KW & Anor v London Borough of Lewisham & anor

This is an appeal by K.W. and V.W., the parents of G. brought against the London Borough of Lewisham and Susan Rees, the Chair of the Special Educational Needs and Disability Tribunal, which determined their appeal against certain aspects of the statement made by the London Borough of Lewisham in respect of G’s special educational needs and their provision.

G. was born on 30 September 1998. He has an exceptionally rare form of epilepsy which is intractable, variable in its presentation and appears to be deteriorating. It is presently controlled by very heavy medication. He has significantly delayed cognitive development in all areas, communication difficulties, and severe problems with mobility, fatigue, bladder and bowel control and sleeping patterns. His level of functioning is uneven but his cognitive ability is reckoned to be at around 12 month level. Accordingly, it is said by the appellants that G. has particularly significant and complex special educational needs.

G. has been the subject of a statement of special educational needs maintained by the London Borough of Lewisham (the LEA) under section 324 of the 1996 Act since 21 October 2004. That statement named W School. The appellants were unhappy with certain aspects of this statement and appealed to the Special Educational Needs and Disability Tribunal (SENDIST) pursuant to section 326 of the 1996 Act.

The appeal to SENDIST was lodged on 21 December 2004. The hearing took place on two days the 4^th of May and 6^th July 2005 and the decision was issued on 29 July 2005. The appellants now appeal against that decision pursuant to section 326 of the 1996 Act. That is an appeal on a point of law. The second respondent SENDIST has not participated in this appeal. The first respondent, the LEA, has. At the SENDIST hearing evidence was presented by both sides in written and oral form. The appellants each gave evidence and called in support of their appeal evidence from Dr Reed, an NHS chartered clinical child psychologist and paediatric neuro-psychologist, and Ms Birnbaum an independent educational psychologist. Both gave written evidence supplemented by oral evidence. The LEA called evidence from Alison Youd the head teacher of Watergate school. She has been the head teacher at that school for over seven years. She had not met G. In addition the LEA called evidence from Ms. Cava an educational psychologist who is head of the LEA education psychology service. She has 16 years experience as an educational psychologist. She and Ms. Youd had viewed a video of G prepared by his parents in order to demonstrate his difficulties. Neither submitted written evidence but gave evidence orally.

The SENDIST came to certain factual conclusions. They described G’s epilepsy in terms which are not in dispute. They described how he had been educated at home by his parents and a helper since October 2004, prior to which he had attended two mainstream nursery schools and one mainstream primary school but was withdrawn after the beginning of Autumn term 2004. The appellants wanted G to return to a school environment so he could be educated alongside other children. He had spent two days at the National Centre for Young People with Epilepsy (NCYPE) and had been assessed as suitable for a weekly residential place at that school.

The nub of the dispute between the appellants and the LEA was that the LEA had named the W School, a maintained special day school, as a school which could meet G’s needs. The appellants, however, took the view, supported by their expert witnesses, particularly Ms Birnbaum, that G’s special educational needs were such as to require a “waking day curriculum” within a setting for pupils with severe educational difficulties. That meant, in effect, that a residential educational placement within a setting for pupils with severe epileptic difficulties was necessary to meet G’s special educational needs. Their contention was that the description of the provision required to meet G’s needs as set out in part 3 of the statement should be changed in a number of respects. Principally the appellants were claiming that there should be additions to the statement which would make it clear that G’s educational needs required provision which went beyond the conventional school day and which, therefore, bore the clear implication that the part 4 named school should be a residential one such as the NCYPE. They also suggested that there was need for a specialist school which catered specifically for children suffering from epilepsy and which could cater for the particular form of epilepsy from which G suffers. Save for one aspect concerning an incident of “challenging behaviour” which occurred during the appellants’ visit to W School, which, though mentioned in argument was not given any prominence in this appeal, the appellants’ case was not based on any particular criticism of the W school but rather that the needs of G were such that they could not be catered for within a non residential setting and within a school which did not specialise in catering for pupils with epilepsy.

The SENDIST summarised the two contentions in paragraphs 4 and 5 of their decision. They say as follows:

“4.

The parental reasons for NCYPE are that he needs a specialist residential placement with a waking day curriculum or at least a specialist school catering for children with epilepsy and their preferred school, NCYPE, is too far away to travel on a daily basis…

5.

The LEA states that a place at NCYPE is unsuitable for G. The peer group of similar aged children is very small, it is over provision as he does not require residential provision and it amounts to a unreasonable use of public expenditure because the LEA have suitable maintained provision available. They also have concerns about the school….some conditions which raised concerns about health and safety and they also formed the view that the care element of the provision did not amount to any more than care and was not in fact a waking day curriculum. The LEA state that G’s needs can be met at the W school, a maintained special school that caters for primary pupils with severe learning difficulties.”

The SENDIST summarised the position of the appellants concerning W school in the following terms as part of paragraph 6:

“…this school is a very good school and this is not in dispute; Mr and Mrs Walker simply stated that it could not cater for the complexities of G’s needs because his epilepsy was so unusual in its presentation and that G requires a 24 hour curriculum in order to maximise his potential by constant reinforcement.”

The SENDIST in paragraphs 7 and 8 of their decision set out in summary form the evidence of the LEA concerning the provision at W school. The main source of that evidence was Ms Youd. In paragraph 8 it said, among other things,

In paragraphs 10 and 11 the SENDIST summarised the evidence of the appellants. It reads as follows:

“Mr and Mrs W stress in the evidence presented by themselves and their witnesses that G needs residential provision. Ms Birnbaum describes G as a unique child and quotes Dr Hughes who describes his presentation as unique. G’s progress is not linear and will not fit the usual school day of being able to learn from 9am to 3pm. A more creative approach is needed to cater for his needs. The issue will be to maximise his learning opportunities throughout the day. She considered that G requires a total communication approach which marries up what is happening at home and school….Ms Birnbaum considered that G needs a multi-disciplinary approach in order to maximise the potential for learning. Lastly, Ms Birnbaum considered that the context of G’s medical needs could only be addressed in a residential setting where the signs can be closely monitored. Dr Reed who has been closely involved in treating G concluded that a residential placement would be best and that the separation from his parents would not present as a major issue for G given his cognitive difficulties. Dr Reed was also concerned about the effects on [the appellants] and their need for help and a break. [The appellants] stressed…they were not so concerned with a key stage curriculum and more concerned by his need to grow up with the maximum amounts of life and independence skills.

In paragraph 11 the SENDIST summarised Ms Birnbaum’s evidence concerning one to one provision namely that one to one at all times was required although it was envisaged that would gradually be reduced.

Ms. Mountfield has criticised the Tribunal for failing adequately to record the evidence, particularly of Dr Reed, and has drawn my attention to certain passages in the reports of Dr Reed and Ms Birnbaum. In my judgment, as a statement of what the appellants contentions were and a summary of the expert evidence supporting that case, what the Tribunal has recorded is perfectly adequate to indicate that they have recognised their concerns and the evidence to support them. I address, later, a further, and more serious, criticism namely that, insofar as the Tribunal, by its decision, has not accepted the conclusions that a specialist school and/or one which provided education beyond the confines of the conventional school day was required to meet G’s needs, the Tribunal has not explained why it rejected this evidence.

Paragraph 12 of the decision summarised the respective costs of a placement at NCYPE and W. Paragraph 13 indicated that the parties were able to agree many parts of the statement but that there were some issues left to the Tribunal to decide inevitably some of those were “placement specific.”

The Tribunal reached certain conclusions and set out its reasons in five main paragraphs. In paragraph A the Tribunal concluded that a residential placement was not required to meet G’s educational needs. They state as follows:

“The evidence did not satisfy the Tribunal that his needs cannot be met within local day special school provision. The Tribunal accepted the evidence presented by the LEA through Ms Youd that W school could meet G’s needs.”

The Tribunal then recorded that it had heard two days of evidence from professionals and the appellants and went on:

“…such a placement did not underestimate his difficulties or the level of provision required to meet his needs…The school named by the LEA is a very good school with an experienced head teacher and staff and a track record of catering for the needs of children with epilepsy and complex difficulties. The school is well funded, managed and has a full complement of therapy provision. The Tribunal accepts that for some children a residential placement is required. In G’s case the reasons warranting residential placement for educational needs were not sufficient. The Tribunal had regard to the statutory guidance laid out in the Code of Practice of special educational needs….”

In paragraph B the Tribunal indicated that it was aware that:

“It can only order educational provision and not provision which would amount to medical care or social care. However, in coming to its decision the Tribunal took into account that G’s needs are complex and that for him the meaning of education had to be defined in terms of developing some independence and control over his environment. Any placement would have to be able to understand how his epilepsy impacts on his learning and progress.”

In paragraph C the Tribunal said as follows:

“G does require a placement where his epilepsy will be appropriately understood and provided for. However, this does not need to be at NCYPE. The Tribunal found that a placement at W school would meet G’s needs. This school has a track record of catering for children with epilepsy and good procedures for alerting staff members, medical professionals and parents of any concerns…”

In paragraph D the Tribunal addressed the questions of expenditure as well as the LEA’s concerns about NCYPE. They state their conclusions as follows:

“The Tribunal concluded that a placement at NCYPE was suitable for G and it would have met his needs but to place him there would amount to an unreasonable of public expenditure. The Tribunal appreciated that the LEA had concerns about the peer group and the extent to which the care that the pupils receive can be said to amount to a waking day curriculum but nonetheless these concerns could not in themselves make the school unsuitable.”

In paragraph E the Tribunal addressed the question of one to one support and concluded that additional one to one support should be made available to G and that the statement would be amended to take account of this. The parties had also agreed certain other changes to the statement and those changes together with the one upon which the Tribunal had decided in favour of G were set out in the Annex attached to the decision.

The outcome, therefore, was that the appeal as to the contents of parts 2 and 3 was allowed in part but the appeal as to part 4 was not allowed. The grounds of appeal may be summarised as follows:

The appellant identified a number of principles of law which are relevant to the present case. The first is that SENDIST can only order the LEA to make provision for a child’s educational needs notwithstanding, non educational needs, must also be recorded in the statement. Whether needs are educational or non educational is frequently an area of dispute. In Bromley LBC v SENT (1999) ELR 260 the Court of Appeal observed (at 295F to H) that there is no sharp dichotomy between special educational provision and non-educational provision; there is a “potentially large intermediate area of provision which is capable of ranking as educational or non educational”. This is an area where the LEA and, on appeal, the Tribunal must exercise a case by case judgment “which no prescriptive education could ever hope to anticipate”. The Court of Appeal concluded that Parliament intended that respect should be afforded to the Tribunal’s conclusions on these issues.

Ground 1: The decision fails to make adequate determinations on substantial issues in dispute or to enable the parents to understand what its decision was in relation to such points in dispute or to explain why expert evidence was rejected.

It is said that the decision only partially records unchallenged evidence of Dr Reed as to the complexity of G’s needs. It barely acknowledges that he gave oral evidence although, on any view, his evidence took in excess of an hour and possibly up to half a day and there is no analysis or record of much of that oral evidence. It is acknowledged that the decision correctly recorded that G’s form of epilepsy is rare and uncontrolled by medication and correctly identified the need for an appropriate school placement for G as being one which understood and could make provision for epilepsy. It is said that the SENDIST failed to record their conclusions on the disputed issue of why it did not consider a placement at a school with detailed understanding of and experience in the management of the rare and subtle presentation of G’s case was necessary in the face of what is said to have been detailed expert evidence that it was.

Further, if the SENDIST proposed to depart from the multi-professional evidence given by Dr Reed and Ms Birnbaum it ought to have recorded that evidence and given reasons for departing from it or rejecting it. It is said that it failed to do so.

Ground 2. The appellant concedes that the SENDIST recorded that G suffers from night seizures which result in his being very tired in the mornings and generally lacking stamina. It also recorded the parent’s view that a waking day curriculum was needed and that this was disputed. It also recorded the LEA’s view that the NCYPE did not provide a waking day curriculum and that the care element at that school was not in the view of the LEA educational provision. It recorded Ms Birnbaum’s view that G’s progress is not linear and would not fit the usual school day between 9am and 3pm. It therefore recognised there was a dispute on the issue of what type of educational provision G required and whether it required educational provision to extend beyond conventional school hours. There was a dispute whether provision for G outside those conventional school hours was “purely care” or could amount to an educational need. It was said that the SENDIST ought to have reached an explicit conclusion on this issue and ought to have quantified and specified what type of educational provision was needed out of school hours. The appellants contend that the Tribunal, in Paragraph B, accepted that, in the case of G, the meaning of education had to be defined in terms of developing some independence and control over his environment and that any placement would have to be able to understand how his epilepsy impacts on his learning and progress. I agree that the Tribunal made this finding. It stated that it took it into account in coming to its decision. It is further contended that SENDIST did not record a view whether any such educational provision was needed outside the hours of 9am to 3pm. Conversely, if it were implicit in its decision that it decided that educational provision was not required outside those hours, it did not explain why it had rejected the view of Dr Reed and Ms Birnbaum that G’s education could not fit into an ordinary length school day and, in particular, how a placement at a day school, operating ordinary school hours, could make such provision to accommodate frequent changes in health, presentation and disrupted sleeping patterns.

Ground 3. It is said that the SENDIST ought to have taken into account its findings of fact as to his tiredness in the morning and general lack of stamina, his educational need to develop some independence and control over his environment, and to explain how this could be done within the parameters of the 9am to 3pm school day. Its failure to do this, it is argued, constitutes SENDIST acting irrationally in concluding that W school could meet George’s needs.

The respondent identifies a number of principles which are applicable when considering on appeal a SENDIST decision. They are as follows:

The respondent deals with the three grounds of the appeal in the following ways.

Ground 1. The respondent says that the appellants, in the agreed working document, describe the provision to be contained in part 3 of the statement to be “a specialist [residential] school for pupils with epilepsy, multiple learning, communication, motor and other medical difficulties”. The main outstanding issue was the need for residential provision.

The LEA says that Ms. Cava and Ms Youd provided extensive oral evidence as to the provision necessary and available to meet G’s educational needs. Ms Cava gave evidence why she felt a 24 hour curriculum was unnecessary. The respondents reject the implicit contention, if such it be, that the Tribunal should have given less weight to her evidence on the basis that she was in the employ of the LEA. The respondent says it is clear that the Tribunal favoured the evidence of the LEA in respect of educational provision accordingly the appeal constitutes a collateral attack on a finding of fact made by the Tribunal. The respondent relies on passages already referred to in paragraph A and paragraph C of the decision as constituting a sufficient statement of reasons on this issue. I agree with Ms. Mountfield that, as there was no written evidence from the LEA, it would not be proper for me to make findings of fact about the content of the LEA’s evidence save to the extent that it is revealed in the SENDIST decision or any other document which was before the Tribunal.

Ground 2. The need for an extended school day. The respondent focuses on findings which are made in paragraph A, paragraph B and paragraph C in the decision as being sufficient.

Ground 3 – no adequate statement as to why the need to develop independence and control over his environment could be met within the ordinary length day placement. The respondent contends that the Tribunal did have regard to this consideration and cites paragraph B. The respondent contends that the Tribunal was alive to these factors in reaching its decision and accepted W school as one which would be able to ensure that he made adequate progress relative to his level of need.

On this particular ground the respondent relies on a passage in R (on the application of Greenwood) v Wakefield MDC and SENT 1998 EWHC Admin 1996 (Laws J.):

“The Tribunal clearly concluded, and was entitled to conclude, that Kay’s special educational needs were met by the provision offered at Fieldhead school. That necessarily implies a rejection of any need on educational grounds for a “24 hour curriculum”.”

Ms. Mountfield contends that this statement is fact specific and is not a statement of a general proposition. I agree, but in my judgment in a case, such as this, where, in reality, the main issue was whether the named school should be a day school or a residential one and where the main disputes about the provision required fed directly into that issue what Laws J then said is apposite.

In summary the respondent contends that the appellants know why they did not succeed on the main issues: the Tribunal preferred the evidence of the LEA’s witnesses. There was ample evidence upon which it could properly conclude that G’s needs would be met at W school.

It also contends that, as social and medical needs are not educational needs, in the event that G was continually too ill to attend school or too tired then the LEA would have to have regard to section 19(1) of the 1996 Act provision of education other than in school. A residential placement at NCYPE was not and is not the cure. There was no evidence that a teacher might work with G at unusual hours during the night. Life skills such as eating, toileting and dressing can be taught during the ordinary school day with parents reinforcing them at home if they wish. In summary, the respondents say there was a conflict of evidence as to whether he could only make adequate progress within a 24 hour curriculum. The Tribunal clearly favoured the evidence that W school was able to meet G’s medical needs. In so far as these submissions go beyond what is said in the decision or was in written evidence before the tribunal I do not take them into account. I do not consider that the s.19 point is an apt one to take where the challenge is not on the merits but on the sufficiency of the reasoning.

In my judgment this decision was adequate to inform the appellants why they had succeeded in their appeal to the extent that they did and why they had failed in the appeal to the extent that they did. In its numbered paragraphs the Tribunal summarised both the contentions and the evidence. It did so in terms which demonstrate that it recognised the appellants’ contentions, both in relation to the need for a specialist school dealing with children with epilepsy and that G’s educational needs required educational provision beyond conventional school hours. It also recognised that these contentions were supported by expert evidence in the form of Dr Reed and Ms Birnbaum and summarised the gist of their evidence.

It also recorded the evidence which it had received in relation to the qualities of W school and the facilities it provided as well as its breadth and depth of relevant experience. It was clear, and the Tribunal recognised this, that the LEA, in proposing to name W school, did not accept the contention that a specialist school dealing with children suffering from epilepsy was required nor that educational provision beyond the conventional school day was required. The LEA’s contention was that W school, a first rate school with a track record of catering for children with epilepsy and with complex difficulties, was sufficient.

In connection with the case for a specialist school, in my judgment paragraph C of the decision sets out, in summary form, the essence of the SENDIST decision and why it took it. The Tribunal recognised that G requires a placement where his epilepsy will be appropriately understood and provided for. It concluded that a placement at W school would meet his needs in this respect. It explains why it reached that conclusion: namely that W school has a track record of catering for children with epilepsy and good procedures for alerting staff members, medical professionals and parents of any concerns. It also recorded that the consultant who liaised with W school is also involved with NCYPE. The Tribunal concluded that a placement at NCYPE would have been suitable for G. In doing so it rejected the misgivings which the LEA had expressed. In my judgment the appellant’s have been told by SENDIST why they lost on this issue. The Tribunal’s view was that the provision at W school was sufficient to meet G’s particular needs. It was because of its track record and experience in dealing with children with epilepsy.

I have already indicated that the Tribunal, in paragraph B, reached a decision on whether education provision had to be defined in terms of developing some independence and control over G’s environment given the complexity of his needs. It decided that any placement would have to be at a school which would be able to understand how his epilepsy impacts on his learning and progress and that this is education provision. Paragraph B and its conclusion was a matter which the Tribunal explicitly took into account in its decision on education provision which is set out in paragraph A.

The decision in paragraph A is, in my judgment, clear. The conclusion is that a residential placement is not required. The evidence before the Tribunal did not satisfy it that G’s needs could not be met within local day special school provision. It is implicit in that decision that the Tribunal was deciding that his needs could be met within the conventional school day albeit with the assistance of the one to one support the subject of paragraph E. The Tribunal recognised that, in coming to that decision, it was rejecting the evidence over two days from professionals and the appellants. It rejected that evidence because the view of the Tribunal was that a placement at W school did not “underestimate his difficulties or the level of provision required to meet his needs”. It supported that conclusion with its finding that W school is “a very good school with an experienced head teacher and staff with a track record of catering for the needs of children with epilepsy and complex difficulties and that it is well funded, managed and has a full complement of therapy provision”. The Tribunal, having set out in paragraph 7 the nature of the provision at W school, had indicated in paragraph 8, that having “been consulted in a detailed way by the LEA and having had every opportunity to consider the appellant’s concerns”, Mrs Youd “was confident that the staff had sufficient expertise and training in meeting the medical and curricular needs of children with epilepsy, that G would fit into the school and match the profile of the children already there”.

In my judgment, the SENDIST, in paragraph A, sets out, in summary form, the reasons why, including matters of expenditure, it rejected the contention that, in this particular case, W school was not sufficient provision to meet G’s needs. Those reasons were rooted in the evidence given by the LEA and summarised in the earlier part of the decision. It followed from this that the part 3 should not identify, either explicitly or implicitly, residential education as educational provision required to meet G’s needs.

In my judgment, in a case such as this, where there were contending points of view being expressed by various professionals on either side of the argument the Tribunal has given sufficient reasons by identifying which side of the argument had succeeded. It did so by indicating that it relied on the evidence given by one side that educational provision sufficient to meet Gs needs could be provided at W school and by indicating that this was because of the evidence of its quality and track record in dealing with children with similar needs.

In my judgment, therefore, this appeal fails.