S, R (on the application of) v Hertfordshire County Council

MR JUSTICE UNDERHILL: This is an appeal under section 11 of the Tribunals and Inquiries Act 1996 against a decision of a Special Educational Needs and Disability Tribunal dated 12th September 2005. The Respondents are the Hertfordshire County Council and Mr L Bennett, the Chairman of the Tribunal. The decision related to a statement of special needs for a child to whom I will refer to as "H". I refer to her parents as "Mr and Mrs S". Mr S, the Appellant, was represented before me by Miss Scolding and the Council by Miss Stout. Written submissions were made by Mr Sheldon of counsel on behalf of Mr Bennett, but there was no appearance on his behalf at this hearing.

The procedural history leading to the decision of the Tribunal can be summarised as follows.

Mr S's grounds of appeal have been reduced, and to some extent reformulated, since the appeal was first lodged. As finally developed before me by Miss Scolding, they essentially fall under two heads: a) that the Tribunal erred in law by refusing to admit either Mrs O'Keefe's written or her oral evidence, and b) that the decision of the Tribunal was unreasonable in that it failed to take account of or consider the insufficiency of the evidence presented to it when determining that Mount Grace was the appropriate school to appear in part 4 of the statement. I take those grounds in turn.

In their submissions the parties deal separately with the refusals by the Tribunal to admit Mrs O'Keefe's written statement and her oral evidence. This reflects the fact that different formal rules apply to written and to oral evidence and accordingly that distinct applications had been made to the Tribunal in relation to each. I will maintain the same distinction, but it is an important preliminary to both aspects to appreciate the procedural position reached at the start of the hearing on 26th August 2005. As at that point, the Tribunal had received evidence and submissions on most of the issues and had reached provisional conclusions on them. It is common ground before me that while there may be circumstances in which "provisional" conclusions announced under Regulation 35 can be revisited the principal reason why they are so described is in order to prevent premature appeals. In all ordinary circumstances, such provisional conclusions will reflect the Tribunal's concluded views on the issues in question, and the parties are not entitled to attempt to revisit them on the adjourned hearing. The directions given following the hearing in June reflect a clear intention by the Tribunal to restrict the issues for the adjourned hearing to those which remained open following the announcement of provisional conclusions, and to permit further evidence only on the issue of the appropriateness of Mount Grace as the school to be nominated in part 4. It has not been submitted that those directions were unfair or unlawful: they were in fact plainly sensible case management. As regards the live part 2 and 3 issues and the question of the appropriateness of St Catherine's, these had been the subject of evidence at the previous hearing.

It follows that, as a matter of substance, Mrs O'Keefe's written or oral evidence was only admissible at the hearing of 26th August 2005 to the extent that it was relevant to the part 4 issue, and more specifically to that aspect which the Tribunal had not so far had the opportunity to consider, namely the suitability of Mount Grace.

Against that background, I should briefly describe Mrs O'Keefe's written report. It runs to some 39 pages and is on its face directed entirely to an assessment of H's needs and the provision required to meet those needs, i.e. to part 2 and part 3 issues. There is no reference whatever to Mount Grace and only passing references to St Catherine's, such references as there are being taken directly from the literature which was already before the Tribunal.

I turn to the formal position as regards the admissibility of this evidence under the rules, and I first take the question of the oral evidence of Mrs O'Keefe.

Regulation 34 of the 2001 Regulations is in the following terms:

That Regulation makes it plain that the parties to an appeal to the Tribunal have in principle the right to call oral evidence, provided of course that the evidence is relevant to a matter in issue and subject to the restriction to two witnesses. In my view that right must be subject to the general case management powers of the Tribunal, specifically including the power under regulation 35(2)(a) to give directions on an adjournment. As I have already indicated, it was rightly not submitted that the directions given on 22nd June were outside of the Tribunal's powers.

It follows that the Tribunal was entitled to exclude the evidence of Mrs O'Keefe to the extent that it was not evidence directed to "a school proposed under paragraph 1", i.e. an alternative mainstream school proposed by the Council. Plainly it was the view of the Tribunal that the oral evidence proposed to be adduced from Mrs O'Keefe did not meet that criterion. As I have already indicated, her written report did not appear to be directed to the part 4 issues at all. However, Miss Scolding submits that that is not decisive. Mrs O'Keefe's oral evidence need not have been limited to the contents of her written report and could have been extended to cover any relevant issue. She refers to the witness statement of Miss Keogh, who states that she "made reference to the fact that Janet O'Keefe's evidence would be helpful in addressing the issue of the appropriate school to be named at part 4, as well as speech and language provision at part 3." To some extent that evidence is supported by the manuscript contemporary note of the chairman, which is not entirely legible but appears to read:

It is plain that the kind of relevance asserted by Miss Keogh was not what was contemplated in the Tribunal's direction. No doubt part 2 and part 3 issues are, in the indirect way which she explained, capable of bearing on the part 4 issue which the Tribunal had to decide. But the Tribunal had already received evidence as to part 2 and part 3 issues at the hearing in June, and that part of the case was, and was known to the parties to be, over. Accordingly, it was well within its discretion for it to refuse to allow Mr S to revisit those issues by adducing further part 2 and part 3 evidence.

That is a sufficient answer on this point, but I should say that I do not believe that the exclusion of Mrs O'Keefe's oral evidence gave rise to any substantial unfairness to Mr S or, critically, to H. This was an expert tribunal. It had heard competent evidence about part 2 and part 3 issues on a previous occasion, which it was well qualified to judge and to bring to bear on the remaining issues which it had to resolve in the August hearing. I do not need to embark on the dangerous exercise of assessing whether there was any realistic chance that, if Mrs O'Keefe's oral evidence had been permitted to be adduced on the basis for which it was argued, the outcome would have been any different. But I am bound to say that I think it very unlikely.

I turn to the exclusion of the written evidence. Regulation 9(1) of the 2001 Regulations provides as follows:

It is common ground that the evidence which Mr S sought to have adduced from Mrs O'Keefe was late written evidence falling within the scope of Regulation 33. It is to be noted that, quite apart from the various specific criteria identified in paragraphs 1 to 3 of Regulation 33, the power which it confers to admit such evidence is discretionary only. In my opinion the Tribunal would have been entirely justified in excluding the written evidence of Mrs O'Keefe as a matter of general discretion, having regard to the case management considerations discussed above. The report was concerned with issues which the Tribunal had already dealt with, and its relationship to the remaining part 4 issues was on any view tangential and remote. It had been served very late by a party who already had a history of late service of evidence. If late evidence was to be served at all, the best opportunity to serve it would have been on the occasion of the service of second supplemental cases in July 2005, but it was not in fact served until nearly four weeks later.

However, the same decision could also have been justified by reference to the more specific provisions of Regulation 33. In the first place, for essentially the same reasons as discussed above, the inclusion of the evidence could properly be regarded as contrary to the interests of justice. As regards the specific conditions specified in paragraph 2, I will consider them in turn.

As for (a), I do not at present see why the report of Mrs O'Keefe should not be regarded as having been reasonably available to Mr S before the end of the case statement period. It was not addressed to any issue which had only emerged subsequently or which could not reasonably have been anticipated. No reason seems to have been given to the Tribunal, and none appears in the evidence. No convincing reason was suggested to me by Miss Scolding. However, in her skeleton argument for the respondent, Miss Stout conceded that condition (a) was satisfied. In the course of argument before me, she sought to resile from that concession. Changes of stance of this kind are always liable to lead to a perception of injustice, even if not actual injustice, and I am accordingly reluctant to express a concluded view on this condition since for the reasons I have already given a view on it is not essential to my decision.

As for (b), namely the requirement that the evidence in question be sent to the Tribunal and the other party "to arrive at least five working days before the hearing", there is an oddity here in that the definition of "working days" in Regulation 2 excludes any day in August: I am told it is unusual for this Tribunal to sit in August. There was therefore unquestionably a formal breach of this condition. I am bound to say that if this were the only difficulty it would be necessary to find a way of circumventing it in cases like the present, and it would be possible in my view to do so by reference to the provisions of paragraph 3. However, even if working days in August were treated as working days for present purposes, the condition is still not satisfied because Mrs O'Keefe's report was not sent to the Council until 18th August: it was sent by post, so that it could not have arrived until the following day, which is only four working days before the hearing. There was therefore unquestionably a breach, albeit a very limited one, of the spirit as well as the letter of condition (b).

As for (c), in my view the admission of the report would plainly have "impeded the efficient conduct of the hearing", in the sense that for the good case management reasons identified above the Tribunal had sought to exclude from the consideration of the August hearing matters of the type which the report appeared to cover. However, it is perhaps arguable that the problem was not so much about "the extent and form" of the evidence as about its content. It seems to me that condition (c) is primarily directed at cases where the evidence is so bulky or ill-presented that it would prove difficult to manage. However, again this is not an issue on which I need to reach a final view.

Miss Scolding said that even if she could not get home on paragraph 2 the case fell within paragraph 3. I cannot accept this. I can see no basis on which the circumstances of H's case can be regarded as "wholly exceptional" nor in any event, for the reasons already given do I accept that there was a serious risk of prejudice to H's interests if the evidence were excluded.

It is fair to say that the Tribunal, in giving its reasons for not admitting the evidence of Mrs O'Keefe, did not go in for this degree of analysis. In relation to the application to admit the written evidence it said simply:

I accept that the Tribunal's reasons are summarily expressed and that they do not explicitly identify the detailed reasoning in relation to each application, but I do not accept that they are so inadequate as to vitiate the decision in law. Given the procedural history known to both parties, I believe that it will have been sufficiently apparent from those short passages that the Tribunal's reasons were as I have more fully analysed them above. Even if that were not so, I would be prepared to hold that:

Therefore I conclude that the Tribunal was entitled in law to exclude both the written and the oral evidence of Mrs O'Keefe and that any deficiencies that there may be in the way it which it spelt out its reasoning are not such as to vitiate the fairness of the hearing or the lawfulness of the eventual decision.

Miss Scolding did not initially address me orally on this issue and was content to rely on the contents of her skeleton argument. Miss Stout dealt with the matter very briefly and Miss Scolding responded equally briefly in reply.

Miss Scolding's essential submission, put various ways, was that the Tribunal had inadequate evidence before it to justify the conclusion that Mount Grace was a suitable school to specify in part 4 of H's statement. In particular, she relied on the fact that the Tribunal had heard no evidence from any member of staff from Mount Grace, although she disavowed any submission that that was necessary as a matter of law. She referred to the decisions in S v City and Council of Swansea [2000] ERL 315 and R(Southwark) v SENDIST & Ors [2005] EWHC 1123 Admin. In my view, there is nothing in this point. Although the Tribunal had no evidence from any representative of Mount Grace itself, it had documentary evidence in the form of a recent OFSTED report and of the school's response to a questionnaire submitted by Mr and Mrs S. More significantly, it heard evidence both from Mrs Findley, the Council Officer responsible for H's case, who had nominated Mount Grace and had good knowledge of the provision which it could supply, and from Mrs Brown, who would be responsible for ensuring delivery and specialist language and speech provision at Mount Grace. That makes the case a different situation from that considered in the Swansea decision. There was ample evidence on the basis of which a specialist tribunal could be satisfied as to the appropriateness of Mount Grace as a school for H.

Miss Scolding sought to buttress her submission on this point by adducing evidence in the form of a statement from Mr S describing difficulties which he said H had encountered since starting at Mount Grace. This, she submitted, illustrated the problems which should have been anticipated from nominating Mount Grace without making sufficient enquiries into whether it could indeed provide the provision required. Mr S's evidence was answered by a supplementary statement from Mrs Findley. Although I do not have to, and do not, reach any final decision on the point, I am not satisfied in the light of that evidence that the problems encountered by H are likely to be fundamental or long-lasting or in any event that they reflect any fundamental problem about the ability of Mount Grace to provide the services required. However, such 'after the event' evidence is of limited value. What matters is whether the Tribunal was able to reach the decision that it did on the material before it, and I am satisfied that it was.

For these reasons, this appeal must be dismissed. I am sure that my decision will be disappointing to Mr and Mrs S. They deserve sympathy and respect for the conscientiousness that they have shown in trying to get the most appropriate school for their daughter. But the ultimate decision is and has to be that of the Tribunal. I have held that it reached its decision lawfully and, as far as the law is concerned, that has to be the end of the road. I feel sure that in their concern for H's welfare and interests Mr and Mrs S will now do all they can to ensure that her placement at Mount Grace is a success.

MISS STOUT: My Lord, I believe there is nothing else, I am grateful.

MISS SCOLDING: My Lord, the only issue that needs to be dealt with is as we are publicly funded, I would merely ask for a public assessment of our costs.

MR JUSTICE UNDERHILL: Yes I am old fashioned I would have called it legal aid taxation in the old days. I simply order public funding assessment, that is enough.

MISS SCOLDING: My Lord, yes there used to be a form of words I am told that has fallen out of fashion.

MR JUSTICE UNDERHILL: As long as the associate does not want more than that.

THE CLERK OF THE COURT: No, my Lord.