far as cognition and learning are concerned, the provision map proposed that this support be provided by an educational psychologist of the LEA in drawing up learning targets and strategies. Behaviour compliance was also addressed in the provision map. This proposed advice and support from the educational psychologist and the BOAT. Play skills was addressed in the provision map, which indicated that advice and support should be obtained from direct sessions from BOAT with advice from the educational psychologist. So far as sensory integration is concerned, the provision map indicated that support would be in the form of occupational therapist sensory integration and that the occupational therapist would provide advice and to the school. There would be advice from BOAT. The third requirement of part 3B of the statement as amended is:

I accept that there was before the tribunal evidence which would have enabled the tribunal to conclude that a mainstream school would be able to make that provision to meet those needs, particularly the high level of support for W.

Furthermore, it is not irrelevant that there was evidence before the Tribunal of teachers who had experience of teaching other pupils with autism, although I accept that it is of course the case that the mainstream school must be able to make the provisions stipulated in part 3. This was nevertheless a matter which the Tribunal was entitled to take into account.

In all the circumstances, it seems to me that there was evidence before the Tribunal, on the basis of which it could reach the conclusion that provision could be made by the Salusbury School to meet the requirements set out in part 3 of the statement.

In his witness statement Mr Conrathe, the solicitor for Mr and Mrs J, makes a number of criticisms of the evidence produced by the local authority. He says that it did not provide any documentation detailing the provision of the school generally, let alone in relation to what would be done to meet W's needs. In considering this, it is important to bear in mind that the Salusbury School was the only school under consideration. There was documentary evidence as to what was planned. The Salusbury School had been chosen as the appropriate school by Mr and Mrs J and no criticisms of the school had been made. Even at the intake meeting no criticisms had been raised. Mr Conrathe says that there was no evidence of regularity and the amount of involvement of the authority specialists and of the Outreach Team, but, as Mr Conrathe accepts in his written statement, the authority did explain to the Tribunal that its outreach service would visit and advise as necessary. The evidence that they gave was that it would be demand led. It would be responsive to W's needs. Mr Conrathe was critical of this and questioned their ability to do that. He drew attention to the limited resources available. However, these are matters on which there was evidence. They were matters on which the Tribunal heard submissions. While views may properly vary in relation to such matters, I consider that the Tribunal was entitled to reach the conclusions that it did.

I have been referred to a number of authorities in this regard. Mr Woolf, on behalf of Mr and Mrs J, drew my attention to a passage in the judgment of Stanley Burnton J in The Queen on the Application of Southwark London Borough Council. At paragraph 21 the judge says:

I have also been referred to T v London Borough of Islington [2002] ELR 426. There, the concern about the lack of evidence was expressed in circumstances where the parents had been taken by surprise at the hearing before the tribunal when the local authority had proposed a different school for the first time. That was a different context from the present case. I have also been referred by Mr Woolf to the judgment of Scott Baker J in W v Gloucestershire County Council [2001] EWHC Admin 481. At paragraph 15 the judge said:

However, I am satisfied that in the circumstances of this case there was sufficient evidence before the Tribunal to entitle it to come to its conclusions. In those circumstances, the question of whether it should have performed an inquisitorial function in seeking further evidence does not arise. There may be room for different views. I express no view on it. It is not a matter for this court on a statutory appeal. This was a specialist tribunal. I am satisfied that there was evidence before the Tribunal on which it was entitled to come to this particular conclusion. I am satisfied that the decision was not perverse.

In his submissions in reply, Mr Woolf took for the first time a rather different point, relying on the judgment of Beatson J in The Queen on the Application of Mrs L v London Borough of Waltham Forest [2003] EWHC 2097 (Admin). He criticised the Tribunal for its failure to address in its ruling the question of staffing. This is a new point. It is not within the scope of the appeal. It is an attempt to convert an appeal on grounds of irrationality into an appeal on grounds of failure to provide adequate reasons. In any event, this was a case where the Tribunal decided that a certain amount of training was necessary. It was entitled, on the basis of the evidence before it, to conclude that training could be provided. The Tribunal did not find that certain levels of experience were necessary. There has been no appeal in respect of the conclusion in relation to needs or in relation to provision. The appeal is dismissed.

I should add this. W is a little boy who clearly faces considerable challenges. He has the good fortune to have parents who are devoted to him and to achieving the best they can for him. That is clear from all the documents I have seen. Nevertheless, it is the case that there is no basis on which to allow this appeal on a point of law.